5.4 MiB
5.4 MiB
073f3b9eb0c7088be4ef688f4edfdb6d.pdf effective_date jurisdiction party term EX-10 5 ex10-4 .htm EXHIBIT 10.4\nExhibit 10.4\nAMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nTHIS AMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made and entered into\nas effective of May 20, 2014 (the “Revised Effective Date”), by and between LIQUIDMETAL TECHNOLOGIES, INC., a Delaware\ncorporation having its principal place of business at 30452 Esperanza, Rancho Santa Margarita, CA 92688, on behalf of itself afznd its affiliates or\nsubsidiaries other than Crucible Intellectual Property, LLC (collectively “Liquidmetal”), and VISSER PRECISION CAST, LLC, a Colorado\nlimited liability company having its principal place of business at 6275 E 39 Street, Denver, CO 80207 (“VPC”). Liquidmetal and VPC are\nparties to that certain Settlement Agreement and Mutual General Release (“Settlement Agreement”), Amended and Restated VPC Sublicense\nAgreement (“Sublicense”), Amended and Restated Common Stock Purchase Warrant (“Warrant”), and Amended and Restated Registration\nRights Agreement (“Rights Agreement”), each dated as of May 20, 2014. Liquidmetal and VPC are hereinafter referred to individually as a\n“Party” and together as the “Parties.”\nWHEREAS, Liquidmetal and VPC are parties to that certain Mutual Non-Disclosure Agreement (the “Original Agreement”) dated\nJune 1, 2012 (the “Original Effective Date”); and\nWHEREAS, the Parties have entered into the Settlement Agreement, the Sublicense, the Warrant and the Rights Agreement (such\nAgreements, together with this Agreement, collectively the “Revised Transaction Documents”); and\nWHEREAS, during the course of their business relationship, both prior to the Original Effective Date and thereafter, each Party has\nhad and may in the future have access to Confidential Information (as defined below) of the other Party,\nNOW, THEREFORE, in consideration of the foregoing recital and the covenants, terms, and conditions set forth below, the Parties\nhereby agree as follows:\n1.\nCERTAIN DEFINITIONS.\n“Affiliate” shall mean, with respect to a Party, any other entity that controls, is controlled by, or is under common control with such Party. The\nterm “Affiliate” includes, without limitation, all subsidiaries, parent companies, partnerships, and joint ventures of the specified Party.\n“Confidential Information” shall mean any and all nonpublic information concerning or arising from Discloser’s or its Affiliates’ business,\nwhether disclosed prior to or after the Original Effective Date or the Revised Effective Date, and including particularly, but not by way of\nlimitation, trade secrets used, developed or acquired by Discloser in connection with its business; information concerning the manner and details\nof Discloser’s operation, organization and management; financial information and/or documents and nonpublic policies, procedures and other\nprinted or written material generated or used in connection with Discloser ’s business; Discloser ’s business plans and strategies; the identities of\ndistributors, contractors and vendors utilized in Discloser’s business; the details of Discloser ’s relationship with such distributors, contractors\nand vendors; nonpublic forms, contracts and other documents used in Discloser’s business; the nature and content of computer software or\ntechnologies used in Discloser’s business, whether proprietary to Discloser or used by Discloser under license from a third party; Discloser’s\ninventions, trade secrets, know-how, products or processes in development, engineering, methodologies, concepts, techniques, discoveries,\nprocesses, drawings, designs, research, and plans or specifications relating thereto; and all other information concerning Discloser’s concepts,\nprospects, customers, employees, contractors, earnings, products, services, equipment, systems, and/or prospective and executed contracts and\nother business arrangements. “Confidential Information” also includes (i) any information described above which the Discloser obtains from a\nthird party and which the Discloser treats as proprietary or designates as confidential, whether or not owned or developed by the Discloser, and\n(ii) any reports, analysis, compilations, or other documents prepared by Recipient in which any of Discloser’s Confidential Information is\ndescribed or discussed.\n“Discloser” shall mean the Party that is disclosing Confidential Information under this Agreement, regardless of whether such Confidential\nInformation is being provided directly by such Party, by a Representative of the Party, or by any other person or entity that has an obligation of\nconfidentiality with respect to the Confidential Information being disclosed.\n“Recipient” shall mean the Party receiving Confidential Information that is protected under this Agreement.\n“Representatives” shall consist of the directors, officers, employees, financial advisors, accountants, attorneys, consultants, insurers and\nAffiliates of the applicable Party.\n1\nth\n2.\nRESTRICTIONS ON DISCLOSURE AND USE.\n(a)\nRestrictions and Covenants. Each Party agrees that, in its capacity as a Recipient of the other Party’s Confidential\nInformation, it will (i) hold the Discloser’s Confidential Information in strict confidence, use a high degree of care in safeguarding the\nDiscloser ’s Confidential Information, and will take reasonable precautions to protect the Discloser ’s Confidential Information including, at a\nminimum, all precautions the Recipient normally employs with respect to its own confidential information, (ii) not divulge any of the\nDiscloser ’s Confidential Information or any information derived therefrom (including results of tests on material samples) to any other person or\nentity (except as set forth in Section 2(b) below), (iii) not use the Discloser’s Confidential Information for any purpose whatsoever other than as\nmay be directly in furtherance of the purposes of one or more of the Revised Transaction Documents, (iv) not export the Discloser ’s\nConfidential Information in violation of the United States Export Administration Act and regulations thereunder, or any other applicable export\ncontrol laws or regulations, (v) notify the Discloser in writing immediately upon discovery by the Recipient or its Representatives of any\nunauthorized use or disclosure of the Discloser’s Confidential Information, and (vi) upon termination or expiration of the applicable Revised\nTransaction Document, return to the Discloser or destroy (at the option of the Recipient) all such Confidential Information disclosed thereunder,\nincluding all originals, copies and extracts, provided that the Recipient may retain any information to which it has a continuing license for use,\nand provided further that Recipient’s legal counsel may retain one copy of the returned or destroyed items (excluding material samples provided\nby Liquidmetal) for archival purposes. Except as expressly permitted by the Revised Transaction Documents, Recipient will not file any\ncopyright registrations, patent applications, or similar registrations of ownership on Discloser’s Confidential Information or on any invention,\ntechnology, development, or information that utilizes or incorporates Discloser ’s Confidential Information, and in the event that Recipient does\nso in violation of this Agreement, Recipient will assign to Discloser such registrations or applications.\n(b)\nDisclosure to Representatives. The Recipient may only disseminate the Discloser ’s Confidential Information to its\nRepresentatives who have been informed of the Recipient’s obligations under this Agreement and are bound by an obligation of confidentiality\nand non-use with respect to the Discloser’s Confidential Information. The Recipient agrees to reasonably restrict disclosure of the Discloser’s\nConfidential Information to the smallest number of the Recipient’s Representatives which have a need to know the Confidential Information.\nThe Recipient shall be responsible for enforcing this Agreement as to the Recipient’s Representatives and shall take such action (legal or\notherwise) to the extent necessary to cause them to comply with this Agreement.\n(c)\nGeneral Exceptions. The restrictions on the Recipient's disclosure and use of the Discloser’s Confidential Information under\nthis Section 2 will not apply to the extent of any Confidential Information:\n(i)\nthat was already rightfully known by the Recipient prior to the disclosure as evidenced by the Recipient’s written\ndocumentation;\n(ii)\nthat becomes publicly known without breach of the Recipient's obligations under this Agreement;\n(iii)\nthat is rightfully acquired by the Recipient from a third party which is not subject to any restriction or obligation (whether\ncontractual, fiduciary, or otherwise) on disclosure or use of such Confidential Information;\n(iv)\nthat is independently developed by the Recipient or its Representatives without knowledge or reference to such information, as\nevidenced by written documentation or other tangible evidence;\n(v)\nother than as set forth in Section 2(d) below, that is required to be disclosed by law or by court order or government order,\nprovided that the Recipient (a) promptly notifies the Discloser of any such disclosure requirement so that the Discloser may\nseek an appropriate protective order (or other appropriate protections), and (b) provides reasonable assistance (at no cost to the\nRecipient) in obtaining such protective order or other form of protection; or\n(vi)\nas to which and to the extent to which (A) the Recipient has been authorized to disclose or use pursuant to one of the Revised\nTransaction Documents; or (B) the Recipient has otherwise received prior express written consent from an authorized officer\nof the Discloser to disclose or use.\n(d)\nTo the extent that a Party is a publicly-traded company, and subject to laws and regulations requiring disclosure of the\nRevised Transaction Documents to the U.S. Securities and Exchange Commission (the “SEC”), such Party shall (i) seek confidential treatment\nfor any Revised Transaction Document disclosed to or filed with the SEC, or (ii) redact the financial terms from any Revised Transaction\nDocument disclosed to or filed with the SEC. A specific item of Confidential Information shall not be deemed to fall within the foregoing\nexceptions in Section 2(c) merely because such specific item is embraced or implied by more general information that falls within the foregoing\nexceptions.\n2\n3.\nTERM AND TERMINATION\nThe obligations of the Parties under this Agreement shall survive for a period of three (3) years from the termination or expiration of\nthe last of the Revised Transaction Documents to terminate or expire; provided that this Agreement shall continue in full force and effect with\nrespect to any Confidential Information that constitutes a trade secret under applicable law for such additional period as such Confidential\nInformation remains a trade secret under such applicable law. All rights and actions of a Disclosing Party accrued prior to the applicable date of\nany termination or expiration under this Section 3 shall survive such termination or expiration for the duration of any applicable statute of\nlimitations. For clarity, this Agreement shall apply as well with respect to Confidential Information disclosed pursuant to or otherwise covered\nby the Original Agreement.\n4.\nADDITIONAL COVENANTS AND AGREEMENTS.\n(a) No Obligation to Disclose; No Warranty. No provision of this Agreement shall be construed as an obligation by either Party to\ndisclose any Confidential Information to the other Party. Except as expressly set forth in the Revised Transaction Documents, all Confidential\nInformation, including material samples, are provided “AS IS”, without warranty or guarantee of any kind as to its accuracy, completeness,\noperability, fitness for a particular purpose, or any other warranty, express or implied. Except as expressly set forth in the Revised Transaction\nDocuments, or with respect to a breach of a Revised Transaction Document, neither Party shall be liable to the other for any damages, loss,\nexpense, or claim of loss arising from use or reliance on the Confidential Information of the other Party.\n(b) No License Implied. Each Party acknowledges and agrees that except as otherwise expressly set forth in the Revised Transaction\nDocuments, all Confidential Information (and any proprietary and novel features contained in the Confidential Information) shall remain the\nproperty of the Discloser and, except as otherwise expressly set forth in the Revised Transaction Documents, no license or right with respect\nthereto is granted to the Recipient, whether by implication or otherwise. Except as otherwise expressly set forth in the Revised Transaction\nDocuments, the Recipient shall have no rights whatsoever under any patent, trademark, copyright, or application therefor, or any other\nproprietary right of the Discloser, and the Recipient agrees that the Discloser shall remain free to grant such rights to others and to disclose the\nConfidential Information to anyone the Discloser chooses.\n(c) Third-Party Information. The Parties hereby state that they do not desire to acquire from each other, and they hereby agree not to\nfurnish to one another, any trade secret, proprietary know-how, or confidential information acquired from third parties (unless the third party\nprovides prior written consent to such disclosure). Further, each Party represents and warrants to the other that it is free to divulge, without any\nobligation to or violation of the rights of any third party, any and all information which it will demonstrate, divulge, or in any other manner\nmake known to the other in connection with this Agreement.\n(d) Enforcement. Each Party acknowledges and agrees that that any breach of this Agreement by it may cause irreparable harm to\nthe other Party and that the remedies for breach may include injunctive relief against such breach, in addition to damages and other available\nremedies. Except for an action for injunctive relief, disputes arising under this Agreement shall be resolved pursuant to Section 15 of the\nSettlement Agreement and Mutual General Release executed by and between the Parties on or about the Revised Effective Date. The prevailing\nParty shall be entitled to the award of its reasonable attorneys’ fees in any action to enforce this Agreement, to the extent such fees were\nincurred to enforce such Party’s rights under this Agreement.\n(e) Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, other\nthan such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of New York.\n(f) Notices. All notices from one Party to the other required or permitted under this Agreement shall be in writing, shall refer\nspecifically to this Agreement, and shall be delivered in person, or sent by electronic or facsimile transmission for which a confirmation of\ndelivery is obtained, or sent by registered mail or express courier services providing evidence of delivery, in each case to the recipient Party’s\nrespective address set forth on the signature page hereof (or to such updated address as may be specified in writing to the other Party from time\nto time). Such notices will be deemed effective as of the date so delivered or on the third business day following mailing if sent by registered\nmail.\n(g)\nNo Assignment. Neither Party shall assign, transfer, subcontract or otherwise delegate any of its obligations under this\nAgreement without the other Party’s prior written consent in each instance other than as a part of any merger, consolidation, or other statutory\nbusiness combination or as a part of the sale of all or substantially all of their assets. Any attempted assignment, transfer, subcontracting or other\ndelegation without such consent shall be void and shall constitute a breach of this Agreement. Subject to the foregoing, this Agreement shall\ninure to the benefit of the Parties’ successors and assigns.\n3\n(h) Severability. If a specific provision of this Agreement is determined to be invalid or unenforceable for any reason, the specific\nprovision shall be interpreted to call for the protection of the Discloser’s rights to the greatest extent which is valid and enforceable. In the event\nthat a specific provision of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction and the provision\ncannot be, or the court otherwise declines to permit the provision to be interpreted to call for protection of the Discloser ’s rights to an extent\nwhich is valid and enforceable, the remainder of this Agreement and application of such provision to other persons or circumstances shall be\ninterpreted so as best to reasonably effect the intent of the Parties hereto. The Parties further agree to replace such void or unenforceable\nprovision with a provision which will achieve, to the extent possible, the economic, business and other purposes of the void or unenforceable\nprovision.\n(i) Relationship of Parties. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or\npartnership between the Parties. No Party shall have the power to control the activities and operations of another, and their status is, and at all\ntimes will continue to be, that of independent contractors with respect to each other. No Party shall hold itself out as having any authority or\nrelationship in contravention of this Section, and except as specifically called for or permitted herein, no Party shall act on behalf of another\nParty or enter into any contracts, warranty, or representation as to any other matter on the behalf of another Party.\n(j) Entire Agreement; Amendment; Waiver. This Agreement, together with the Revised Transaction Documents, constitutes the\nentire agreement between the Parties relating to the subject matter hereof and supersedes and cancels all other prior agreements and\nunderstandings of the Parties in connection with such subject matter. The headings or titles in this Agreement are for purposes of reference only\nand shall not in any way affect the interpretation or construction of this Agreement. No waiver of any of the provisions of this Agreement shall\nbe valid unless in a written document, signed by the Party against whom such a waiver is sought to be enforced, nor shall failure to enforce any\nright hereunder constitute a continuing waiver of the same or a waiver of any other right hereunder. All amendments of this Agreement shall be\nmade in writing and signed by the Parties, and no oral amendments shall be binding on the Parties.\n(k) Execution; Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of\nwhich together will constitute the same agreement. The Parties agree that this Agreement may be executed by each Party signing one original\nand providing a facsimile (fax) copy, or scanned copy by .pdf, of the signature page to the other Party, provided that each Party agrees to make\nits document with the original signature available to the other Party upon request, and further provided that the Parties agree that the fax or\nscanned signature shall be treated as if it were an original signature, and neither Party shall contest the validity of this Agreement based on the\nuse of fax or scanned signatures.\n(l) Interpretation. The Parties have each been represented by counsel in the negotiation of this Agreement and have jointly prepared\nthis Agreement with counsels’ assistance. In the event of an ambiguity or a question of contract interpretation arises, no provision of this\nAgreement shall be construed based on any particular Party having drafted the Agreement or such provision. Further, neither the history of\nnegotiations between the parties, nor the fact that provisions of this Agreement (or portions thereof) have been inserted, deleted or modified in\nthe course of preparing Agreement drafts, shall be used to construe the meaning of any provision.\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed effective as of the Revised Effective Date, by their\nofficers, duly authorized.\nLiquidmetal Technology, Inc.\nVisser Precision Cast, LLC\n/s/ Tom Steipp\n/s/ Gregory A. Ruegsegger\nTom Steipp\nBy: Gregory A. Ruegsegger\nTitle: President/CEO\nTitle: Vice President\nDate: May 20, 2014\nDate: May 20, 2014\nAddress:\nAddress:\n30452 Esperanza\n6275 E. 39th Street\nRancho Santa Margarita, CA 92688\nDenver, CO 80207\n4 EX-10 5 ex10-4.htm EXHIBIT 10.4\nExhibit 10.4\n>\nAMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nTHIS AMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made and entered into\nas effective of May 20, 2014 (the “Revised Effective Date”), by and between LIQUIDMETAL TECHNOLOGIES, INC., a Delaware\ncorporation having its principal place of business at 30452 Esperanza, Rancho Santa Margarita, CA 92688, on behalf of itself and its affiliates or\nsubsidiaries other than Crucible Intellectual Property, LLC (collectively “Liquidmetal”), and VISSER PRECISION CAST, LLC, a Colorado\nlimited liability company having its principal place of business at 6275 E 39t Street, Denver, CO 80207 (“VPC”). Liquidmetal and VPC are\nparties to that certain Settlement Agreement and Mutual General Release (“Settlement Agreement”), Amended and Restated VPC Sublicense\nAgreement (“Sublicense”), Amended and Restated Common Stock Purchase Warrant (“Warrant”), and Amended and Restated Registration\nRights Agreement (“Rights Agreement”), each dated as of May 20, 2014. Liquidmetal and VPC are hereinafter referred to individually as a\n“Party” and together as the “Parties.”\n \n \n \nWHEREAS, Liquidmetal and VPC are parties to that certain Mutual Non-Disclosure Agreement (the “Original Agreement”) dated\nJune 1, 2012 (the “Original Effective Date”); and\nWHEREAS, the Parties have entered into the Settlement Agreement, the Sublicense, the Warrant and the Rights Agreement (such\nAgreements, together with this Agreement, collectively the “Revised Transaction Documents”); and\nWHEREAS, during the course of their business relationship, both prior to the Original Effective Date and thereafter, each Party has\nhad and may in the future have access to Confidential Information (as defined below) of the other Party,\nNOW, THEREFORE, in consideration of the foregoing recital and the covenants, terms, and conditions set forth below, the Parties\nhereby agree as follows:\n1. CERTAIN DEFINITIONS.\n“Affiliate” shall mean, with respect to a Party, any other entity that controls, is controlled by, or is under common control with such Party. The\nterm “Affiliate” includes, without limitation, all subsidiaries, parent companies, partnerships, and joint ventures of the specified Party.\n“Confidential Information” shall mean any and all nonpublic information concerning or arising from Discloser’s or its Affiliates’ business,\nwhether disclosed prior to or after the Original Effective Date or the Revised Effective Date, and including particularly, but not by way of\nlimitation, trade secrets used, developed or acquired by Discloser in connection with its business; information concerning the manner and details\nof Discloser’s operation, organization and management; financial information and/or documents and nonpublic policies, procedures and other\nprinted or written material generated or used in connection with Discloser’s business; Discloser’s business plans and strategies; the identities of\ndistributors, contractors and vendors utilized in Discloser’s business; the details of Discloser’s relationship with such distributors, contractors\nand vendors; nonpublic forms, contracts and other documents used in Discloser’s business; the nature and content of computer software or\ntechnologies used in Discloser’s business, whether proprietary to Discloser or used by Discloser under license from a third party; Discloser’s\ninventions, trade secrets, know-how, products or processes in development, engineering, methodologies, concepts, techniques, discoveries,\nprocesses, drawings, designs, research, and plans or specifications relating thereto; and all other information concerning Discloser’s concepts,\nprospects, customers, employees, contractors, earnings, products, services, equipment, systems, and/or prospective and executed contracts and\nother business arrangements. “Confidential Information” also includes (i) any information described above which the Discloser obtains from a\nthird party and which the Discloser treats as proprietary or designates as confidential, whether or not owned or developed by the Discloser, and\n(ii) any reports, analysis, compilations, or other documents prepared by Recipient in which any of Discloser’s Confidential Information is\ndescribed or discussed.\n“Discloser” shall mean the Party that is disclosing Confidential Information under this Agreement, regardless of whether such Confidential\nInformation is being provided directly by such Party, by a Representative of the Party, or by any other person or entity that has an obligation of\nconfidentiality with respect to the Confidential Information being disclosed.\n“Recipient” shall mean the Party receiving Confidential Information that is protected under this Agreement.\n“Representatives” shall consist of the directors, officers, employees, financial advisors, accountants, attorneys, consultants, insurers and\nAffiliates of the applicable Party.\n \n2. RESTRICTIONS ON DISCLOSURE AND USE.\n(a) Restrictions and Covenants. Each Party agrees that, in its capacity as a Recipient of the other Party’s Confidential\nInformation, it will (i) hold the Discloser’s Confidential Information in strict confidence, use a high degree of care in safeguarding the\nDiscloser’s Confidential Information, and will take reasonable precautions to protect the Discloser’s Confidential Information including, at a\nminimum, all precautions the Recipient normally employs with respect to its own confidential information, (ii) not divulge any of the\nDiscloser’s Confidential Information or any information derived therefrom (including results of tests on material samples) to any other person or\nentity (except as set forth in Section 2(b) below), (iii) not use the Discloser’s Confidential Information for any purpose whatsoever other than as\nmay be directly in furtherance of the purposes of one or more of the Revised Transaction Documents, (iv) not export the Discloser’s\nConfidential Information in violation of the United States Export Administration Act and regulations thereunder, or any other applicable export\ncontrol laws or regulations, (v) notify the Discloser in writing immediately upon discovery by the Recipient or its Representatives of any\nunauthorized use or disclosure of the Discloser’s Confidential Information, and (vi) upon termination or expiration of the applicable Revised\nTransaction Document, return to the Discloser or destroy (at the option of the Recipient) all such Confidential Information disclosed thereunder,\nincluding all originals, copies and extracts, provided that the Recipient may retain any information to which it has a continuing license for use,\nand provided further that Recipient’s legal counsel may retain one copy of the returned or destroyed items (excluding material samples provided\nby Liquidmetal) for archival purposes. Except as expressly permitted by the Revised Transaction Documents, Recipient will not file any\ncopyright registrations, patent applications, or similar registrations of ownership on Discloser’s Confidential Information or on any invention,\ntechnology, development, or information that utilizes or incorporates Discloser’s Confidential Information, and in the event that Recipient does\nso in violation of this Agreement, Recipient will assign to Discloser such registrations or applications.\n(b) Disclosure to Representatives. The Recipient may only disseminate the Discloser’s Confidential Information to its\nRepresentatives who have been informed of the Recipient’s obligations under this Agreement and are bound by an obligation of confidentiality\nand non-use with respect to the Discloser’s Confidential Information. The Recipient agrees to reasonably restrict disclosure of the Discloser’s\nConfidential Information to the smallest number of the Recipient’s Representatives which have a need to know the Confidential Information.\nThe Recipient shall be responsible for enforcing this Agreement as to the Recipient’s Representatives and shall take such action (legal or\notherwise) to the extent necessary to cause them to comply with this Agreement.\n(©) General Exceptions. The restrictions on the Recipient's disclosure and use of the Discloser’s Confidential Information under\nthis Section 2 will not apply to the extent of any Confidential Information:\n@) that was already rightfully known by the Recipient prior to the disclosure as evidenced by the Recipient’s written\ndocumentation;\n(ii) that becomes publicly known without breach of the Recipient's obligations under this Agreement;\n(iii) that is rightfully acquired by the Recipient from a third party which is not subject to any restriction or obligation (whether\ncontractual, fiduciary, or otherwise) on disclosure or use of such Confidential Information;\n@iv) that is independently developed by the Recipient or its Representatives without knowledge or reference to such information, as\nevidenced by written documentation or other tangible evidence;\nV) other than as set forth in Section 2(d) below, that is required to be disclosed by law or by court order or government order,\nprovided that the Recipient (a) promptly notifies the Discloser of any such disclosure requirement so that the Discloser may\nseek an appropriate protective order (or other appropriate protections), and (b) provides reasonable assistance (at no cost to the\nRecipient) in obtaining such protective order or other form of protection; or\n(vi) as to which and to the extent to which (A) the Recipient has been authorized to disclose or use pursuant to one of the Revised\nTransaction Documents; or (B) the Recipient has otherwise received prior express written consent from an authorized officer\nof the Discloser to disclose or use.\n(d) To the extent that a Party is a publicly-traded company, and subject to laws and regulations requiring disclosure of the\nRevised Transaction Documents to the U.S. Securities and Exchange Commission (the “SEC™), such Party shall (i) seek confidential treatment\nfor any Revised Transaction Document disclosed to or filed with the SEC, or (ii) redact the financial terms from any Revised Transaction\nDocument disclosed to or filed with the SEC. A specific item of Confidential Information shall not be deemed to fall within the foregoing\nexceptions in Section 2(c) merely because such specific item is embraced or implied by more general information that falls within the foregoing\nexceptions.\n \n3. TERM AND TERMINATION\nThe obligations of the Parties under this Agreement shall survive for a period of three (3) years from the termination or expiration of\nthe last of the Revised Transaction Documents to terminate or expire; provided that this Agreement shall continue in full force and effect with\nrespect to any Confidential Information that constitutes a trade secret under applicable law for such additional period as such Confidential\nInformation remains a trade secret under such applicable law. All rights and actions of a Disclosing Party accrued prior to the applicable date of\nany termination or expiration under this Section 3 shall survive such termination or expiration for the duration of any applicable statute of\nlimitations. For clarity, this Agreement shall apply as well with respect to Confidential Information disclosed pursuant to or otherwise covered\nby the Original Agreement.\n4. ADDITIONAL COVENANTS AND AGREEMENTS.\n(@) No Obligation to Disclose; No Warranty. No provision of this Agreement shall be construed as an obligation by either Party to\ndisclose any Confidential Information to the other Party. Except as expressly set forth in the Revised Transaction Documents, all Confidential\nInformation, including material samples, are provided “AS IS”, without warranty or guarantee of any kind as to its accuracy, completeness,\noperability, fitness for a particular purpose, or any other warranty, express or implied. Except as expressly set forth in the Revised Transaction\nDocuments, or with respect to a breach of a Revised Transaction Document, neither Party shall be liable to the other for any damages, loss,\nexpense, or claim of loss arising from use or reliance on the Confidential Information of the other Party.\n(b) No License Implied. Each Party acknowledges and agrees that except as otherwise expressly set forth in the Revised Transaction\nDocuments, all Confidential Information (and any proprietary and novel features contained in the Confidential Information) shall remain the\nproperty of the Discloser and, except as otherwise expressly set forth in the Revised Transaction Documents, no license or right with respect\nthereto is granted to the Recipient, whether by implication or otherwise. Except as otherwise expressly set forth in the Revised Transaction\nDocuments, the Recipient shall have no rights whatsoever under any patent, trademark, copyright, or application therefor, or any other\nproprietary right of the Discloser, and the Recipient agrees that the Discloser shall remain free to grant such rights to others and to disclose the\nConfidential Information to anyone the Discloser chooses.\n(c) Third-Party Information. The Parties hereby state that they do not desire to acquire from each other, and they hereby agree not to\nfurnish to one another, any trade secret, proprietary know-how, or confidential information acquired from third parties (unless the third party\nprovides prior written consent to such disclosure). Further, each Party represents and warrants to the other that it is free to divulge, without any\nobligation to or violation of the rights of any third party, any and all information which it will demonstrate, divulge, or in any other manner\nmake known to the other in connection with this Agreement.\n(d) Enforcement. Each Party acknowledges and agrees that that any breach of this Agreement by it may cause irreparable harm to\nthe other Party and that the remedies for breach may include injunctive relief against such breach, in addition to damages and other available\nremedies. Except for an action for injunctive relief, disputes arising under this Agreement shall be resolved pursuant to Section 15 of the\nSettlement Agreement and Mutual General Release executed by and between the Parties on or about the Revised Effective Date. The prevailing\nParty shall be entitled to the award of its reasonable attorneys’ fees in any action to enforce this Agreement, to the extent such fees were\nincurred to enforce such Party’s rights under this Agreement.\n(e) Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, other\nthan such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of New York.\n€3] Notices. All notices from one Party to the other required or permitted under this Agreement shall be in writing, shall refer\nspecifically to this Agreement, and shall be delivered in person, or sent by electronic or facsimile transmission for which a confirmation of\ndelivery is obtained, or sent by registered mail or express courier services providing evidence of delivery, in each case to the recipient Party’s\nrespective address set forth on the signature page hereof (or to such updated address as may be specified in writing to the other Party from time\nto time). Such notices will be deemed effective as of the date so delivered or on the third business day following mailing if sent by registered\nmail.\n(8) No Assignment. Neither Party shall assign, transfer, subcontract or otherwise delegate any of its obligations under this\nAgreement without the other Party’s prior written consent in each instance other than as a part of any merger, consolidation, or other statutory\nbusiness combination or as a part of the sale of all or substantially all of their assets. Any attempted assignment, transfer, subcontracting or other\ndelegation without such consent shall be void and shall constitute a breach of this Agreement. Subject to the foregoing, this Agreement shall\ninure to the benefit of the Parties’ successors and assigns.\n \n(h) Severability. If a specific provision of this Agreement is determined to be invalid or unenforceable for any reason, the specific\nprovision shall be interpreted to call for the protection of the Discloser’s rights to the greatest extent which is valid and enforceable. In the event\nthat a specific provision of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction and the provision\ncannot be, or the court otherwise declines to permit the provision to be interpreted to call for protection of the Discloser’s rights to an extent\nwhich is valid and enforceable, the remainder of this Agreement and application of such provision to other persons or circumstances shall be\ninterpreted so as best to reasonably effect the intent of the Parties hereto. The Parties further agree to replace such void or unenforceable\nprovision with a provision which will achieve, to the extent possible, the economic, business and other purposes of the void or unenforceable\nprovision.\n@) Relationship of Parties. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or\npartnership between the Parties. No Party shall have the power to control the activities and operations of another, and their status is, and at all\ntimes will continue to be, that of independent contractors with respect to each other. No Party shall hold itself out as having any authority or\nrelationship in contravention of this Section, and except as specifically called for or permitted herein, no Party shall act on behalf of another\nParty or enter into any contracts, warranty, or representation as to any other matter on the behalf of another Party.\n(G) Entire Agreement; Amendment; Waiver. This Agreement, together with the Revised Transaction Documents, constitutes the\nentire agreement between the Parties relating to the subject matter hereof and supersedes and cancels all other prior agreements and\nunderstandings of the Parties in connection with such subject matter. The headings or titles in this Agreement are for purposes of reference only\nand shall not in any way affect the interpretation or construction of this Agreement. No waiver of any of the provisions of this Agreement shall\nbe valid unless in a written document, signed by the Party against whom such a waiver is sought to be enforced, nor shall failure to enforce any\nright hereunder constitute a continuing waiver of the same or a waiver of any other right hereunder. All amendments of this Agreement shall be\nmade in writing and signed by the Parties, and no oral amendments shall be binding on the Parties.\n(k) Execution; Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of\nwhich together will constitute the same agreement. The Parties agree that this Agreement may be executed by each Party signing one original\nand providing a facsimile (fax) copy, or scanned copy by .pdf, of the signature page to the other Party, provided that each Party agrees to make\nits document with the original signature available to the other Party upon request, and further provided that the Parties agree that the fax or\nscanned signature shall be treated as if it were an original signature, and neither Party shall contest the validity of this Agreement based on the\nuse of fax or scanned signatures.\n(1) Interpretation. The Parties have each been represented by counsel in the negotiation of this Agreement and have jointly prepared\nthis Agreement with counsels’ assistance. In the event of an ambiguity or a question of contract interpretation arises, no provision of this\nAgreement shall be construed based on any particular Party having drafted the Agreement or such provision. Further, neither the history of\nnegotiations between the parties, nor the fact that provisions of this Agreement (or portions thereof) have been inserted, deleted or modified in\nthe course of preparing Agreement drafts, shall be used to construe the meaning of any provision.\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed effective as of the Revised Effective Date, by their\nofficers, duly authorized.\nLiquidmetal Technology, Inc. Visser Precision Cast, LLC\n/s/ Tom Steipp /s/ Gregory A. Ruegsegger\nTom Steipp By: Gregory A. Ruegsegger\nTitle: President/CEO Title: Vice President\nDate: May 20, 2014 Date: May 20, 2014\nAddress: Address:\n30452 Esperanza 6275 E. 39th Street\nRancho Santa Margarita, CA 92688 Denver, CO 80207 EX-10 ex10-4.htm EXHIBIT 10.4\nExhibit 10.4\nAMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nTHIS AMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT (this "Agreement") is made and entered into\nas\neffective of May 20, 2014 (the "Revised Effective Date"), by and between LIQUIDMETAL TECHNOLOGIES, INC., a Delaware\ncorporation having its principal place of business at 30452 Esperanza, Rancho Santa Margarita, CA 92688, on behalf of itself and its affiliates\nor\nsubsidiaries other than Crucible Intellectual Property, LLC (collectively "Liquidmetal"), and VISSER PRECISION CAST, LLC, a Colorado\nlimited liability company having its principal place of business at 6275 E 39th Street, Denver, CO 80207 ("VPC"). Liquidmetal and VPC are\nparties to that certain Settlement Agreement and Mutual General Release ("Settlement Agreement"), Amended and Restated VPC Sublicense\nAgreement ("Sublicense"), Amended and Restated Common Stock Purchase Warrant ("Warrant"), and Amended and Restated Registration\nRights Agreement ("Rights Agreement"), each dated as of May 20, 2014. Liquidmetal and VPC are hereinafter referred to individually as a\n"Party." and together as the "Parties."\nWHEREAS, Liquidmetal and VPC are parties to that certain Mutual Non-Disclosure Agreement (the "Original Agreement") dated\nJune 1, 2012 (the "Original Effective Date"); and\nWHEREAS, the Parties have entered into the Settlement Agreement, the Sublicense, the Warrant and the Rights Agreement (such\nAgreements, together with this Agreement, collectively the "Revised Transaction Documents"); and\nWHEREAS, during the course of their business relationship, both prior to the Original Effective Date and thereafter, each Party has\nhad and may in the future have access to Confidential Information (as defined below) of the other Party,\nNOW, THEREFORE, in consideration of the foregoing recital and the covenants, terms, and conditions set forth below, the Parties\nhereby agree as follows:\n1.\nCERTAIN DEFINITIONS.\n"Affiliate" shall mean, with respect to a Party, any other entity that controls, is controlled by, or is under common control with such Party. The\nterm "Affiliate" includes, without limitation, all subsidiaries, parent companies, partnerships, and joint ventures of the specified Party.\n"Confidential Information" shall mean any and all nonpublic information concerning or arising from Discloser's or its Affiliates' business,\nwhether disclosed prior to or after the Original Effective Date or the Revised Effective Date, and including particularly, but not by way of\nlimitation, trade secrets used, developed or acquired by Discloser in connection with its business; information concerning the manner and details\nof Discloser's operation, organization and management; financial information and/or documents and nonpublic policies, procedures and other\nprinted or written material generated or used in connection with Discloser's business; Discloser's business plans and strategies; the identities of\ndistributors, contractors and vendors utilized in Discloser's business; the details of Discloser's relationship with such distributors, contractors\nand vendors; nonpublic forms, contracts and other documents used in Discloser's business; the nature and content of computer software or\ntechnologies used in Discloser's business, whether proprietary to Discloser or used by Discloser under license from a third party; Discloser's\ninventions, trade secrets, know-how, products or processes in development, engineering, methodologies, concepts, techniques, discoveries,\nprocesses, drawings, designs, research, and plans or specifications relating thereto; and all other information concerning Discloser's concepts,\nprospects, customers, employees, contractors, earnings, products, services, equipment, systems, and/or prospective and executed contracts and\nother business arrangements. "Confidential Information" also includes (i) any information described above which the Discloser obtains from\na\nthird party and which the Discloser treats as proprietary or designates as confidential, whether or not owned or developed by the Discloser, and\n(ii) any reports, analysis, compilations, or other documents prepared by Recipient in which any of Discloser's Confidential Information is\ndescribed or discussed.\n"Discloser" shall mean the Party that is disclosing Confidential Information under this Agreement, regardless of whether such Confidential\nInformation is being provided directly by such Party, by a Representative of the Party, or by any other person or entity that has an obligation of\nconfidentiality with respect to the Confidential Information being disclosed.\n"Recipient" shall mean the Party receiving Confidentia Information that is protected under this Agreement.\n"Representatives" shall consist of the directors, officers, employees, financial advisors, accountants, attorneys, consultants, insurers and\nAffiliates of the applicable Party.\n1\n2.\nRESTRICTIONS ON DISCLOSURE AND USE.\n(a)\nRestrictions and Covenants. Each Party agrees that, in its capacity as a Recipient of the other Party's Confidentia\nInformation, it will (i) hold the Discloser's Confidential Information in strict confidence, use a high degree of care in safeguarding the\nDiscloser's Confidential Information, and will take reasonable precautions to protect the Discloser's Confidential Information including, at a\nminimum, all precautions the Recipient normally employs with respect to its own confidential information, (ii) not divulge any of the\nDiscloser's\nConfidential\nInformation\nor\nany\ninformation\nderived\ntherefrom\n(including\nresults\nof\ntests\non\nmateria\nsamples)\nto\nany\nother\nperson\nor\nentity (except as set forth in Section 2(b) below), (iii) not use the Discloser's Confidential Information for any purpose whatsoever other than\nas\nmay be directly in furtherance of the purposes of one or more of the Revised Transaction Documents, (iv) not export the Discloser's\nConfidential Information in violation of the United States Export Administration Act and regulations thereunder, or any other applicable export\ncontrol laws or regulations, (v) notify the Discloser in writing immediately upon discovery by the Recipient or its Representatives of any\nunauthorized use or disclosure of the Discloser's Confidential Information, and (vi) upon termination or expiration of the applicable Revised\nTransaction Document, return to the Discloser or destroy (at the option of the Recipient) all such Confidential Information disclosed thereunder,\nincluding all originals, copies and extracts, provided that the Recipient may retain any information to which it has a continuing license for use,\nand provided further that Recipient's legal counsel may retain one copy of the returned or destroyed items (excluding material samples provided\nby\nLiquidmetal)\nfor\narchival\npurposes.\nExcept\nas\nexpressly\npermitted\nby\nthe\nRevised\nTransaction\nDocuments,\nRecipient\nwill\nnot\nfile\nany\ncopyright registrations, patent applications, or similar registrations of ownership on Discloser's Confidential Information or on any invention,\ntechnology, development, or information that utilizes or incorporates Discloser's Confidential Information, and in the event that Recipient does\nso in violation of this Agreement, Recipient will assign to Discloser such registrations or applications.\n(b)\nDisclosure to Representatives. The Recipient may only disseminate the Discloser's Confidential Information to its\nRepresentatives who have been informed of the Recipient's obligations under this Agreement and are bound by an obligation of confidentiality\nand non-use with respect to the Discloser's Confidential Information. The Recipient agrees to reasonably restrict disclosure of the Discloser's\nConfidential Information to the smallest number of the Recipient's Representatives which have a need to know the Confidential Information.\nThe Recipient shall be responsible for enforcing this Agreement as to the Recipient's Representatives and shall take such action (legal\nor\notherwise) to the extent necessary to cause them to comply with this Agreement.\n(c)\nGeneral Exceptions. The restrictions on the Recipient's disclosure and use of the Discloser's Confidential Information under\nthis Section 2 will not apply to the extent of any Confidential Information:\n(i)\nthat was already rightfully known by the Recipient prior to the disclosure as evidenced by the Recipient's written\ndocumentation;\n(ii)\nthat becomes publicly known without breach of the Recipient's obligations under this Agreement;\n(iii)\nthat is rightfully acquired by the Recipient from a third party which is not subject to any restriction or obligation (whether\ncontractual, fiduciary, or otherwise) on disclosure or use of such Confidential Information;\n(iv)\nthat is independently developed by the Recipient or its Representatives without knowledge or reference to such information, as\nevidenced by written documentation or other tangible evidence;\n(v)\nother than as set forth in Section 2(d) below, that is required to be disclosed by law or by court order or government order,\nprovided that the Recipient (a) promptly notifies the Discloser of any such disclosure requirement so that the Discloser may\nseek an appropriate protective order (or other appropriate protections), and (b) provides reasonable assistance (at no cost to the\nRecipient) in obtaining such protective order or other form of protection; or\n(vi)\nas to which and to the extent to which (A) the Recipient has been authorized to disclose or use pursuant to one of the Revised\nTransaction Documents; or (B) the Recipient has otherwise received prior express written consent from an authorized officer\nof the Discloser to disclose or use.\n(d)\nTo the extent that a Party is a publicly-traded company, and subject to laws and regulations requiring disclosure of the\nRevised Transaction Documents to the U.S. Securities and Exchange Commission (the "SEC"), such Party shall (i) seek confidential treatment\nfor any Revised Transaction Document disclosed to or filed with the SEC, or (ii) redact the financial terms from any Revised Transaction\nDocument disclosed to or filed with the SEC. A specific item of Confidential Information shall not be deemed to fall within the foregoing\nexceptions in Section 2(c) merely because such specific item is embraced or implied by more general information that falls within the foregoing\nexceptions.\n2\n3.\nTERM AND TERMINATION\nThe obligations of the Parties under this Agreement shall survive for a period of three (3) years from the termination or expiration of\nthe last of the Revised Transaction Documents to terminate or expire; provided that this Agreement shall continue in full force and effect with\nrespect to any Confidential Information that constitutes a trade secret under applicable law for such additional period as such Confidential\nInformation remains a trade secret under such applicable law. All rights and actions of a Disclosing Party accrued prior to the applicable date of\nany\ntermination\nor\nexpiration\nunder\nthis\nSection\n3\nshall\nsurvive\nsuch\ntermination\nor\nexpiration\nfor\nthe\nduration\nof\nany\napplicable\nstatute\nof\nlimitations. For clarity, this Agreement shall apply as well with respect to Confidential Information disclosed pursuant to or otherwise covered\nby the Original Agreement.\n4.\nADDITIONAL COVENANTS AND AGREEMENTS.\n(a) No Obligation to Disclose; No Warranty. No provision of this Agreement shall be construed as an obligation by either Party to\ndisclose any Confidential Information to the other Party. Except as expressly set forth in the Revised Transaction Documents, all Confidential\nInformation, including material samples, are provided "AS IS", without warranty or guarantee of any kind as to its accuracy, completeness,\noperability,\nfitness\nfor\na\nparticular\npurpose,\nor\nany\nother\nwarranty,\nexpress\nor\nimplied.\nExcept\nas\nexpressly\nset\nforth\nin\nthe\nRevised\nTransaction\nDocuments, or with respect to a breach of a Revised Transaction Document, neither Party shall be liable to the other for any damages, loss,\nexpense, or claim of loss arising from use or reliance on the Confidential Information of the other Party.\n(b) No License Implied. Each Party acknowledges and agrees that except as otherwise expressly set forth in the Revised Transaction\nDocuments, all Confidential Information (and any proprietary and novel features contained in the Confidential Information) shall remain the\nproperty of the Discloser and, except as otherwise expressly set forth in the Revised Transaction Documents, no license or right with respect\nthereto is granted to the Recipient, whether by implication or otherwise. Except as otherwise expressly set forth in the Revised Transaction\nDocuments, the Recipient shall have no rights whatsoever under any patent, trademark, copyright, or application therefor, or any other\nproprietary right of the Discloser, and the Recipient agrees that the Discloser shall remain free to grant such rights to others and to disclose the\nConfidential Information to anyone the Discloser chooses.\n(c) Third-Party Information. The Parties hereby state that they do not desire to acquire from each other, and they hereby agree not to\nfurnish to one another, any trade secret, proprietary know-how, or confidential information acquired from third parties (unless the third party\nprovides prior written consent to such disclosure). Further, each Party represents and warrants to the other that it is free to divulge, without any\nobligation to or violation of the rights of any third party, any and all information which it will demonstrate, divulge, or in any other manner\nmake known to the other in connection with this Agreement.\n(d)\nEnforcement. Each Party acknowledges and agrees that that any breach of this Agreement by it may cause irreparable harm to\nthe other Party and that the remedies for breach may include injunctive relief against such breach, in addition to damages and other available\nremedies. Except for an action for injunctive relief, disputes arising under this Agreement shall be resolved pursuant to Section 15 of the\nSettlement Agreement and Mutual General Release executed by and between the Parties on or about the Revised Effective Date. The prevailing\nParty shall be entitled to the award of its reasonable attorneys' fees in any action to enforce this Agreement, to the extent such fees were\nincurred to enforce such Party's rights under this Agreement.\n(e) Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, other\nthan such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of New York.\n(f)\nNotices. All notices from one Party to the other required or permitted under this Agreement shall be in writing, shall refer\nspecifically\nto\nthis\nAgreement,\nand\nshall\nbe\ndelivered\nin\nperson,\nor\nsent\nby\nelectronic\nor\nfacsimile\ntransmission\nfor\nwhich\na\nconfirmation\nof\ndelivery is obtained, or sent by registered mail or express courier services providing evidence of delivery, in each case to the recipient Party's\nrespective address set forth on the signature page hereof (or to such updated address as may be specified in writing to the other Party from time\nto time). Such notices will be deemed effective as of the date so delivered or on the third business day following mailing if sent by registered\nmail.\n(g) No Assignment. Neither Party shall assign, transfer, subcontract or otherwise delegate any of its obligations under this\nAgreement without the other Party's prior written consent in each instance other than as a part of any merger, consolidation, or other statutory\nbusiness combination or as a part of the sale of all or substantially all of their assets. Any attempted assignment, transfer, subcontracting or other\ndelegation without such consent shall be void and shall constitute a breach of this Agreement. Subject to the foregoing, this Agreement shall\ninure to the benefit of the Parties' successors and assigns.\n3\n(h)\nSeverability. If a specific provision of this Agreement is determined to be invalid or unenforceable for any reason, the specific\nprovision shall be interpreted to call for the protection of the Discloser's rights to the greatest extent which is valid and enforceable. In the event\nthat a specific provision of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction and the provision\ncannot be, or the court otherwise declines to permit the provision to be interpreted to call for protection of the Discloser's rights to an extent\nwhich is valid and enforceable, the remainder of this Agreement and application of such provision to other persons or circumstances shall be\ninterpreted so as best to reasonably effect the intent of the Parties hereto. The Parties further agree to replace such void or unenforceable\nprovision with a provision which will achieve, to the extent possible, the economic, business and other purposes of the void or unenforceable\nprovision.\n(i) Relationship of Parties. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or\npartnership between the Parties. No Party shall have the power to control the activities and operations of another, and their status is, and at all\ntimes will continue to be, that of independent contractors with respect to each other. No Party shall hold itself out as having any authority or\nrelationship in contravention of this Section, and except as specifically called for or permitted herein, no Party shall act on behalf of another\nParty or enter into any contracts, warranty, or representation as to any other matter on the behalf of another Party.\n(j)\nEntire Agreement; Amendment; Waiver. This Agreement, together with the Revised Transaction Documents, constitutes the\nentire agreement between the Parties relating to the subject matter hereof and supersedes and cancels all other prior agreements and\nunderstandings of the Parties in connection with such subject matter. The headings or titles in this Agreement are for purposes of reference only\nand shall not in any way affect the interpretation or construction of this Agreement. No waiver of any of the provisions of this Agreement shall\nbe valid unless in a written document, signed by the Party against whom such a waiver is sought to be enforced, nor shall failure to enforce any\nright hereunder constitute a continuing waiver of the same or a waiver of any other right hereunder. All amendments of this Agreement shall be\nmade in writing and signed by the Parties, and no oral amendments shall be binding on the Parties.\n(k) Execution; Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of\nwhich together will constitute the same agreement. The Parties agree that this Agreement may be executed by each Party signing one original\nand providing a facsimile (fax) copy, or scanned copy by .pdf, of the signature page to the other Party, provided that each Party agrees to make\nits document with the original signature available to the other Party upon request, and further provided that the Parties agree that the fax or\nscanned signature shall be treated as if it were an original signature, and neither Party shall contest the validity of this Agreement based on the\nuse of fax or scanned signatures.\n(1) Interpretation. The Parties have each been represented by counsel in the negotiation of this Agreement and have jointly prepared\nthis Agreement with counsels' assistance. In the event of an ambiguity or a question of contract interpretation arises, no provision of this\nAgreement shall be construed based on any particular Party having drafted the Agreement or such provision. Further, neither the history of\nnegotiations between the parties, nor the fact that provisions of this Agreement (or portions thereof) have been inserted, deleted or modified in\nthe course of preparing Agreement drafts, shall be used to construe the meaning of any provision.\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed effective as of the Revised Effective Date, by their\nofficers, duly authorized.\nLiquidmetal Technology, Inc.\nVisser Precision Cast, LLC\n/s/ Tom Steipp\n/s/ Gregory A. Ruegsegger\nTom Steipp\nBy: Gregory A. Ruegsegger\nTitle: President/CEO\nTitle: Vice President\nDate: May 20, 2014\nDate: May 20, 2014\nAddress:\nAddress:\n30452 Esperanza\n6275 E. 39th Street\nRancho Santa Margarita, CA 92688\nDenver, CO 80207\n4 EX-10 5 ex10-4 .htm EXHIBIT 10.4\nExhibit 10.4\nAMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nTHIS AMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made and entered into\nas effective of May 20, 2014 (the “Revised Effective Date”), by and between LIQUIDMETAL TECHNOLOGIES, INC., a Delaware\ncorporation having its principal place of business at 30452 Esperanza, Rancho Santa Margarita, CA 92688, on behalf of itself and its affiliates or\nsubsidiaries other than Crucible Intellectual Property, LLC (collectively “Liquidmetal”), and VISSER PRECISION CAST, LLC, a Colorado\nlimited liability company having its principal place of business at 6275 E 39 Street, Denver, CO 80207 (“VPC”). Liquidmetal and VPC are\nparties to that certain Settlement Agreement and Mutual General Release (“Settlement Agreement”), Amended and Restated VPC Sublicense\nAgreement (“Sublicense”), Amended and Restated Common Stock Purchase Warrant (“Warrant”), and Amended and Restated Registration\nRights Agreement (“Rights Agreement”), each dated as of May 20, 2014. Liquidmetal and VPC are hereinafter referred to individually as a\n“Party” and together as the “Parties.”\nWHEREAS, Liquidmetal and VPC are parties to that certain Mutual Non-Disclosure Agreement (the “Original Agreement”) dated\nJune 1, 2012 (the “Original Effective Date”); and\nWHEREAS, the Parties have entered into the Settlement Agreement, the Sublicense, the Warrant and the Rights Agreement (such\nAgreements, together with this Agreement, collectively the “Revised Transaction Documents”); and\nWHEREAS, during the course of their business relationship, both prior to the Original Effective Date and thereafter, each Party has\nhad and may in the future have access to Confidential Information (as defined below) of the other Party,\nNOW, THEREFORE, in consideration of the foregoing recital and the covenants, terms, and conditions set forth below, the Parties\nhereby agree as follows:\n1.\nCERTAIN DEFINITIONS.\n“Affiliate” shall mean, with respect to a Party, any other entity that controls, is controlled by, or is under common control with such Party. The\nterm “Affiliate” includes, without limitation, all subsidiaries, parent companies, partnerships, and joint ventures of the specified Party.\n“Confidential Information” shall mean any and all nonpublic information concerning or arising from Discloser’s or its Affiliates’ business,\nwhether disclosed prior to or after the Original Effective Date or the Revised Effective Date, and including particularly, but not by way of\nlimitation, trade secrets used, developed or acquired by Discloser in connection with its business; information concerning the manner and details\nof Discloser’s operation, organization and management; financial information and/or documents and nonpublic policies, procedures and other\nprinted or written material generated or used in connection with Discloser ’s business; Discloser ’s business plans and strategies; the identities of\ndistributors, contractors and vendors utilized in Discloser’s business; the details of Discloser ’s relationship with such distributors, contractors\nand vendors; nonpublic forms, contracts and other documents used in Discloser’s business; the nature and content of computer software or\ntechnologies used in Discloser’s business, whether proprietary to Discloser or used by Discloser under license from a third party; Discloser’s\ninventions, trade secrets, know-how, products or processes in development, engineering, methodologies, concepts, techniques, discoveries,\nprocesses, drawings, designs, research, and plans or specifications relating thereto; and all other information concerning Discloser’s concepts,\nprospects, customers, employees, contractors, earnings, products, services, equipment, systems, and/or prospective and executed contracts and\nother business arrangements. “Confidential Information” also includes (i) any information described above which the Discloser obtains from a\nthird party and which the Discloser treats as proprietary or designates as confidential, whether or not owned or developed by the Discloser, and\n(ii) any reports, analysis, compilations, or other documents prepared by Recipient in which any of Discloser’s Confidential Information is\ndescribed or discussed.\n“Discloser” shall mean the Party that is disclosing Confidential Information under this Agreement, regardless of whether such Confidential\nInformation is being provided directly by such Party, by a Representative of the Party, or by any other person or entity that has an obligation of\nconfidentiality with respect to the Confidential Information being disclosed.\n“Recipient” shall mean the Party receiving Confidential Information that is protected under this Agreement.\n“Representatives” shall consist of the directors, officers, employees, financial advisors, accountants, attorneys, consultants, insurers and\nAffiliates of the applicable Party.\n1\nth\n2.\nRESTRICTIONS ON DISCLOSURE AND USE.\n(a)\nRestrictions and Covenants. Each Party agrees that, in its capacity as a Recipient of the other Party’s Confidential\nInformation, it will (i) hold the Discloser’s Confidential Information in strict confidence, use a high degree of care in safeguarding the\nDiscloser ’s Confidential Information, and will take reasonable precautions to protect the Discloser ’s Confidential Information including, at a\nminimum, all precautions the Recipient normally employs with respect to its own confidential information, (ii) not divulge any of the\nDiscloser ’s Confidential Information or any information derived therefrom (including results of tests on material samples) to any other person or\nentity (except as set forth in Section 2(b) below), (iii) not use the Discloser’s Confidential Information for any purpose whatsoever other than as\nmay be directly in furtherance of the purposes of one or more of the Revised Transaction Documents, (iv) not export the Discloser ’s\nConfidential Information in violation of the United States Export Administration Act and regulations thereunder, or any other applicable export\ncontrol laws or regulations, (v) notify the Discloser in writing immediately upon discovery by the Recipient or its Representatives of any\nunauthorized use or disclosure of the Discloser’s Confidential Information, and (vi) upon termination or expiration of the applicable Revised\nTransaction Document, return to the Discloser or destroy (at the option of the Recipient) all such Confidential Information disclosed thereunder,\nincluding all originals, copies and extracts, provided that the Recipient may retain any information to which it has a continuing license for use,\nand provided further that Recipient’s legal counsel may retain one copy of the returned or destroyed items (excluding material samples provided\nby Liquidmetal) for archival purposes. Except as expressly permitted by the Revised Transaction Documents, Recipient will not file any\ncopyright registrations, patent applications, or similar registrations of ownership on Discloser’s Confidential Information or on any invention,\ntechnology, development, or information that utilizes or incorporates Discloser ’s Confidential Information, and in the event that Recipient does\nso in violation of this Agreement, Recipient will assign to Discloser such registrations or applications.\n(b)\nDisclosure to Representatives. The Recipient may only disseminate the Discloser ’s Confidential Information to its\nRepresentatives who have been informed of the Recipient’s obligations under this Agreement and are bound by an obligation of confidentiality\nand non-use with respect to the Discloser’s Confidential Information. The Recipient agrees to reasonably restrict disclosure of the Discloser’s\nConfidential Information to the smallest number of the Recipient’s Representatives which have a need to know the Confidential Information.\nThe Recipient shall be responsible for enforcing this Agreement as to the Recipient’s Representatives and shall take such action (legal or\notherwise) to the extent necessary to cause them to comply with this Agreement.\n(c)\nGeneral Exceptions. The restrictions on the Recipient's disclosure and use of the Discloser’s Confidential Information under\nthis Section 2 will not apply to the extent of any Confidential Information:\n(i)\nthat was already rightfully known by the Recipient prior to the disclosure as evidenced by the Recipient’s written\ndocumentation;\n(ii)\nthat becomes publicly known without breach of the Recipient's obligations under this Agreement;\n(iii)\nthat is rightfully acquired by the Recipient from a third party which is not subject to any restriction or obligation (whether\ncontractual, fiduciary, or otherwise) on disclosure or use of such Confidential Information;\n(iv)\nthat is independently developed by the Recipient or its Representatives without knowledge or reference to such information, as\nevidenced by written documentation or other tangible evidence;\n(v)\nother than as set forth in Section 2(d) below, that is required to be disclosed by law or by court order or government order,\nprovided that the Recipient (a) promptly notifies the Discloser of any such disclosure requirement so that the Discloser may\nseek an appropriate protective order (or other appropriate protections), and (b) provides reasonable assistance (at no cost to the\nRecipient) in obtaining such protective order or other form of protection; or\n(vi)\nas to which and to the extent to which (A) the Recipient has been authorized to disclose or use pursuant to one of the Revised\nTransaction Documents; or (B) the Recipient has otherwise received prior express written consent from an authorized officer\nof the Discloser to disclose or use.\n(d)\nTo the extent that a Party is a publicly-traded company, and subject to laws and regulations requiring disclosure of the\nRevised Transaction Documents to the U.S. Securities and Exchange Commission (the “SEC”), such Party shall (i) seek confidential treatment\nfor any Revised Transaction Document disclosed to or filed with the SEC, or (ii) redact the financial terms from any Revised Transaction\nDocument disclosed to or filed with the SEC. A specific item of Confidential Information shall not be deemed to fall within the foregoing\nexceptions in Section 2(c) merely because such specific item is embraced or implied by more general information that falls within the foregoing\nexceptions.\n2\n3.\nTERM AND TERMINATION\nThe obligations of the Parties under this Agreement shall survive for a period of three (3) years from the termination or expiration of\nthe last of the Revised Transaction Documents to terminate or expire; provided that this Agreement shall continue in full force and effect with\nrespect to any Confidential Information that constitutes a trade secret under applicable law for such additional period as such Confidential\nInformation remains a trade secret under such applicable law. All rights and actions of a Disclosing Party accrued prior to the applicable date of\nany termination or expiration under this Section 3 shall survive such termination or expiration for the duration of any applicable statute of\nlimitations. For clarity, this Agreement shall apply as well with respect to Confidential Information disclosed pursuant to or otherwise covered\nby the Original Agreement.\n4.\nADDITIONAL COVENANTS AND AGREEMENTS.\n(a) No Obligation to Disclose; No Warranty. No provision of this Agreement shall be construed as an obligation by either Party to\ndisclose any Confidential Information to the other Party. Except as expressly set forth in the Revised Transaction Documents, all Confidential\nInformation, including material samples, are provided “AS IS”, without warranty or guarantee of any kind as to its accuracy, completeness,\noperability, fitness for a particular purpose, or any other warranty, express or implied. Except as expressly set forth in the Revised Transaction\nDocuments, or with respect to a breach of a Revised Transaction Document, neither Party shall be liable to the other for any damages, loss,\nexpense, or claim of loss arising from use or reliance on the Confidential Information of the other Party.\n(b) No License Implied. Each Party acknowledges and agrees that except as otherwise expressly set forth in the Revised Transaction\nDocuments, all Confidential Information (and any proprietary and novel features contained in the Confidential Information) shall remain the\nproperty of the Discloser and, except as otherwise expressly set forth in the Revised Transaction Documents, no license or right with respect\nthereto is granted to the Recipient, whether by implication or otherwise. Except as otherwise expressly set forth in the Revised Transaction\nDocuments, the Recipient shall have no rights whatsoever under any patent, trademark, copyright, or application therefor, or any other\nproprietary right of the Discloser, and the Recipient agrees that the Discloser shall remain free to grant such rights to others and to disclose the\nConfidential Information to anyone the Discloser chooses.\n(c) Third-Party Information. The Parties hereby state that they do not desire to acquire from each other, and they hereby agree not to\nfurnish to one another, any trade secret, proprietary know-how, or confidential information acquired from third parties (unless the third party\nprovides prior written consent to such disclosure). Further, each Party represents and warrants to the other that it is free to divulge, without any\nobligation to or violation of the rights of any third party, any and all information which it will demonstrate, divulge, or in any other manner\nmake known to the other in connection with this Agreement.\n(d) Enforcement. Each Party acknowledges and agrees that that any breach of this Agreement by it may cause irreparable harm to\nthe other Party and that the remedies for breach may include injunctive relief against such breach, in addition to damages and other available\nremedies. Except for an action for injunctive relief, disputes arising under this Agreement shall be resolved pursuant to Section 15 of the\nSettlement Agreement and Mutual General Release executed by and between the Parties on or about the Revised Effective Date. The prevailing\nParty shall be entitled to the award of its reasonable attorneys’ fees in any action to enforce this Agreement, to the extent such fees were\nincurred to enforce such Party’s rights under this Agreement.\n(e) Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, other\nthan such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of New York.\n(f) Notices. All notices from one Party to the other required or permitted under this Agreement shall be in writing, shall refer\nspecifically to this Agreement, and shall be delivered in person, or sent by electronic or facsimile transmission for which a confirmation of\ndelivery is obtained, or sent by registered mail or express courier services providing evidence of delivery, in each case to the recipient Party’s\nrespective address set forth on the signature page hereof (or to such updated address as may be specified in writing to the other Party from time\nto time). Such notices will be deemed effective as of the date so delivered or on the third business day following mailing if sent by registered\nmail.\n(g)\nNo Assignment. Neither Party shall assign, transfer, subcontract or otherwise delegate any of its obligations under this\nAgreement without the other Party’s prior written consent in each instance other than as a part of any merger, consolidation, or other statutory\nbusiness combination or as a part of the sale of all or substantially all of their assets. Any attempted assignment, transfer, subcontracting or other\ndelegation without such consent shall be void and shall constitute a breach of this Agreement. Subject to the foregoing, this Agreement shall\ninure to the benefit of the Parties’ successors and assigns.\n3\n(h) Severability. If a specific provision of this Agreement is determined to be invalid or unenforceable for any reason, the specific\nprovision shall be interpreted to call for the protection of the Discloser’s rights to the greatest extent which is valid and enforceable. In the event\nthat a specific provision of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction and the provision\ncannot be, or the court otherwise declines to permit the provision to be interpreted to call for protection of the Discloser ’s rights to an extent\nwhich is valid and enforceable, the remainder of this Agreement and application of such provision to other persons or circumstances shall be\ninterpreted so as best to reasonably effect the intent of the Parties hereto. The Parties further agree to replace such void or unenforceable\nprovision with a provision which will achieve, to the extent possible, the economic, business and other purposes of the void or unenforceable\nprovision.\n(i) Relationship of Parties. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or\npartnership between the Parties. No Party shall have the power to control the activities and operations of another, and their status is, and at all\ntimes will continue to be, that of independent contractors with respect to each other. No Party shall hold itself out as having any authority or\nrelationship in contravention of this Section, and except as specifically called for or permitted herein, no Party shall act on behalf of another\nParty or enter into any contracts, warranty, or representation as to any other matter on the behalf of another Party.\n(j) Entire Agreement; Amendment; Waiver. This Agreement, together with the Revised Transaction Documents, constitutes the\nentire agreement between the Parties relating to the subject matter hereof and supersedes and cancels all other prior agreements and\nunderstandings of the Parties in connection with such subject matter. The headings or titles in this Agreement are for purposes of reference only\nand shall not in any way affect the interpretation or construction of this Agreement. No waiver of any of the provisions of this Agreement shall\nbe valid unless in a written document, signed by the Party against whom such a waiver is sought to be enforced, nor shall failure to enforce any\nright hereunder constitute a continuing waiver of the same or a waiver of any other right hereunder. All amendments of this Agreement shall be\nmade in writing and signed by the Parties, and no oral amendments shall be binding on the Parties.\n(k) Execution; Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of\nwhich together will constitute the same agreement. The Parties agree that this Agreement may be executed by each Party signing one original\nand providing a facsimile (fax) copy, or scanned copy by .pdf, of the signature page to the other Party, provided that each Party agrees to make\nits document with the original signature available to the other Party upon request, and further provided that the Parties agree that the fax or\nscanned signature shall be treated as if it were an original signature, and neither Party shall contest the validity of this Agreement based on the\nuse of fax or scanned signatures.\n(l) Interpretation. The Parties have each been represented by counsel in the negotiation of this Agreement and have jointly prepared\nthis Agreement with counsels’ assistance. In the event of an ambiguity or a question of contract interpretation arises, no provision of this\nAgreement shall be construed based on any particular Party having drafted the Agreement or such provision. Further, neither the history of\nnegotiations between the parties, nor the fact that provisions of this Agreement (or portions thereof) have been inserted, deleted or modified in\nthe course of preparing Agreement drafts, shall be used to construe the meaning of any provision.\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed effective as of the Revised Effective Date, by their\nofficers, duly authorized.\nLiquidmetal Technology, Inc.\nVisser Precision Cast, LLC\n/s/ Tom Steipp\n/s/ Gregory A. Ruegsegger\nTom Steipp\nBy: Gregory A. Ruegsegger\nTitle: President/CEO\nTitle: Vice President\nDate: May 20, 2014\nDate: May 20, 2014\nAddress:\nAddress:\n30452 Esperanza\n6275 E. 39th Street\nRancho Santa Margarita, CA 92688\nDenver, CO 80207\n4 0d3f3a02773949e285cfc3ad2fe4dbf5.pdf effective_date jurisdiction party term Exhibit L-2\nto Amended and Restated Loan Guarantee Agreement\nFORM OF NONDISCLOSURE AGREEMENT FOR LENDER’S ENGINEER\n[FORM OF] NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this “Agreement”) is dated [\n] and is between [\n,a\ncorporation] [[\n], an employee\nof\n](26) (“Recipient”) and Oglethorpe Power Corporation (An Electric Membership Corporation), an electric membership corporation\norganized and existing under the laws of Georgia (“OPC”). Capitalized terms used but not otherwise defined in this Agreement have the\nmeanings provided in the EPC Agreement, as defined in Article 2(b)(i) below.\n1.\nRecipient is participating in providing technical advisory and support services to the Department of Energy, Loan Programs\nOffice (“DOE”), under Contract No. DE-DT002463 (the “Contract”), in connection with (a) DOE’s negotiation of certain loan guarantee\nagreements and related financing documents between DOE and each of Georgia Power Company (“GPC”), OPC and/or the Municipal Electric\nAuthority of Georgia or any of its wholly owned subsidiaries (each, a “DOE Borrower”) pursuant to which DOE would guarantee the repayment\nof a loan to such DOE Borrower for the construction, operation and ownership of Vogtle Units 3 and 4 (the “Project”) and (b) the related due\ndiligence (each such guarantee, a “DOE Loan Guarantee”; such loan guarantee agreements collectively, the “DOE Loan Guarantee\nAgreements”).\n2.\n(a)\nIn order to permit Recipient to review Confidential Information (as hereinafter defined) of OPC and/or its Contractor,\na consortium composed of Westinghouse Electric Company, LLC (“Westinghouse”) and Stone & Webster, Inc. (“Stone & Webster”), that may be\ncontained in the materials described in Article 2(b) hereof (the “Documents”), OPC and Recipient desire to enter into this Agreement which shall\napply to any review of Confidential Information contained in the Documents after the date hereof by Recipient. For the purposes of this\nAgreement, “Confidential Information” means the entirety of Documents identified in Section 2(b) below, but excludes any Publicly Disclosed\nInformation (as defined herein) or which Recipient has been authorized in writing by OPC to publicly disclose (excluding the disclosures\npermitted to be made by Recipient pursuant to Article 3.C below). For purposes of this Agreement, “Publicly Disclosed Information” means\nterms, conditions or other information that has become generally available to the public other than: (i) as a result of disclosure by Recipient, or\n(ii) any Confidential Information that Recipient knows has been disclosed by a third party (x) approved to receive such Confidential Information\nhereunder in violation of the terms of this Agreement or (y) in violation of any obligation of confidentiality of such third party similar to the\nterms of this Agreement.\n(b)\nThe Documents to which this Agreement shall apply are:\ni. the Engineering, Procurement and Construction Agreement between GPC, acting for itself and as agent for the other Owners\n(as such term is defined therein, the “Owners”), and a consortium consisting of Westinghouse and Stone & Webster\n(26) For Lender ’s Engineer ’s NDA, use first bracketed option; for each individual Lender’s Engineer employee’s NDA, use\nsecond bracketed\noption.\nExhibit L-2\n- Page1\n(collectively, the “Contractor”), dated as of April 8, 2008, as it may be amended from time to time, for the Project (the “EPC\nAgreement”);\nii. an executed copy of the Toshiba Guarantee, as it may be amended from time to time in the form attached as Exhibit V-1 to the\nEPC Agreement;\niii. an executed copy of the Shaw Guarantee, as it may be amended from time to time in the form attached as Exhibit V-2 to the\nEPC Agreement;\niv. an executed copy of the Software License (as it may be amended from time to time, the “Software License”) attached as\nExhibit M to the EPC Agreement;\nv. the Contract for AP1000 Fuel Fabrication, Design and Related Services, dated as of April 3, 2009, between Southern Nuclear\nOperating Company, Inc. (the “Operator”), acting as the agent of Georgia Power Company, collectively as owner, and\nWestinghouse, as amended by Amendment No. 1 dated as of June 21, 2012, (as it may be further amended from time to time, the\n“Fuel Fabrication Agreement”); any other contract entered into after the date hereof by GPC or the Operator for the supply of fuel\nassemblies and/or related required software for the Project, as it may be amended from time to time (each, a “Fuel Supply\nAgreement”); the Amended and Restated License Agreement dated February 9, 2012, between the Operator, for itself and as agent\nfor Alabama Power Company and Georgia Power Company, collectively, as licensee, and Westinghouse (as it may be amended\nfrom time to time, the “License Agreement”); the agreement (if any), to be entered into after the date of this Agreement by\nWestinghouse and the Owners or GPC (acting for itself and as agent for the other Owners) if the AP1000-compatible version of\nBest Estimate Analysis for Core Operation Nuclear - Direct Margin Monitor System and its related deliverables to be used in the\noperation of the Project (the “BEACON-DMM Software”) is not otherwise provided for the Project, pursuant to which the\nOwners will acquire the BEACON-DMM Software including a license for the use thereof (as such agreement may be amended\nfrom time to time, the “BEACON Software Agreement”);\nvi. each Monthly Status Report provided by Contractor to GPC pursuant to the EPC Agreement ;\nvii. each monthly construction status report filed by GPC with the Georgia Public Service Commission (“Georgia PSC”);\nExhibit L-2\n- Page2\nTM\nTM\nTM\nviii.\neach monthly project report delivered by the Operator to the co-owners of Vogtle Units 3 & 4;\nix. the level two schedule of significant development, construction and completion milestones for the completion of each Unit, in\neach case prepared by GPC, as updated from time to time;\nx. a copy of the written materials delivered by GPC, as agent for the co-owners of Vogtle Units 3 & 4, to the co-owners in\nconnection with any monthly project management board meeting;\nxi. invoices submitted by Contractor to Owners pursuant to the EPC Agreement;\nxii. any semi-annual construction monitoring reports filed with the Georgia PSC by GPC pursuant to the final amended\ncertification order and all orders on remand entered by the Georgia PSC in Docket No. 27800-U that contains any Confidential and\nProprietary Information;\nxiii.\nany notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments\nwith respect to the foregoing, with respect to GPC, OPC or the Municipal Electric Authority of Georgia or any of its wholly owned\nsubsidiaries (each, a “DOE Borrower”) or the Operator or their participation in the Project, in each case that has, or could\nreasonably be expected to have, a Material Adverse Effect (as such term is defined in the DOE Loan Guarantee Agreements) or a\nmaterial adverse effect on the ability of the Project to be completed or operated, only to the extent such items contain Confidential\nand Proprietary Information;\nxiv. any notice and a copy of any of the following communications received by a DOE Borrower or the Operator from the NRC:\n(1) notice of a potential violation of severity level III or higher (or its equivalent in subsequent versions of the NRC Enforcement\nPolicy); (2) Red, Yellow or White NRC Inspection Finding (or its equivalent in subsequent versions of the Reactor Oversight\nPolicy); (3) notice to stop work or shut down or show cause; (4) Demand for Information under 10 CFR § 50.54(f) or 10 CFR §\n2.204; or (5) any other immediately effective, unilateral, docket-specific, non-routine communication requiring action by any\nlicensee with respect to the Project, only to the extent such items contain Confidential and Proprietary Information;\nExhibit L-2\n- Page3\nxv. any notice of any complaint, order, directive, claim, citation, designation or notice by any Governmental Authority (as such\nterm is defined in the DOE Loan Guarantee Agreements) with respect to the Project received by a DOE Borrower or the Operator\nrelating to any actual or potential material non-compliance with its then-existing obligations under Environmental Laws (as such\nterm is defined in the DOE Loan Guarantee Agreements) and any written description of any steps that DOE Borrower or the\nOperator is taking and proposes to take with respect to the matters described in such notice, only to the extent such items contain\nConfidential and Proprietary Information;\nxvi. notice and a copy of any stop work order issued by a DOE Borrower or the Operator with respect to any work on the Project,\nonly to the extent such items contain Confidential and Proprietary Information;\nxvii.\nany notice of any termination, amendment or material waiver or breach of, or material notices and material\ncorrespondence with respect to, the EPC Agreement, the Toshiba Guarantee, the Shaw Guarantee, the Software License, the Fuel\nFabrication Agreement, any other Fuel Supply Agreement, the BEACON Software Agreement (if any) or the License Agreement\nand any copy of any of the foregoing or any agreement, instrument or other document giving effect to any of the foregoing, only to\nthe extent such items contain Confidential and Proprietary Information;\nxviii.\nany notice of any event that constitutes an Event of Default, Potential Default, Mandatory Prepayment Event or Potential\nMandatory Prepayment Event (as such terms are defined in the DOE Loan Guarantee Agreements) and any written description of\nany steps any DOE Borrower has taken or proposes to take to remedy matters described in any such notice, only to the extent such\nitems contain Confidential and Proprietary Information;\nxix. any notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments with\nrespect to the foregoing, with respect to any DOE Borrower or the Operator or their participation in the Project, in each case that\nhas resulted in, or any DOE Borrower believes will result in, Public Inquiries (as such term is defined in the DOE Loan Guarantee\nAgreements), only to the extent such items contain Confidential and Proprietary Information; and\nxx. any lien waivers and releases, with respect to all work reflected in any invoice of the Contractor and, in the case of the invoice\nfor the final payment from the DOE Borrowers under the EPC Agreement, the Contractor’s affidavit, only to the extent such items\ncontain Confidential and Proprietary Information.\nExhibit L-2\n- Page4\n(c)\nNotwithstanding the foregoing, Confidential Information made available to Recipient pursuant to this Agreement shall\nnot include any such Confidential Information consisting of AP1000 engineering or design or related information of Contractor, or\nWestinghouse, or Stone & Webster individually, not included in the public version of the AP1000 Design Control Document, including as a\nrepresentative list of such information: calculations for safety-related systems and components; the Plant Design Model; instrumentation and\ncontrol functional, system, software and interface requirements and functional logic diagrams; designs, design specifications and qualification\nreports for safety-related and non-safety related equipment; systems design and design specification documents for safety-related and non-safety\nrelated systems; design change packages, including E&DCRs; instrumentation and control architecture diagrams, software verification and\nvalidation documentation, testing procedures and test results; component data packages; fabrication and construction drawings; and final plant\nas-built drawings.\n(d)\nTo the extent, as a result of any request from Recipient (or a request from DOE on behalf of Recipient) to be allowed\nto see any Confidential Information that has been redacted under Section 2(c), OPC obtains from Contractor, or Westinghouse or Stone &\nWebster individually, permission to disclose such redacted Confidential Information, such Confidential Information will be disclosed by OPC to\nRecipient in the same manner and under the same conditions as such redacted Confidential Information has been made available by Contractor,\nor Westinghouse or Stone & Webster individually, to OPC.\n3.\nIn connection with Recipient’s participation in providing the technical advisory and support services to the DOE under the Contract in\nconnection with the Project (the “Purpose”):\nA.\nRecipient acknowledges OPC may not disclose Confidential Information included in the Documents until and unless the\npersons to whom such Confidential Information is disclosed agree to keep such information, terms and conditions confidential as\nprovided herein and only to use such Confidential Information for the Purpose. Recipient by this Agreement agrees to keep the\nConfidential Information contained therein confidential, subject to the terms of this Agreement.\nB.\nRecipient hereby acknowledges, agrees and understands that the Confidential Information is confidential and proprietary\nbusiness, technical and financial information of OPC, Westinghouse and/or Stone & Webster, and the disclosure of Confidential\nInformation could cause substantial harm to the competitive and commercial interests of OPC and Contractor, or Westinghouse, or\nStone & Webster individually.\nC.\nRecipient hereby agrees and confirms that, pursuant to Article 3.A. above, Recipient will protect the confidentiality of such\nConfidential Information, including any information or analysis derived from it, and not disclose it to any third party, except as provided\nin this Article 3.C .\nExhibit L-2\n- Page5\n(1)\nSpecifically, Recipient will not disclose nor release any Confidential Information obtained in the course of review of the\nDocuments to anyone, either during or after the period of performance of the Contract, other than:\n(a)\nindividuals within Recipient’s organization who are directly concerned with the performance of the Contract and the\nPurpose, and who have executed a nondisclosure and non-use agreement in substantially the same form of this Agreement, or\nwho are secretarial or word processing personnel to whom Recipient has provided the Confidential Information solely for the\npurpose of Recipient’s performance of the Contract and the Purpose and who are under the same obligations of confidentiality\nand nonuse as the Recipient;\n(b)\nindividuals who are employees of the United States’ government in connection with their work in relation to the DOE\nBorrowers’ DOE Loan Guarantees for the Project, designated in writing, including by e-mail, by an attorney in the DOE,\nprovided (1) such individual employees of the United States’ government have confirmed to Recipient in writing, including by\ne-mail, that they have a need to know such Confidential Information in connection with their work in relation to the DOE\nBorrowers’ DOE Loan Guarantees for the Project;\n(c)\nwith respect to any such Confidential Information obtained in the course of review of the Documents listed in items\n(i) through (v) and (xiii) through (xx) of Article 2(b), to attorneys at Chadbourne & Parke LLP or Hunton & Williams LLP who\nhave confirmed to Recipient in writing, including by email, that they have entered into a confidentiality agreement with OPC\non terms similar to this Agreement with respect to such Documents; and\n(d)\nas required by law, including without limitation pursuant to direction or an order from a court or federal office (e.g .,\nthe Government Accountability Office) of competent jurisdiction, provided that Recipient shall follow the procedure set out in\nArticle 8 below.\n(2)\nFor any such disclosure described in this Article 3, Recipient shall minimize the amount of Confidential Information disclosed\nto only the Confidential Information that Recipient in good faith and in its discretion believes is required to be disclosed and shall\nreasonably cooperate with OPC or Contractor, or Westinghouse or Stone & Webster individually, in any efforts that OPC or Contractor,\nor Westinghouse or Stone & Webster individually, may take to limit disclosure of the Confidential Information.\n(3)\nRecipient warrants that it is not included in any United States Government published list of persons or entities whose export or\nimport privileges are in any way restricted. Recipient warrants that it shall not disclose any Confidential Information to any third parties\nif such third party is, at the time of the disclosure, included in any United States Government published list of persons or entities whose\nexport or import privileges are in any way restricted. Recipient acknowledges that Confidential Information may be subject to one or\nmore of the U.S. Government export control laws\nExhibit L-2\n- Page6\nand regulations, including without limit the U.S. Export Administration Regulations (EAR), and the regulations of the U.S. Department\nof Energy at 10 CFR Part 810. Accordingly, Recipient shall not transfer or disclose, or permit the transfer or disclosure in any medium,\nConfidential Information received under this Agreement to: (i) any person that is not a citizen, national, permanent resident alien or\n“Protected Person” of the United States; (ii) any foreign country; or (iii) any legal entity organized under the laws of a country other\nthan the United States, including without limit its employees, directors, owners, affiliated companies, or agents and representatives,\nwithout specific authorization from OPC and Westinghouse and only in accordance with applicable U.S . Government export control\nregulations.\n4.\nOPC makes no representation whatsoever (and none is to be implied or relied upon by Recipient) as to the sufficiency or accuracy of the\nConfidential Information provided hereunder, the ability of Recipient to use the Confidential Information for its intended purpose, or the result to\nbe obtained therefrom. GPC covenants that the Documents that OPC shall make available to the Recipient for its review shall be a true, correct\nand complete copy of the Documents as of the time that OPC makes the Documents available to the Recipient.\n5.\nRecipient hereby accepts responsibility for its own acts. To the extent that OPC, Westinghouse or Stone & Webster suffers any damage\nas a result of either (a) Recipient’s publication or disclosure of the Confidential Information in any way whatsoever to any unauthorized person\nor (b) the use of the Confidential Information by Recipient, Recipient shall be liable for any and all actual damages suffered by OPC,\nWestinghouse and/or Stone & Webster as a result of such unauthorized publication, disclosure or use, not to exceed $3,500,000. In addition,\nRecipient acknowledges that OPC, Westinghouse, and/or Stone &Webster may suffer irreparable harm as a result of Recipient’s actions under\neither (a) or (b) herein above, and Recipient hereby agrees that OPC, Westinghouse and/or Stone & Webster shall be entitled to seek an\ninjunction or other equitable relief should such action be taken by Recipient. For purposes of this Article 5 and Article 8 below, Westinghouse\nand/or Stone & Webster shall be considered third party beneficiaries hereunder.\n6.\nRecipient further agrees that Recipient will not have the right to receive electronic or hard copies of such Documents under this\nAgreement, but will be entitled to review the Documents from time to time during the term of Recipient’s services under the Contract in the\noffices of GPC in Atlanta, GA or at the Vogtle 3 & 4 Project site in Waynesboro, GA upon reasonable notice to GPC and Contractor.\n7.\nOPC acknowledges that in the performance of the Contract, Recipient is required to undertake a review of the Documents and may be\nrequired to prepare written summaries of Documents or analyses of the information contained therein for review by DOE and such individuals as\nset forth in Article 3.C(1)(b) and/or Article 3.C(1)(c) above. In Recipient’s review of the Documents, Recipient shall be entitled to prepare such\nwritten notes and analyses as Recipient shall deem appropriate for purposes of preparing such summaries or analyses. All such written\nsummaries, notes and analyses shall contain a prominent statement on the cover page stating the following: “This document contains\nConfidential Information of OPC, Westinghouse, Stone & Webster, and/or their partners and suppliers.” No such summary, note or analysis, nor\nExhibit L-2\n- Page7\nany excerpt thereof, shall be disclosed by Recipient to any third party except as provided in Article 3.C above.\n8.\nIf Recipient is notified that it is required by law, including without limitation pursuant to direction or an order from a court or federal\noffice (e.g ., the Government Accountability Office) of competent jurisdiction (including by oral questions, interrogatories, subpoena, government\ninvestigative demand or similar process) to release Confidential Information, upon Recipient’s receipt of any such notice, Recipient shall provide\nprompt written notice thereof to OPC, Westinghouse and Stone & Webster, by email, fax or overnight courier at their respective addresses below\nor such other addresses as they may notify to Recipient in writing from time to time, so as to allow OPC or Contractor, or Westinghouse or\nStone & Webster individually, the opportunity to seek to limit the extent of disclosure of the Confidential Information and/or to seek a protective\norder or other appropriate remedy (and/or waive compliance with the provisions of this Agreement). If such limitation or protective order or\nother appropriate remedy is not obtained before Recipient is legally required to produce such Confidential Information (or compliance with the\nprovisions of this Agreement is waived), Recipient after consultation with OPC and Westinghouse, shall disclose only the minimum amount of\nConfidential Information that Recipient in good faith and in its discretion believes is legally required.\nIf to Westinghouse:\nWestinghouse Electric Company LLC\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Frank G. Gill\nCommercial Director, Vogtle 3 & 4 Project\nFacsimile: 1-724-940-8502\nEmail: gillfg@westinghouse.com\nWith a copy to:\nWestinghouse Electric Company LLC\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Sr. Vice President & General Counsel\nFacsimile: 1-724-940-8508\nEmail: sweenemt@westinghouse.com\nIf to Stone & Webster:\nStone & Webster, Inc.\n128 South Tryon Street\nCharlotte, NC 28202\nAttention: Senior Associate General Counsel\nFacsimile: (704) 331-6001\nEmail: Mark McKain@cbi.com\nExhibit L-2\n- Page8\nWith a copy to:\nStone & Webster, Inc.\n100 Technology Center Drive\nStoughton, Massachusetts 02072\nAttention: Nuclear Division Counsel\nFacsimile: 617-589-7575\nEmail: Ken.Jenkins@cbi.com\n9.\nRecipient acknowledges that the Confidential Information will only be utilized in accordance with the task or subtask assignment\npursuant to the Contract for the Purpose and acknowledges that the disclosure of this Confidential Information is otherwise restricted by OPC as\nsubmitter.\n10.\nThis Agreement shall be governed in accordance with the laws of the State of New York without giving effect to any choice of law,\nprovision, or rule (whether of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than New\nYork.\nExhibit L-2\n- Page9\nACCEPTED AND AGREED\nBy:\nName:\nTitle:\nDate:\nAddress for Notices:\nE-mail:\nPhone:\nFax:\nACKNOWLEDGED AND AGREED\nOGLETHORPE POWER CORPORATION (AN ELECTRIC MEMBERSHIP CORPORATION)\nBy:\nName:\nTitle:\nDate:\nAddress for Notices:\nOglethorpe Power Corporation\n2100 East Exchange Place\nTucker, Georgia 30034-5336\nAttention: Chief Financial Officer\nFax: 770-270-7977\nEmail: betsy.higgins@opc.com\nWith a copy to:\nOglethorpe Power Corporation\n2100 East Exchange Place\nTucker, GA 30084-5336\nAttention: General Counsel\nFax: 770-270-7977\nE-mail: annalisa.bloodworth@opc.com\nExhibit L-2 - Page 10 Exhibit I.-2\nto Amended and Restated Loan Guarantee Agreement\nFORM OF NONDISCLOSURE AGREEMENT FOR LENDER’S ENGINEER\n[FORM OF] NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this “Agreement”) is dated [ ] and is between [ ,a corporation] [[ ], an employee\nof 1(26) (“Recipient”) and Oglethorpe Power Corporation (An Electric Membership Corporation), an electric membership corporation\norganized and existing under the laws of Georgia (“OPC”). Capitalized terms used but not otherwise defined in this Agreement have the\nmeanings provided in the EPC Agreement, as defined in Article 2(b)(i) below.\n1. Recipient is participating in providing technical advisory and support services to the Department of Energy, Loan Programs\nOffice (“DOE”), under Contract No. DE-DT002463 (the “Contract”), in connection with (a) DOE’s negotiation of certain loan guarantee\nagreements and related financing documents between DOE and each of Georgia Power Company (“GPC”), OPC and/or the Municipal Electric\nAuthority of Georgia or any of its wholly owned subsidiaries (each, a “DOE Borrower”) pursuant to which DOE would guarantee the repayment\nof a loan to such DOE Borrower for the construction, operation and ownership of Vogtle Units 3 and 4 (the “Project”) and (b) the related due\ndiligence (each such guarantee, a “DOE Loan Guarantee”; such loan guarantee agreements collectively, the “DOE Loan Guarantee\nAgreements”).\n2. @) In order to permit Recipient to review Confidential Information (as hereinafter defined) of OPC and/or its Contractor,\na consortium composed of Westinghouse Electric Company, LLC (“Westinghouse”) and Stone & Webster, Inc. (“Stone & Webster”), that may be\ncontained in the materials described in Article 2(b) hereof (the “Documents”), OPC and Recipient desire to enter into this Agreement which shall\napply to any review of Confidential Information contained in the Documents after the date hereof by Recipient. For the purposes of this\nAgreement, “Confidential Information” means the entirety of Documents identified in Section 2(b) below, but excludes any Publicly Disclosed\nInformation (as defined herein) or which Recipient has been authorized in writing by OPC to publicly disclose (excluding the disclosures\npermitted to be made by Recipient pursuant to Article 3.C below). For purposes of this Agreement, “Publicly Disclosed Information” means\nterms, conditions or other information that has become generally available to the public other than: (i) as a result of disclosure by Recipient, or\n(ii) any Confidential Information that Recipient knows has been disclosed by a third party (x) approved to receive such Confidential Information\nhereunder in violation of the terms of this Agreement or (y) in violation of any obligation of confidentiality of such third party similar to the\nterms of this Agreement.\n(b) The Documents to which this Agreement shall apply are:\ni. the Engineering, Procurement and Construction Agreement between GPC, acting for itself and as agent for the other Owners\n(as such term is defined therein, the “Owners”), and a consortium consisting of Westinghouse and Stone & Webster\n(26) For Lender’s Engineer’s NDA, use first bracketed option; for each individual Lender’s Engineer employee’s NDA, use second bracketed\noption.\nExhibit L-2 - Page 1\n \n(collectively, the “Contractor”), dated as of April 8, 2008, as it may be amended from time to time, for the Project (the “EPC\nAgreement”);\nii. an executed copy of the Toshiba Guarantee, as it may be amended from time to time in the form attached as Exhibit V-1 to the\nEPC Agreement;\niii. an executed copy of the Shaw Guarantee, as it may be amended from time to time in the form attached as Exhibit V-2 to the\nEPC Agreement;\niv. an executed copy of the Software License (as it may be amended from time to time, the “Software License”) attached as\nExhibit M to the EPC Agreement;\nv. the Contract for AP1000 Fuel Fabrication, Design and Related Services, dated as of April 3, 2009, between Southern Nuclear\nOperating Company, Inc. (the “Operator”), acting as the agent of Georgia Power Company, collectively as owner, and\nWestinghouse, as amended by Amendment No. 1 dated as of June 21, 2012, (as it may be further amended from time to time, the\n“Fuel Fabrication Agreement”); any other contract entered into after the date hereof by GPC or the Operator for the supply of fuel\nassemblies and/or related required software for the Project, as it may be amended from time to time (each, a “Fuel Supply\nAgreement”); the Amended and Restated License Agreement dated February 9, 2012, between the Operator, for itself and as agent\nfor Alabama Power Company and Georgia Power Company, collectively, as licensee, and Westinghouse (as it may be amended\nfrom time to time, the “License Agreement”); the agreement (if any), to be entered into after the date of this Agreement by\nWestinghouse and the Owners or GPC (acting for itself and as agent for the other Owners) if the AP1000-compatible version of\nBest Estimate Analysis for Core Operation Nuclear - Direct Margin Monitor™ System and its related deliverables to be used in the\noperation of the Project (the “BEACON-DMM™M Software”) is not otherwise provided for the Project, pursuant to which the\nOwners will acquire the BEACON-DMM™ Software including a license for the use thereof (as such agreement may be amended\nfrom time to time, the “BEACON Software Agreement”);\n \nvi. each Monthly Status Report provided by Contractor to GPC pursuant to the EPC Agreement ;\nvii. each monthly construction status report filed by GPC with the Georgia Public Service Commission (“Georgia PSC”);\nExhibit L-2 - Page 2\n \nviil. each monthly project report delivered by the Operator to the co-owners of Vogtle Units 3 & 4;\nix. the level two schedule of significant development, construction and completion milestones for the completion of each Unit, in\neach case prepared by GPC, as updated from time to time;\nx. a copy of the written materials delivered by GPC, as agent for the co-owners of Vogtle Units 3 & 4, to the co-owners in\nconnection with any monthly project management board meeting;\nxi. invoices submitted by Contractor to Owners pursuant to the EPC Agreement;\nxii. any semi-annual construction monitoring reports filed with the Georgia PSC by GPC pursuant to the final amended\ncertification order and all orders on remand entered by the Georgia PSC in Docket No. 27800-U that contains any Confidential and\nProprietary Information;\nxiil. any notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments\nwith respect to the foregoing, with respect to GPC, OPC or the Municipal Electric Authority of Georgia or any of its wholly owned\nsubsidiaries (each, a “DOE Borrower”) or the Operator or their participation in the Project, in each case that has, or could\nreasonably be expected to have, a Material Adverse Effect (as such term is defined in the DOE Loan Guarantee Agreements) or a\nmaterial adverse effect on the ability of the Project to be completed or operated, only to the extent such items contain Confidential\nand Proprietary Information;\nxiv. any notice and a copy of any of the following communications received by a DOE Borrower or the Operator from the NRC:\n(1) notice of a potential violation of severity level III or higher (or its equivalent in subsequent versions of the NRC Enforcement\nPolicy); (2) Red, Yellow or White NRC Inspection Finding (or its equivalent in subsequent versions of the Reactor Oversight\nPolicy); (3) notice to stop work or shut down or show cause; (4) Demand for Information under 10 CFR § 50.54(f) or 10 CFR §\n2.204; or (5) any other immediately effective, unilateral, docket-specific, non-routine communication requiring action by any\nlicensee with respect to the Project, only to the extent such items contain Confidential and Proprietary Information;\nExhibit L-2 - Page 3\n \nxv. any notice of any complaint, order, directive, claim, citation, designation or notice by any Governmental Authority (as such\nterm is defined in the DOE Loan Guarantee Agreements) with respect to the Project received by a DOE Borrower or the Operator\nrelating to any actual or potential material non-compliance with its then-existing obligations under Environmental Laws (as such\nterm is defined in the DOE Loan Guarantee Agreements) and any written description of any steps that DOE Borrower or the\nOperator is taking and proposes to take with respect to the matters described in such notice, only to the extent such items contain\nConfidential and Proprietary Information;\nxvi. notice and a copy of any stop work order issued by a DOE Borrower or the Operator with respect to any work on the Project,\nonly to the extent such items contain Confidential and Proprietary Information;\nXVil. any notice of any termination, amendment or material waiver or breach of, or material notices and material\ncorrespondence with respect to, the EPC Agreement, the Toshiba Guarantee, the Shaw Guarantee, the Software License, the Fuel\nFabrication Agreement, any other Fuel Supply Agreement, the BEACON Software Agreement (if any) or the License Agreement\nand any copy of any of the foregoing or any agreement, instrument or other document giving effect to any of the foregoing, only to\nthe extent such items contain Confidential and Proprietary Information;\nXViii. any notice of any event that constitutes an Event of Default, Potential Default, Mandatory Prepayment Event or Potential\nMandatory Prepayment Event (as such terms are defined in the DOE Loan Guarantee Agreements) and any written description of\nany steps any DOE Borrower has taken or proposes to take to remedy matters described in any such notice, only to the extent such\nitems contain Confidential and Proprietary Information;\nxix. any notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments with\nrespect to the foregoing, with respect to any DOE Borrower or the Operator or their participation in the Project, in each case that\nhas resulted in, or any DOE Borrower believes will result in, Public Inquiries (as such term is defined in the DOE Loan Guarantee\nAgreements), only to the extent such items contain Confidential and Proprietary Information; and\nxx. any lien waivers and releases, with respect to all work reflected in any invoice of the Contractor and, in the case of the invoice\nfor the final payment from the DOE Borrowers under the EPC Agreement, the Contractor’s affidavit, only to the extent such items\ncontain Confidential and Proprietary Information.\nExhibit L-2 - Page 4\n \n(0 Notwithstanding the foregoing, Confidential Information made available to Recipient pursuant to this Agreement shall\nnot include any such Confidential Information consisting of AP1000 engineering or design or related information of Contractor, or\nWestinghouse, or Stone & Webster individually, not included in the public version of the AP1000 Design Control Document, including as a\nrepresentative list of such information: calculations for safety-related systems and components; the Plant Design Model; instrumentation and\ncontrol functional, system, software and interface requirements and functional logic diagrams; designs, design specifications and qualification\nreports for safety-related and non-safety related equipment; systems design and design specification documents for safety-related and non-safety\nrelated systems; design change packages, including E&DCRs; instrumentation and control architecture diagrams, software verification and\nvalidation documentation, testing procedures and test results; component data packages; fabrication and construction drawings; and final plant\nas-built drawings.\n(d) To the extent, as a result of any request from Recipient (or a request from DOE on behalf of Recipient) to be allowed\nto see any Confidential Information that has been redacted under Section 2(c), OPC obtains from Contractor, or Westinghouse or Stone &\nWebster individually, permission to disclose such redacted Confidential Information, such Confidential Information will be disclosed by OPC to\nRecipient in the same manner and under the same conditions as such redacted Confidential Information has been made available by Contractor,\nor Westinghouse or Stone & Webster individually, to OPC.\n3. In connection with Recipient’s participation in providing the technical advisory and support services to the DOE under the Contract in\nconnection with the Project (the “Purpose™):\nA. Recipient acknowledges OPC may not disclose Confidential Information included in the Documents until and unless the\npersons to whom such Confidential Information is disclosed agree to keep such information, terms and conditions confidential as\nprovided herein and only to use such Confidential Information for the Purpose. Recipient by this Agreement agrees to keep the\nConfidential Information contained therein confidential, subject to the terms of this Agreement.\nB. Recipient hereby acknowledges, agrees and understands that the Confidential Information is confidential and proprietary\nbusiness, technical and financial information of OPC, Westinghouse and/or Stone & Webster, and the disclosure of Confidential\nInformation could cause substantial harm to the competitive and commercial interests of OPC and Contractor, or Westinghouse, or\nStone & Webster individually.\nC. Recipient hereby agrees and confirms that, pursuant to Article 3.A. above, Recipient will protect the confidentiality of such\nConfidential Information, including any information or analysis derived from it, and not disclose it to any third party, except as provided\nin this Article 3.C.\nExhibit L-2 - Page 5\n \n)\nSpecifically, Recipient will not disclose nor release any Confidential Information obtained in the course of review of the\nDocuments to anyone, either during or after the period of performance of the Contract, other than: @)\n(a) individuals within Recipient’s organization who are directly concerned with the performance of the Contract and the\nPurpose, and who have executed a nondisclosure and non-use agreement in substantially the same form of this Agreement, or\nwho are secretarial or word processing personnel to whom Recipient has provided the Confidential Information solely for the\npurpose of Recipient’s performance of the Contract and the Purpose and who are under the same obligations of confidentiality\nand nonuse as the Recipient;\n(b) individuals who are employees of the United States’ government in connection with their work in relation to the DOE\nBorrowers’ DOE Loan Guarantees for the Project, designated in writing, including by e-mail, by an attorney in the DOE,\nprovided (1) such individual employees of the United States’ government have confirmed to Recipient in writing, including by\ne-mail, that they have a need to know such Confidential Information in connection with their work in relation to the DOE\nBorrowers’ DOE Loan Guarantees for the Project;\n(0 with respect to any such Confidential Information obtained in the course of review of the Documents listed in items\n(i) through (v) and (xiii) through (xx) of Article 2(b), to attorneys at Chadbourne & Parke LLP or Hunton & Williams LLP who\nhave confirmed to Recipient in writing, including by email, that they have entered into a confidentiality agreement with OPC\non terms similar to this Agreement with respect to such Documents; and\n(d) as required by law, including without limitation pursuant to direction or an order from a court or federal office (e.g.,\nthe Government Accountability Office) of competent jurisdiction, provided that Recipient shall follow the procedure set out in\nArticle 8 below.\nFor any such disclosure described in this Article 3, Recipient shall minimize the amount of Confidential Information disclosed\nto only the Confidential Information that Recipient in good faith and in its discretion believes is required to be disclosed and shall reasonably cooperate with OPC or Contractor, or Westinghouse or Stone & Webster individually, in any efforts that OPC or Contractor, or Westinghouse or Stone & Webster individually, may take to limit disclosure of the Confidential Information. ©)\nRecipient warrants that it is not included in any United States Government published list of persons or entities whose export or\nimport privileges are in any way restricted. Recipient warrants that it shall not disclose any Confidential Information to any third parties if such third party is, at the time of the disclosure, included in any United States Government published list of persons or entities whose export or import privileges are in any way restricted. Recipient acknowledges that Confidential Information may be subject to one or more of the U.S. Government export control laws Exhibit L-2 - Page 6\n \nand regulations, including without limit the U.S. Export Administration Regulations (EAR), and the regulations of the U.S. Department\nof Energy at 10 CFR Part 810. Accordingly, Recipient shall not transfer or disclose, or permit the transfer or disclosure in any medium,\nConfidential Information received under this Agreement to: (i) any person that is not a citizen, national, permanent resident alien or\n“Protected Person” of the United States; (ii) any foreign country; or (iii) any legal entity organized under the laws of a country other\nthan the United States, including without limit its employees, directors, owners, affiliated companies, or agents and representatives,\nwithout specific authorization from OPC and Westinghouse and only in accordance with applicable U.S. Government export control\nregulations.\n4. OPC makes no representation whatsoever (and none is to be implied or relied upon by Recipient) as to the sufficiency or accuracy of the\nConfidential Information provided hereunder, the ability of Recipient to use the Confidential Information for its intended purpose, or the result to\nbe obtained therefrom. GPC covenants that the Documents that OPC shall make available to the Recipient for its review shall be a true, correct\nand complete copy of the Documents as of the time that OPC makes the Documents available to the Recipient.\n5. Recipient hereby accepts responsibility for its own acts. To the extent that OPC, Westinghouse or Stone & Webster suffers any damage\nas a result of either (a) Recipient’s publication or disclosure of the Confidential Information in any way whatsoever to any unauthorized person\nor (b) the use of the Confidential Information by Recipient, Recipient shall be liable for any and all actual damages suffered by OPC,\nWestinghouse and/or Stone & Webster as a result of such unauthorized publication, disclosure or use, not to exceed $3,500,000. In addition,\nRecipient acknowledges that OPC, Westinghouse, and/or Stone &Webster may suffer irreparable harm as a result of Recipient’s actions under\neither (a) or (b) herein above, and Recipient hereby agrees that OPC, Westinghouse and/or Stone & Webster shall be entitled to seek an\ninjunction or other equitable relief should such action be taken by Recipient. For purposes of this Article 5 and Article 8 below, Westinghouse\nand/or Stone & Webster shall be considered third party beneficiaries hereunder.\n6. Recipient further agrees that Recipient will not have the right to receive electronic or hard copies of such Documents under this\nAgreement, but will be entitled to review the Documents from time to time during the term of Recipient’s services under the Contract in the\noffices of GPC in Atlanta, GA or at the Vogtle 3 & 4 Project site in Waynesboro, GA upon reasonable notice to GPC and Contractor.\n7. OPC acknowledges that in the performance of the Contract, Recipient is required to undertake a review of the Documents and may be\nrequired to prepare written summaries of Documents or analyses of the information contained therein for review by DOE and such individuals as\nset forth in Article 3.C(1)(b) and/or Article 3.C(1)(c) above. In Recipient’s review of the Documents, Recipient shall be entitled to prepare such\nwritten notes and analyses as Recipient shall deem appropriate for purposes of preparing such summaries or analyses. All such written\nsummaries, notes and analyses shall contain a prominent statement on the cover page stating the following: “This document contains\nConfidential Information of OPC, Westinghouse, Stone & Webster, and/or their partners and suppliers.” No such summary, note or analysis, nor\nExhibit L-2 - Page 7\n \nany excerpt thereof, shall be disclosed by Recipient to any third party except as provided in Article 3.C above.\n8. If Recipient is notified that it is required by law, including without limitation pursuant to direction or an order from a court or federal\noffice (e.g., the Government Accountability Office) of competent jurisdiction (including by oral questions, interrogatories, subpoena, government\ninvestigative demand or similar process) to release Confidential Information, upon Recipient’s receipt of any such notice, Recipient shall provide\nprompt written notice thereof to OPC, Westinghouse and Stone & Webster, by email, fax or overnight courier at their respective addresses below\nor such other addresses as they may notify to Recipient in writing from time to time, so as to allow OPC or Contractor, or Westinghouse or\nStone & Webster individually, the opportunity to seek to limit the extent of disclosure of the Confidential Information and/or to seek a protective\norder or other appropriate remedy (and/or waive compliance with the provisions of this Agreement). If such limitation or protective order or\nother appropriate remedy is not obtained before Recipient is legally required to produce such Confidential Information (or compliance with the\nprovisions of this Agreement is waived), Recipient after consultation with OPC and Westinghouse, shall disclose only the minimum amount of\nConfidential Information that Recipient in good faith and in its discretion believes is legally required.\nIf to Westinghouse:\nWestinghouse Electric Company LLC\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Frank G. Gill\nCommercial Director, Vogtle 3 & 4 Project\nFacsimile: 1-724-940-8502\nEmail: gillfg@westinghouse.com\nWith a copy to:\nWestinghouse Electric Company LLC\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Sr. Vice President & General Counsel\nFacsimile: 1-724-940-8508\nEmail: sweenemt@westinghouse.com\nIf to Stone & Webster:\nStone & Webster, Inc.\n128 South Tryon Street\nCharlotte, NC 28202\nAttention: Senior Associate General Counsel\nFacsimile: (704) 331-6001\nEmail: Mark McKain@cbi.com\nExhibit L-2 - Page 8\n \nWith a copy to:\nStone & Webster, Inc.\n100 Technology Center Drive\nStoughton, Massachusetts 02072\nAttention: Nuclear Division Counsel\nFacsimile: 617-589-7575\nEmail: Ken.Jenkins@cbi.com\n9. Recipient acknowledges that the Confidential Information will only be utilized in accordance with the task or subtask assignment\npursuant to the Contract for the Purpose and acknowledges that the disclosure of this Confidential Information is otherwise restricted by OPC as\nsubmitter.\n10. This Agreement shall be governed in accordance with the laws of the State of New York without giving effect to any choice of law,\nprovision, or rule (whether of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than New\nYork.\nExhibit L-2 - Page 9\n \nACCEPTED AND AGREED\nBy:\nName:\nTitle:\nDate:\nAddress for Notices:\nE-mail:\nPhone:\nFax:\nACKNOWLEDGED AND AGREED\nOGLETHORPE POWER CORPORATION (AN ELECTRIC MEMBERSHIP CORPORATION)\nBy:\nName:\nTitle:\nDate:\nAddress for Notices:\nOglethorpe Power Corporation\n2100 East Exchange Place\nTucker, Georgia 30034-5336\nAttention: Chief Financial Officer\nFax: 770-270-7977\nEmail: betsy.higgins@opc.com\nWith a copy to:\nOglethorpe Power Corporation\n2100 East Exchange Place\nTucker, GA 30084-5336\nAttention: General Counsel\nFax: 770-270-7977\nE-mail: annalisa.bloodworth@opc.com\nExhibit L-2 - Page 10\n Exhibit L-2\nto Amended and Restated Loan Guarantee Agreement\nFORM OF NONDISCLOSURE AGREEMENT FOR LENDER'S ENGINEER\n[FORM OF] NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this "Agreement") is dated a\n1 and is between\ncorporation] [[\n], an employee\nof\n1(26) ("Recipient") and Oglethorpe Power Corporation (An Electric Membership Corporation), an electric membership corporation\norganized and existing under the laws of Georgia ("OPC"). Capitalized terms used but not otherwise defined in this Agreement have the\nmeanings provided in the EPC Agreement, as defined in Article 2(b)(i) below.\n1.\nRecipient is participating in providing technical advisory and support services to the Department of Energy, Loan Programs\nOffice ("DOE"), under Contract No. DE-DT002463 (the "Contract"), in connection with (a) DOE's negotiation of certain loan guarantee\nagreements and related financing documents between DOE and each of Georgia Power Company ("GPC"), OPC and/or the Municipal Electric\nAuthority of Georgia or any of its wholly owned subsidiaries (each, a "DOE Borrower") pursuant to which DOE would guarantee the repayment\nof a loan to such DOE Borrower for the construction, operation and ownership of Vogtle Units 3 and 4 (the "Project") and (b) the related due\ndiligence (each such guarantee, a "DOE Loan Guarantee"; such loan guarantee agreements collectively, the "DOE Loan Guarantee\nAgreements").\n2.\n(a)\nIn order to permit Recipient to review Confidential Information (as hereinafter defined) of OPC and/or its Contractor,\na consortium composed of Westinghouse Electric Company, LLC ("Westinghouse") and Stone & Webster, Inc. ("Stone & Webster"), that may be\ncontained in the materials described in Article 2(b) hereof (the "Documents"), OPC and Recipient desire to enter into this Agreement which shall\napply to any review of Confidential Information contained in the Documents after the date hereof by Recipient. For the purposes of this\nAgreement, "Confidential Information" means the entirety of Documents identified in Section 2(b) below, but excludes any Publicly Disclosed\nInformation (as defined herein) or which Recipient has been authorized in writing by OPC to publicly disclose (excluding the disclosures\npermitted to be made by Recipient pursuant to Article 3.C below). For purposes of this Agreement, "Publicly Disclosed Information" means\nterms, conditions or other information that has become generally available to the public other than: (i) as a result of disclosure by Recipient, or\n(ii) any Confidential Information that Recipient knows has been disclosed by a third party (x) approved to receive such Confidential Information\nhereunder in violation of the terms of this Agreement or (y) in violation of any obligation of confidentiality of such third party similar to the\nterms of this Agreement.\n(b)\nThe Documents to which this Agreement shall apply are:\ni.\nthe Engineering, Procurement and Construction Agreement between GPC, acting for itself and as agent for the other Owners\n(as such term is defined therein, the "Owners"), and a consortium consisting of Westinghouse and Stone & Webster\n(26) For Lender's Engineer's NDA, use first bracketed option; for each individual Lender's Engineer employee's NDA, use\nsecond bracketed\noption.\nExhibit L-2 Page 1\n(collectively, the "Contractor"), dated as of April 8, 2008, as it may be amended from time to time, for the Project (the "EPC\nAgreement");\nii.\nan executed copy of the Toshiba Guarantee, as it may be amended from time to time in the form attached as Exhibit V-1 to the\nEPC Agreement;\niii. an executed copy of the Shaw Guarantee, as it may be amended from time to time in the form attached as Exhibit V-2 to the\nEPC Agreement;\niv. an executed copy of the Software License (as it may be amended from time to time, the "Software License") attached as\nExhibit M to the EPC Agreement;\nV. the Contract for AP1000 Fuel Fabrication, Design and Related Services, dated as of April 3, 2009, between Southern Nuclear\nOperating Company, Inc. (the "Operator"), acting as the agent of Georgia Power Company, collectively as owner, and\nWestinghouse, as amended by Amendment No. 1 dated as of June 21, 2012, (as it may be further amended from time to time, the\n"Fuel Fabrication Agreement"); any other contract entered into after the date hereof by GPC or the Operator for the supply of fuel\nassemblies and/or related required software for the Project, as it may be amended from time to time (each, a "Fuel Supply.\nAgreement"); the Amended and Restated License Agreement dated February 9, 2012, between the Operator, for itself and as agent\nfor Alabama Power Company and Georgia Power Company, collectively, as licensee, and Westinghouse (as it may be amended\nfrom time to time, the "License Agreement"); the agreement (if any), to be entered into after the date of this Agreement by\nWestinghouse and the Owners or GPC (acting for itself and as agent for the other Owners) if the AP1000-compatible version of\nBest Estimate Analysis for Core Operation Nuclear Direct Margin MonitorTM System and its related deliverables to be used in the\noperation of the Project (the BEACON-DMMTM Soft Software") is not otherwise provided for the Project, pursuant to which the\nOwners will acquire the BEACON-DMMTM Software including a license for the use thereof (as such agreement may be amended\nfrom time to time, the "BEACON Software Agreement");\nvi. each Monthly Status Report provided by Contractor to GPC pursuant to the EPC Agreement\nvii. each monthly construction status report filed by GPC with the Georgia Public Service Commission ("GeorgiaPs PSC");\nExhibit L-2 - Page 2\nviii.\neach monthly project report delivered by the Operator to the cO-owners of Vogtle Units 3 & 4;\nix. the level two schedule of significant development, construction and completion milestones for the completion of each Unit, in\neach case prepared by GPC, as updated from time to time;\nX.\na copy of the written materials delivered by GPC, as agent for the cO-owners of Vogtle Units 3 & 4, to the cO-owners in\nconnection with any monthly project management board meeting;\nxi. invoices submitted by Contractor to Owners pursuant to the EPC Agreement;\nxii. any semi-annual construction monitoring reports filed with the Georgia PSC by GPC pursuant to the final amended\ncertification order and all orders on remand entered by the Georgia PSC in Docket No. 27800-U that contains any Confidential and\nProprietary Information;\nxiii.\nany notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments\nwith respect to the foregoing, with respect to GPC, OPC or the Municipal Electric Authority of Georgia or any of its wholly owned\nsubsidiaries (each, a "DOE Borrower") or the Operator or their participation in the Project, in each case that has, or could\nreasonably be expected to have, a Material Adverse Effect (as such term is defined in the DOE Loan Guarantee Agreements) or a\nmaterial adverse effect on the ability of the Project to be completed or operated, only to the extent such items contain Confidential\nand Proprietary Information;\nxiv. any notice and a copy of any of the following communications received by a DOE Borrower or the Operator from the NRC:\n(1) notice of a potential violation of severity level III or higher (or its equivalent in subsequent versions of the NRC Enforcement\nPolicy); (2) Red, Yellow or White NRC Inspection Finding (or its equivalent in subsequent versions of the Reactor Oversight\nPolicy); (3) notice to stop work or shut down or show cause; (4) Demand for Information under 10 CFR S 50.54(f) or 10 CFR S\n2.204; or (5) any other immediately effective, unilateral, docket-specific, non-routine communication requiring action by any\nlicensee with respect to the Project, only to the extent such items contain Confidential and Proprietary Information;\nExhibit L-2 Page 3\nXV. any notice of any complaint, order, directive, claim, citation, designation or notice by any Governmental Authority (as such\nterm is defined in the DOE Loan Guarantee Agreements) with respect to the Project received by a DOE Borrower or the Operator\nrelating to any actual or potential material non-compliance with its then-existing obligations under Environmental Laws (as such\nterm is defined in the DOE Loan Guarantee Agreements) and any written description of any steps that DOE Borrower or the\nOperator is taking and proposes to take with respect to the matters described in such notice, only to the extent such items contain\nConfidential and Proprietary Information;\nxvi. notice and a copy of any stop work order issued by a DOE Borrower or the Operator with respect to any work on the Project,\nonly to the extent such items contain Confidential and Proprietary Information;\nxvii.\nany notice of any termination, amendment or material waiver or breach of, or material notices and material\ncorrespondence with respect to, the EPC Agreement, the Toshiba Guarantee, the Shaw Guarantee, the Software License, the Fuel\nFabrication Agreement, any other Fuel Supply Agreement, the BEACON Software Agreement (if any) or the License Agreement\nand any copy of any of the foregoing or any agreement, instrument or other document giving effect to any of the foregoing, only to\nthe extent such items contain Confidential and Proprietary Information;\nxviii.\nany notice of any event that constitutes an Event of Default, Potential Default, Mandatory Prepayment Event or Potential\nMandatory Prepayment Event (as such terms are defined in the DOE Loan Guarantee Agreements) and any written description of\nany steps any DOE Borrower has taken or proposes to take to remedy matters described in any such notice, only to the extent such\nitems contain Confidential and Proprietary Information;\nxix. any notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments with\nrespect to the foregoing, with respect to any DOE Borrower or the Operator or their participation in the Project, in each case that\nhas resulted in, or any DOE Borrower believes will result in, Public Inquiries (as such term is defined in the DOE Loan Guarantee\nAgreements), only to the extent such items contain Confidential and Proprietary Information; and\nXX. any lien waivers and releases, with respect to all work reflected in any invoice of the Contractor and, in the case of the invoice\nfor the final payment from the DOE Borrowers under the EPC Agreement, the Contractor's affidavit, only to the extent such items\ncontain Confidential and Proprietary Information.\nExhibit L-2 - Page 4\n(c)\nNotwithstanding the foregoing, Confidential Information made available to Recipient pursuant to this Agreement shall\nnot include any such Confidential Information consisting of AP1000 engineering or design or related information of Contractor, or\nWestinghouse, or Stone & Webster individually, not included in the public version of the AP1000 Design Control Document, including as\na\nrepresentative list of such information: calculations for safety-related systems and components; the Plant Design Model; instrumentation and\ncontrol functional, system, software and interface requirements and functional logic diagrams; designs, design specifications and qualification\nreports for safety-related and non-safety related equipment; systems design and design specification documents for safety-related and non-safety\nrelated systems; design change packages, including E&DCRs; instrumentation and control architecture diagrams, software verification and\nvalidation\ndocumentation, testing procedures and test results; component data packages; fabrication and construction drawings; and final plant\nas-built drawings.\n(d)\nTo the extent, as a result of any request from Recipient (or a request from DOE on behalf of Recipient) to be allowed\nto see any Confidential Information that has been redacted under Section 2(c), OPC obtains from Contractor, or Westinghouse or Stone &\nWebster individually, permission to disclose such redacted Confidential Information, such Confidential Information will be disclosed by OPC to\nRecipient in the same manner and under the same conditions as such redacted Confidential Information has been made available by Contractor,\nor Westinghouse or Stone & Webster individually, to OPC.\n3.\nIn connection with Recipient's participation in providing the technical advisory and support services to the DOE under the Contract in\nconnection with the Project (the "Purpose"):\nA.\nRecipient acknowledges OPC may not disclose Confidential Information included in the Documents until and unless the\npersons to whom such Confidential Information is disclosed agree to keep such information, terms and conditions confidential as\nprovided herein and only to use such Confidential Information for the Purpose. Recipient by this Agreement agrees to keep the\nConfidential Information contained therein confidential, subject to the terms of this Agreement.\nB.\nRecipient hereby acknowledges, agrees and understands that the Confidential Information is confidential and proprietary\nbusiness, technical and financial information of OPC, Westinghouse and/or Stone & Webster, and the disclosure of Confidential\nInformation could cause substantial harm to the competitive and commercial interests of OPC and Contractor, or Westinghouse, or\nStone & Webster individually.\nC.\nRecipient hereby agrees and confirms that, pursuant to Article 3.A. above, Recipient will protect the confidentiality of such\nConfidential Information, including any information or analysis derived from it, and not disclose it to any third party, except as provided\nin this Article 3.C.\nExhibit L-2 Page 5\n(1)\nSpecifically, Recipient will not disclose nor release any Confidential Information obtained in the course of review of the\nDocuments to anyone, either during or after the period of performance of the Contract, other than:\n(a)\nindividuals within Recipient's organization who are directly concerned with the performance of the Contract and the\nPurpose, and who have executed a nondisclosure and non-use agreement in substantially the same form of this Agreement, or\nwho are secretarial or word processing personnel to whom Recipient has provided the Confidential Information solely for the\npurpose of Recipient's performance of the Contract and the Purpose and who are under the same obligations of confidentiality\nand nonuse as the Recipient;\n(b)\nindividuals who are employees of the United States' government in connection with their work in relation to the DOE\nBorrowers' DOE Loan Guarantees for the Project, designated in writing, including by e-mail, by an attorney in the DOE,\nprovided (1) such individual employees of the United States' government have confirmed to Recipient in writing, including by\ne-mail, that they have a need to know such Confidential Information in connection with their work in relation to the DOE\nBorrowers' DOE Loan Guarantees for the Project;\n(c)\nwith respect to any such Confidentia Information obtained in the course of review of the Documents listed in items\n(i) through (v) and (xiii) through (xx) of Article 2(b), to attorneys at Chadbourne & Parke LLP or Hunton & Williams LLP who\nhave confirmed to Recipient in writing, including by email, that they have entered into a confidentiality agreement with OPC\non terms similar to this Agreement with respect to such Documents; and\n(d)\nas required by law, including without limitation pursuant to direction or an order from a court or federal office (e.g.,\nthe Government Accountability Office) of competent jurisdiction, provided that Recipient shall follow the procedure set out in\nArticle 8 below.\n(2)\nFor any such disclosure described in this Article 3, Recipient shall minimize the amount of Confidential Information disclosed\nto only the Confidential Information that Recipient in good faith and in its discretion believes is required to be disclosed and shall\nreasonably cooperate with OPC or Contractor, or Westinghouse or Stone & Webster individually, in any efforts that OPC or Contractor,\nor Westinghouse or Stone & Webster individually, may take to limit disclosure of the Confidential Information.\n(3)\nRecipient warrants that it is not included in any United States Government published list of persons or entities whose export or\nimport privileges are in any way restricted. Recipient warrants that it shall not disclose any Confidential Information to any third parties\nif such third party is, at the time of the disclosure, included in any United States Government published list of persons or entities whose\nexport or import privileges are in any way restricted. Recipient acknowledges that Confidential Information may be subject to one or\nmore of the U.S. Government export control laws\nExhibit L-2 - Page 6\nand regulations, including without limit the U.S. Export Administration Regulations (EAR), and the regulations of the U.S. Department\nof Energy at 10 CFR Part 810. Accordingly, Recipient shall not transfer or disclose, or permit the transfer or disclosure in any medium,\nConfidential Information received under this Agreement to: (i) any person that is not a citizen, national, permanent resident alien or\n"Protected Person" of the United States; (ii) any foreign country; or (iii) any legal entity organized under the laws of a country other\nthan the United States, including without limit its employees, directors, owners, affiliated companies, or agents and representatives,\nwithout specific authorization from OPC and Westinghouse and only in accordance with applicable U.S. Government export control\nregulations.\n4.\nOPC makes no representation whatsoever (and none is to be implied or relied upon by Recipient) as to the sufficiency or accuracy of the\nConfidential Information provided hereunder, the ability of Recipient to use the Confidential Information for its intended purpose, or the result to\nbe obtained therefrom. GPC covenants that the Documents that OPC shall make available to the Recipient for its review shall be a true, correct\nand complete copy of the Documents as of the time that OPC makes the Documents available to the Recipient.\n5.\nRecipient hereby accepts responsibility for its own acts. To the extent that OPC, Westinghouse or Stone & Webster suffers any damage\nas a result of either (a) Recipient's publication or disclosure of the Confidential Information in any way whatsoever to any unauthorized person\nor (b) the use of the Confidential Information by Recipient, Recipient shall be liable for any and all actual damages suffered by OPC,\nWestinghouse and/or Stone & Webster as a result of such unauthorized publication, disclosure or use, not to exceed $3,500,000. In addition,\nRecipient acknowledges that OPC, Westinghouse, and/or Stone &Webster may suffer irreparable harm as a result of Recipient's actions under\neither (a) or (b) herein above, and Recipient hereby agrees that OPC, Westinghouse and/or Stone & Webster shall be entitled to seek an\ninjunction or other equitable relief should such action be taken by Recipient. For purposes of this Article 5 and Article 8 below, Westinghouse\nand/or Stone & Webster shall be considered third party beneficiaries hereunder.\n6.\nRecipient further agrees that Recipient will not have the right to receive electronic or hard copies of such Documents under this\nAgreement, but will be entitled to review the Documents from time to time during the term of Recipient's services under the Contract in the\noffices of GPC in Atlanta, GA or at the Vogtle 3 & 4 Project site in Waynesboro, GA upon reasonable notice to GPC and Contractor.\n7.\nOPC acknowledges that in the performance of the Contract, Recipient is required to undertake a review of the Documents and may be\nrequired to prepare written summaries of Documents or analyses of the information contained therein for review by DOE and such individuals as\nset forth in Article 3.C(1)(b) and/or Article 3.C(1)(c) above. In Recipient's review of the Documents, Recipient shall be entitled to prepare such\nwritten notes and analyses as Recipient shall deem appropriate for purposes of preparing such summaries or analyses. All such written\nsummaries, notes and analyses shall contain a prominent statement on the cover page stating the following: "This document contains\nConfidential Information of OPC, Westinghouse, Stone & Webster, and/or their partners and suppliers." No such summary, note or analysis, nor\nExhibit L-2 Page 7\nany excerpt thereof, shall be disclosed by Recipient to any third party except as provided in Article 3.C above.\n8.\nIf Recipient is notified that it is required by law, including without limitation pursuant to direction or an order from a court or federal\noffice (e.g., the Government Accountability Office) of competent jurisdiction (including by oral questions, interrogatories, subpoena, government\ninvestigative demand or similar process) to release Confidential Information, upon Recipient's receipt of any such notice, Recipient shall provide\nprompt written notice thereof to OPC, Westinghouse and Stone & Webster, by email, fax or overnight courier at their respective addresses below\nor such other addresses as they may notify to Recipient in writing from time to time, so as to allow OPC or Contractor, or Westinghouse or\nStone & Webster individually, the opportunity to seek to limit the extent of disclosure of the Confidential Information and/or to seek a protective\norder or other appropriate remedy (and/or waive compliance with the provisions of this Agreement). If such limitation or protective order or\nother appropriate remedy is not obtained before Recipient is legally required to produce such Confidential Information (or compliance with the\nprovisions of this Agreement is waived), Recipient after consultation with OPC and Westinghouse, shall disclose only the minimum amount of\nConfidential Information that Recipient in good faith and in its discretion believes is legally required.\nIf to Westinghouse:\nWestinghouse Electric Company LLC\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Frank G. Gill\nCommercial Director, Vogtle 3 & 4 Project\nFacsimile: 1-724-940-8502\nEmail: gillfg@westinghouse.com\nWith a copy to:\nWestinghouse Electric Company LLC\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Sr. Vice President & General Counsel\nFacsimile: 1-724-940-8508\nEmail: sweenemt@westinghouse.com\nIf to Stone & Webster:\nStone & Webster, Inc.\n128 South Tryon Street\nCharlotte, NC 28202\nAttention: Senior Associate General Counsel\nFacsimile: (704) 331-6001\nEmail: Mark McKain@cbi.com\nExhibit L-2 - Page 8\nWith a copy to:\nStone & Webster, Inc.\n100 Technology Center Drive\nStoughton, Massachusetts 02072\nAttention: Nuclear Division Counsel\nFacsimile: 617-589-7575\nEmail: (en.Jenkins@cbi.com\n9.\nRecipient acknowledges that the Confidential Information will only be utilized in accordance with the task or subtask assignment\npursuant to the Contract for the Purpose and acknowledges that the disclosure of this Confidential Information is otherwise restricted by OPC as\nsubmitter.\n10.\nThis Agreement shall be governed in accordance with the laws of the State of New York without giving effect to any choice of law,\nprovision, or rule (whether of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than New\nYork.\nExhibit L-2 - Page 9\nACCEPTED AND AGREED\nBy:\nName:\nTitle:\nDate:\nAddress for Notices:\nE-mail:\nPhone:\nFax:\nACKNOWLEDGED AND AGREED\nOGLETHORPE POWER CORPORATION (AN ELECTRIC MEMBERSHIP CORPORATION)\nBy:\nName:\nTitle:\nDate:\nAddress for Notices:\nOglethorpe Power Corporation\n2100 East Exchange Place\nTucker, Georgia 30034-5336\nAttention: Chief Financial Officer\nFax: 770-270-7977\nEmail: betsy.higgins@opc.com\nWith a copy to:\nOglethorpe Power Corporation\n2100 East Exchange Place\nTucker, GA 30084-5336\nAttention: General Counsel\nFax: 770-270-7977\nE-mail: annalisa.bloodworth@opc.com\nExhibit L-2 - Page 10 Exhibit L-2\nto Amended and Restated Loan Guarantee Agreement\nFORM OF NONDISCLOSURE AGREEMENT FOR LENDER’S ENGINEER\n[FORM OF] NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this “Agreement”) is dated [\n] and is between [\n,a\ncorporation] [[\n], an employee\nof\n](26) (“Recipient”) and Oglethorpe Power Corporation (An Electric Membership Corporation), an electric membership corporation\norganized and existing under the laws of Georgia (“OPC”). Capitalized terms used but not otherwise defined in this Agreement have the\nmeanings provided in the EPC Agreement, as defined in Article 2(b)(i) below.\n1.\nRecipient is participating in providing technical advisory and support services to the Department of Energy, Loan Programs\nOffice (“DOE”), under Contract No. DE-DT002463 (the “Contract”), in connection with (a) DOE’s negotiation of certain loan guarantee\nagreements and related financing documents between DOE and each of Georgia Power Company (“GPC”), OPC and/or the Municipal Electric\nAuthority of Georgia or any of its wholly owned subsidiaries (each, a “DOE Borrower”) pursuant to which DOE would guarantee the repayment\nof a loan to such DOE Borrower for the construction, operation and ownership of Vogtle Units 3 and 4 (the “Project”) and (b) the related due\ndiligence (each such guarantee, a “DOE Loan Guarantee”; such loan guarantee agreements collectively, the “DOE Loan Guarantee\nAgreements”).\n2.\n(a)\nIn order to permit Recipient to review Confidential Information (as hereinafter defined) of OPC and/or its Contractor,\na consortium composed of Westinghouse Electric Company, LLC (“Westinghouse”) and Stone & Webster, Inc. (“Stone & Webster”), that may be\ncontained in the materials described in Article 2(b) hereof (the “Documents”), OPC and Recipient desire to enter into this Agreement which shall\napply to any review of Confidential Information contained in the Documents after the date hereof by Recipient. For the purposes of this\nAgreement, “Confidential Information” means the entirety of Documents identified in Section 2(b) below, but excludes any Publicly Disclosed\nInformation (as defined herein) or which Recipient has been authorized in writing by OPC to publicly disclose (excluding the disclosures\npermitted to be made by Recipient pursuant to Article 3.C below). For purposes of this Agreement, “Publicly Disclosed Information” means\nterms, conditions or other information that has become generally available to the public other than: (i) as a result of disclosure by Recipient, or\n(ii) any Confidential Information that Recipient knows has been disclosed by a third party (x) approved to receive such Confidential Information\nhereunder in violation of the terms of this Agreement or (y) in violation of any obligation of confidentiality of such third party similar to the\nterms of this Agreement.\n(b)\nThe Documents to which this Agreement shall apply are:\ni. the Engineering, Procurement and Construction Agreement between GPC, acting for itself and as agent for the other Owners\n(as such term is defined therein, the “Owners”), and a consortium consisting of Westinghouse and Stone & Webster\n(26) For Lender ’s Engineer ’s NDA, use first bracketed option; for each individual Lender’s Engineer employee’s NDA, use\nsecond bracketed\noption.\nExhibit L-2\n- Page1\n(collectively, the “Contractor”), dated as of April 8, 2008, as it may be amended from time to time, for the Project (the “EPC\nAgreement”);\nii. an executed copy of the Toshiba Guarantee, as it may be amended from time to time in the form attached as Exhibit V-1 to the\nEPC Agreement;\niii. an executed copy of the Shaw Guarantee, as it may be amended from time to time in the form attached as Exhibit V-2 to the\nEPC Agreement;\niv. an executed copy of the Software License (as it may be amended from time to time, the “Software License”) attached as\nExhibit M to the EPC Agreement;\nv. the Contract for AP1000 Fuel Fabrication, Design and Related Services, dated as of April 3, 2009, between Southern Nuclear\nOperating Company, Inc. (the “Operator”), acting as the agent of Georgia Power Company, collectively as owner, and\nWestinghouse, as amended by Amendment No. 1 dated as of June 21, 2012, (as it may be further amended from time to time, the\n“Fuel Fabrication Agreement”); any other contract entered into after the date hereof by GPC or the Operator for the supply of fuel\nassemblies and/or related required software for the Project, as it may be amended from time to time (each, a “Fuel Supply\nAgreement”); the Amended and Restated License Agreement dated February 9, 2012, between the Operator, for itself and as agent\nfor Alabama Power Company and Georgia Power Company, collectively, as licensee, and Westinghouse (as it may be amended\nfrom time to time, the “License Agreement”); the agreement (if any), to be entered into after the date of this Agreement by\nWestinghouse and the Owners or GPC (acting for itself and as agent for the other Owners) if the AP1000-compatible version of\nBest Estimate Analysis for Core Operation Nuclear - Direct Margin Monitor System and its related deliverables to be used in the\noperation of the Project (the “BEACON-DMM Software”) is not otherwise provided for the Project, pursuant to which the\nOwners will acquire the BEACON-DMM Software including a license for the use thereof (as such agreement may be amended\nfrom time to time, the “BEACON Software Agreement”);\nvi. each Monthly Status Report provided by Contractor to GPC pursuant to the EPC Agreement ;\nvii. each monthly construction status report filed by GPC with the Georgia Public Service Commission (“Georgia PSC”);\nExhibit L-2\n- Page2\nTM\nTM\nTM\nviii.\neach monthly project report delivered by the Operator to the co-owners of Vogtle Units 3 & 4;\nix. the level two schedule of significant development, construction and completion milestones for the completion of each Unit, in\neach case prepared by GPC, as updated from time to time;\nx. a copy of the written materials delivered by GPC, as agent for the co-owners of Vogtle Units 3 & 4, to the co-owners in\nconnection with any monthly project management board meeting;\nxi. invoices submitted by Contractor to Owners pursuant to the EPC Agreement;\nxii. any semi-annual construction monitoring reports filed with the Georgia PSC by GPC pursuant to the final amended\ncertification order and all orders on remand entered by the Georgia PSC in Docket No. 27800-U that contains any Confidential and\nProprietary Information;\nxiii.\nany notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments\nwith respect to the foregoing, with respect to GPC, OPC or the Municipal Electric Authority of Georgia or any of its wholly owned\nsubsidiaries (each, a “DOE Borrower”) or the Operator or their participation in the Project, in each case that has, or could\nreasonably be expected to have, a Material Adverse Effect (as such term is defined in the DOE Loan Guarantee Agreements) or a\nmaterial adverse effect on the ability of the Project to be completed or operated, only to the extent such items contain Confidential\nand Proprietary Information;\nxiv. any notice and a copy of any of the following communications received by a DOE Borrower or the Operator from the NRC:\n(1) notice of a potential violation of severity level III or higher (or its equivalent in subsequent versions of the NRC Enforcement\nPolicy); (2) Red, Yellow or White NRC Inspection Finding (or its equivalent in subsequent versions of the Reactor Oversight\nPolicy); (3) notice to stop work or shut down or show cause; (4) Demand for Information under 10 CFR § 50.54(f) or 10 CFR §\n2.204; or (5) any other immediately effective, unilateral, docket-specific, non-routine communication requiring action by any\nlicensee with respect to the Project, only to the extent such items contain Confidential and Proprietary Information;\nExhibit L-2\n- Page3\nxv. any notice of any complaint, order, directive, claim, citation, designation or notice by any Governmental Authority (as such\nterm is defined in the DOE Loan Guarantee Agreements) with respect to the Project received by a DOE Borrower or the Operator\nrelating to any actual or potential material non-compliance with its then-existing obligations under Environmental Laws (as such\nterm is defined in the DOE Loan Guarantee Agreements) and any written description of any steps that DOE Borrower or the\nOperator is taking and proposes to take with respect to the matters described in such notice, only to the extent such items contain\nConfidential and Proprietary Information;\nxvi. notice and a copy of any stop work order issued by a DOE Borrower or the Operator with respect to any work on the Project,\nonly to the extent such items contain Confidential and Proprietary Information;\nxvii.\nany notice of any termination, amendment or material waiver or breach of, or material notices and material\ncorrespondence with respect to, the EPC Agreement, the Toshiba Guarantee, the Shaw Guarantee, the Software License, the Fuel\nFabrication Agreement, any other Fuel Supply Agreement, the BEACON Software Agreement (if any) or the License Agreement\nand any copy of any of the foregoing or any agreement, instrument or other document giving effect to any of the foregoing, only to\nthe extent such items contain Confidential and Proprietary Information;\nxviii.\nany notice of any event that constitutes an Event of Default, Potential Default, Mandatory Prepayment Event or Potential\nMandatory Prepayment Event (as such terms are defined in the DOE Loan Guarantee Agreements) and any written description of\nany steps any DOE Borrower has taken or proposes to take to remedy matters described in any such notice, only to the extent such\nitems contain Confidential and Proprietary Information;\nxix. any notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments with\nrespect to the foregoing, with respect to any DOE Borrower or the Operator or their participation in the Project, in each case that\nhas resulted in, or any DOE Borrower believes will result in, Public Inquiries (as such term is defined in the DOE Loan Guarantee\nAgreements), only to the extent such items contain Confidential and Proprietary Information; and\nxx. any lien waivers and releases, with respect to all work reflected in any invoice of the Contractor and, in the case of the invoice\nfor the final payment from the DOE Borrowers under the EPC Agreement, the Contractor’s affidavit, only to the extent such items\ncontain Confidential and Proprietary Information.\nExhibit L-2\n- Page4\n(c)\nNotwithstanding the foregoing, Confidential Information made available to Recipient pursuant to this Agreement shall\nnot include any such Confidential Information consisting of AP1000 engineering or design or related information of Contractor, or\nWestinghouse, or Stone & Webster individually, not included in the public version of the AP1000 Design Control Document, including as a\nrepresentative list of such information: calculations for safety-related systems and components; the Plant Design Model; instrumentation and\ncontrol functional, system, software and interface requirements and functional logic diagrams; designs, design specifications and qualification\nreports for safety-related and non-safety related equipment; systems design and design specification documents for safety-related and non-safety\nrelated systems; design change packages, including E&DCRs; instrumentation and control architecture diagrams, software verification and\nvalidation documentation, testing procedures and test results; component data packages; fabrication and construction drawings; and final plant\nas-built drawings.\n(d)\nTo the extent, as a result of any request from Recipient (or a request from DOE on behalf of Recipient) to be allowed\nto see any Confidential Information that has been redacted under Section 2(c), OPC obtains from Contractor, or Westinghouse or Stone &\nWebster individually, permission to disclose such redacted Confidential Information, such Confidential Information will be disclosed by OPC to\nRecipient in the same manner and under the same conditions as such redacted Confidential Information has been made available by Contractor,\nor Westinghouse or Stone & Webster individually, to OPC.\n3.\nIn connection with Recipient’s participation in providing the technical advisory and support services to the DOE under the Contract in\nconnection with the Project (the “Purpose”):\nA.\nRecipient acknowledges OPC may not disclose Confidential Information included in the Documents until and unless the\npersons to whom such Confidential Information is disclosed agree to keep such information, terms and conditions confidential as\nprovided herein and only to use such Confidential Information for the Purpose. Recipient by this Agreement agrees to keep the\nConfidential Information contained therein confidential, subject to the terms of this Agreement.\nB.\nRecipient hereby acknowledges, agrees and understands that the Confidential Information is confidential and proprietary\nbusiness, technical and financial information of OPC, Westinghouse and/or Stone & Webster, and the disclosure of Confidential\nInformation could cause substantial harm to the competitive and commercial interests of OPC and Contractor, or Westinghouse, or\nStone & Webster individually.\nC.\nRecipient hereby agrees and confirms that, pursuant to Article 3.A. above, Recipient will protect the confidentiality of such\nConfidential Information, including any information or analysis derived from it, and not disclose it to any third party, except as provided\nin this Article 3.C .\nExhibit L-2\n- Page5\n(1)\nSpecifically, Recipient will not disclose nor release any Confidential Information obtained in the course of review of the\nDocuments to anyone, either during or after the period of performance of the Contract, other than:\n(a)\nindividuals within Recipient’s organization who are directly concerned with the performance of the Contract and the\nPurpose, and who have executed a nondisclosure and non-use agreement in substantially the same form of this Agreement, or\nwho are secretarial or word processing personnel to whom Recipient has provided the Confidential Information solely for the\npurpose of Recipient’s performance of the Contract and the Purpose and who are under the same obligations of confidentiality\nand nonuse as the Recipient;\n(b)\nindividuals who are employees of the United States’ government in connection with their work in relation to the DOE\nBorrowers’ DOE Loan Guarantees for the Project, designated in writing, including by e-mail, by an attorney in the DOE,\nprovided (1) such individual employees of the United States’ government have confirmed to Recipient in writing, including by\ne-mail, that they have a need to know such Confidential Information in connection with their work in relation to the DOE\nBorrowers’ DOE Loan Guarantees for the Project;\n(c)\nwith respect to any such Confidential Information obtained in the course of review of the Documents listed in items\n(i) through (v) and (xiii) through (xx) of Article 2(b), to attorneys at Chadbourne & Parke LLP or Hunton & Williams LLP who\nhave confirmed to Recipient in writing, including by email, that they have entered into a confidentiality agreement with OPC\non terms similar to this Agreement with respect to such Documents; and\n(d)\nas required by law, including without limitation pursuant to direction or an order from a court or federal office (e.g .,\nthe Government Accountability Office) of competent jurisdiction, provided that Recipient shall follow the procedure set out in\nArticle 8 below.\n(2)\nFor any such disclosure described in this Article 3, Recipient shall minimize the amount of Confidential Information disclosed\nto only the Confidential Information that Recipient in good faith and in its discretion believes is required to be disclosed and shall\nreasonably cooperate with OPC or Contractor, or Westinghouse or Stone & Webster individually, in any efforts that OPC or Contractor,\nor Westinghouse or Stone & Webster individually, may take to limit disclosure of the Confidential Information.\n(3)\nRecipient warrants that it is not included in any United States Government published list of persons or entities whose export or\nimport privileges are in any way restricted. Recipient warrants that it shall not disclose any Confidential Information to any third parties\nif such third party is, at the time of the disclosure, included in any United States Government published list of persons or entities whose\nexport or import privileges are in any way restricted. Recipient acknowledges that Confidential Information may be subject to one or\nmore of the U.S. Government export control laws\nExhibit L-2\n- Page6\nand regulations, including without limit the U.S. Export Administration Regulations (EAR), and the regulations of the U.S. Department\nof Energy at 10 CFR Part 810. Accordingly, Recipient shall not transfer or disclose, or permit the transfer or disclosure in any medium,\nConfidential Information received under this Agreement to: (i) any person that is not a citizen, national, permanent resident alien or\n“Protected Person” of the United States; (ii) any foreign country; or (iii) any legal entity organized under the laws of a country other\nthan the United States, including without limit its employees, directors, owners, affiliated companies, or agents and representatives,\nwithout specific authorization from OPC and Westinghouse and only in accordance with applicable U.S . Government export control\nregulations.\n4.\nOPC makes no representation whatsoever (and none is to be implied or relied upon by Recipient) as to the sufficiency or accuracy of the\nConfidential Information provided hereunder, the ability of Recipient to use the Confidential Information for its intended purpose, or the result to\nbe obtained therefrom. GPC covenants that the Documents that OPC shall make available to the Recipient for its review shall be a true, correct\nand complete copy of the Documents as of the time that OPC makes the Documents available to the Recipient.\n5.\nRecipient hereby accepts responsibility for its own acts. To the extent that OPC, Westinghouse or Stone & Webster suffers any damage\nas a result of either (a) Recipient’s publication or disclosure of the Confidential Information in any way whatsoever to any unauthorized person\nor (b) the use of the Confidential Information by Recipient, Recipient shall be liable for any and all actual damages suffered by OPC,\nWestinghouse and/or Stone & Webster as a result of such unauthorized publication, disclosure or use, not to exceed $3,500,000. In addition,\nRecipient acknowledges that OPC, Westinghouse, and/or Stone &Webster may suffer irreparable harm as a result of Recipient’s actions under\neither (a) or (b) herein above, and Recipient hereby agrees that OPC, Westinghouse and/or Stone & Webster shall be entitled to seek an\ninjunction or other equitable relief should such action be taken by Recipient. For purposes of this Article 5 and Article 8 below, Westinghouse\nand/or Stone & Webster shall be considered third party beneficiaries hereunder.\n6.\nRecipient further agrees that Recipient will not have the right to receive electronic or hard copies of such Documents under this\nAgreement, but will be entitled to review the Documents from time to time during the term of Recipient’s services under the Contract in the\noffices of GPC in Atlanta, GA or at the Vogtle 3 & 4 Project site in Waynesboro, GA upon reasonable notice to GPC and Contractor.\n7.\nOPC acknowledges that in the performance of the Contract, Recipient is required to undertake a review of the Documents and may be\nrequired to prepare written summaries of Documents or analyses of the information contained therein for review by DOE and such individuals as\nset forth in Article 3.C(1)(b) and/or Article 3.C(1)(c) above. In Recipient’s review of the Documents, Recipient shall be entitled to prepare such\nwritten notes and analyses as Recipient shall deem appropriate for purposes of preparing such summaries or analyses. All such written\nsummaries, notes and analyses shall contain a prominent statement on the cover page stating the following: “This document contains\nConfidential Information of OPC, Westinghouse, Stone & Webster, and/or their partners and suppliers.” No such summary, note or analysis, nor\nExhibit L-2\n- Page7\nany excerpt thereof, shall be disclosed by Recipient to any third party except as provided in Article 3.C above.\n8.\nIf Recipient is notified that it is required by law, including without limitation pursuant to direction or an order from a court or federal\noffice (e.g ., the Government Accountability Office) of competent jurisdiction (including by oral questions, interrogatories, subpoena, government\ninvestigative demand or similar process) to release Confidential Information, upon Recipient’s receipt of any such notice, Recipient shall provide\nprompt written notice thereof to OPC, Westinghouse and Stone & Webster, by email, fax or overnight courier at their respective addresses below\nor such other addresses as they may notify to Recipient in writing from time to time, so as to allow OPC or Contractor, or Westinghouse or\nStone & Webster individually, the opportunity to seek to limit the extent of disclosure of the Confidential Information and/or to seek a protective\norder or other appropriate remedy (and/or waive compliance with the provisions of this Agreement). If such limitation or protective order or\nother appropriate remedy is not obtained before Recipient is legally required to produce such Confidential Information (or compliance with the\nprovisions of this Agreement is waived), Recipient after consultation with OPC and Westinghouse, shall disclose only the minimum amount of\nConfidential Information that Recipient in good faith and in its discretion believes is legally required.\nIf to Westinghouse:\nWestinghouse Electric Company LLC\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Frank G. Gill\nCommercial Director, Vogtle 3 & 4 Project\nFacsimile: 1-724-940-8502\nEmail: gillfg@westinghouse.com\nWith a copy to:\nWestinghouse Electric Company LLC\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Sr. Vice President & General Counsel\nFacsimile: 1-724-940-8508\nEmail: sweenemt@westinghouse.com\nIf to Stone & Webster:\nStone & Webster, Inc.\n128 South Tryon Street\nCharlotte, NC 28202\nAttention: Senior Associate General Counsel\nFacsimile: (704) 331-6001\nEmail: Mark McKain@cbi.com\nExhibit L-2\n- Page8\nWith a copy to:\nStone & Webster, Inc.\n100 Technology Center Drive\nStoughton, Massachusetts 02072\nAttention: Nuclear Division Counsel\nFacsimile: 617-589-7575\nEmail: Ken.Jenkins@cbi.com\n9.\nRecipient acknowledges that the Confidential Information will only be utilized in accordance with the task or subtask assignment\npursuant to the Contract for the Purpose and acknowledges that the disclosure of this Confidential Information is otherwise restricted by OPC as\nsubmitter.\n10.\nThis Agreement shall be governed in accordance with the laws of the State of New York without giving effect to any choice of law,\nprovision, or rule (whether of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than New\nYork.\nExhibit L-2\n- Page9\nACCEPTED AND AGREED\nBy:\nName:\nTitle:\nDate:\nAddress for Notices:\nE-mail:\nPhone:\nFax:\nACKNOWLEDGED AND AGREED\nOGLETHORPE POWER CORPORATION (AN ELECTRIC MEMBERSHIP CORPORATION)\nBy:\nName:\nTitle:\nDate:\nAddress for Notices:\nOglethorpe Power Corporation\n2100 East Exchange Place\nTucker, Georgia 30034-5336\nAttention: Chief Financial Officer\nFax: 770-270-7977\nEmail: betsy.higgins@opc.com\nWith a copy to:\nOglethorpe Power Corporation\n2100 East Exchange Place\nTucker, GA 30084-5336\nAttention: General Counsel\nFax: 770-270-7977\nE-mail: annalisa.bloodworth@opc.com\nExhibit L-2 - Page 10 0f32a3a54d9c1e42d26f66746821c3bf.pdf effective_date jurisdiction party term EX-99.D.3 12 d438799dex99d3.htm AMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nExhibit (d)(3)\nEXECUTION COPY\nAMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nThis Amended and Restated Mutual Nondisclosure Agreement (this “Agreement”), by and between JDA Software Group, Inc., a Delaware\ncorporation (together with its subsidiaries, “JDA”), and RedPrairie Holding, Inc., a Delaware corporation (together with its subsidiaries and New\nMountain Capital, LLC, “RHI”) (each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto.\n1. General. In connection with the consideration of a possible transaction involving RHI and JDA (a “Possible Transaction”), the Party\nreferred to as the “Provider” is prepared to make available to the Party referred to as the “Recipient” certain “Evaluation Material” (as defined in\nSection 2 below) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions as hereinafter set forth.\n2. Definitions.\n(a) The term “Evaluation Material” means information concerning the Provider which is furnished on or after November 8, 2011 to the\nRecipient or its Representatives (as defined below) on the Recipient's behalf in connection with the Recipient’s evaluation of a Possible\nTransaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies,\ninterpretations or other documents prepared by the Recipient or its Representatives to the extent containing or which are based upon, in whole\nor in part, the information furnished by the Provider hereunder, The term Evaluation Material does not include information which (i) is or\nbecomes publicly available other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was\nwithin the Recipient’s or its Representatives possession prior to its being furnished to the Recipient or its Representatives by or on behalf of\nthe Provider, provided that the source of such information was not known by the Recipient or its Representatives to be bound by a\nconfidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such\ninformation, (iii) is or becomes available to the Recipient or its Representatives on a non-confidential basis from a source other than the\nProvider or its Representatives, provided that the source of such information was not known by the Recipient or its Representatives to be\nbound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to\nsuch information, or (iv) was or is independently developed by the Recipient or the Recipient’s Representatives without the use of or reference\nto any Evaluation Material provided by or on behalf of Provider or its Representatives.\n(b) The term “Representatives” in the case of JDA shall mean the directors, officers, employees, counsel, investment bankers, financial\nadvisors, agents, consultants, advisors, accountants or auditors of JDA. The term “Representatives” in the case of RHI shall mean the\ndirectors, officers, employees, counsel, and with prior written consent of JDA (not to be unreasonably withheld), investment bankers, financial\nadvisors, potential sources of capital or financing (debt or equity), agents, consultants, advisors, accountants or auditors of RHI.\nNotwithstanding the foregoing, nothing in this Agreement shall restrict the ability of RHI to\ndiscuss with, or engage, Greenhill & Co, or Bain & Company to act as its consultant, investment banker or financial advisor in connection with\na Possible Transaction or to discuss with, or engage, Deloitte as its advisor or accountant in connection with a Possible Transaction.\n(c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity.\n3. Use of Evaluation Material. The Recipient and its Representatives will use the Evaluation Material solely for the purpose of evaluating a\nPossible Transaction and, subject to Section 5, will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that\nany of such information may be disclosed to the Recipient’s Representatives for the purpose of helping the Recipient evaluate a Possible\nTransaction. The Recipient agrees to be responsible for any breach of this Agreement by any of the Recipient’s Representatives, other than those of\nRecipient’s unaffiliated Representatives who have entered into a separate confidentiality agreement with the Provider. This Agreement does not grant\nthe Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. For the avoidance of\ndoubt, RHI agrees that it shall not disclose any of the Evaluation Material provided by or on behalf of JDA to any of its affiliates that are not\nincluded in the definition of RHI.\n4. Non-Disclosure of Discussions. Subject to Section 5, each Party agrees that, without the prior written consent of the other Party, such Party\nand its Representatives will not disclose to any other Person (i) that Evaluation Material has been exchanged between the Parties, (ii) that discussions\nor negotiations are taking place between the Parties concerning a Possible Transaction or (iii) any of the terms, conditions or other facts with respect\nthereto (including the status thereof); provided, however, that JDA may make such disclosure if it does not identify RHI by name or by identifiable\ndescription. RHI agrees that neither RHI nor any Representative (to the extent acting on behalf or at the direction of RHI) of RHI will, without the\nprior consent of JDA (not to be unreasonably withheld), directly or indirectly, enter into any agreement, arrangement or understanding with any other\nperson regarding a Possible Transaction (including, without limitation, financing thereof). RHI represents and warrants that, except as disclosed to\nJDA or its outside counsel prior to the date hereof, neither RHI nor any Representative of RHI have, prior to the date hereof, taken any of the actions\nreferred to in the immediately preceding sentence. Without limiting the foregoing, RHI agrees that neither RHI nor any Representative (to the extent\nacting on behalf and at the direction of RHI) of RHI will, without the prior written consent of JDA, enter into any exclusive arrangement with\nrespect to the provision of debt financing in connection with a Possible Transaction. For purposes of this Agreement, any agreement, arrangement or\nother understanding, whether written or oral, with any potential debt financing source which does, or could be reasonably expected to, legally or\ncontractually limit, restrict or otherwise impair in any manner, directly or indirectly, such financing source from acting as a potential debt financing\nsource to any other party with respect to a Potential Transaction shall be deemed an exclusive arrangement.\n5. Legally Required Disclosure. If the Recipient or its Representatives are requested or required (by oral questions, interrogatories, other\nrequests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the\nEvaluation Material or any of the facts disclosure of which is prohibited\n2\nunder Section 4 above, the Recipient or such Representative shall provide the Provider with prompt written notice of any such request or\nrequirement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, the Recipient or any of its\nRepresentatives is nonetheless legally compelled or required by law to disclose Evaluation Material or any of the facts disclosure of which is\nprohibited under Section 4, the Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion\nof such Evaluation Material or any such facts which the Recipient or its Representatives is legally compelled or required by law to disclose; provided\nthat the Recipient and/or its Representatives exercise its commercially reasonable efforts, at the Provider’s sole expense, to preserve the\nconfidentiality of such Evaluation Material or any of such facts, including, without limitation, by reasonably cooperating with the Provider to obtain\nan appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the\nPerson receiving the material. Notwithstanding the foregoing, Recipient and its Representatives may disclose such information, and need not provide\nsuch notice, in connection with a routine blanket audit or proceeding (including in response to oral questions or requests for information or\ndocuments) involving the Recipient or its Representatives, as applicable, by a regulatory authority with jurisdiction over the Recipient or such\nRepresentative where neither the Provider nor the Possible Transaction is the target of such proceeding or audit. In either case, the Recipient and its\nRepresentatives shall take reasonable measures to obtain confidential treatment with respect to any such information disclosed.\n6. No Contacts. Neither Party nor any of its Representatives will, in connection with its consideration of a Possible Transaction, initiate or\nmaintain any contact with any officer, director, employee, agent, supplier, customer, lender or competitor of the other Party, except with the prior\nwritten consent of the other Party. If discussions between the Parties regarding a Possible Transaction are terminated, the Parties and their\nRepresentatives shall promptly cease all such contacts that may have been previously authorized. Unless otherwise consented to by RHI or JDA, as\napplicable, in writing, all communications regarding a Possible Transaction, including (i) requests for information, (ii) requests for facility tours or\nmanagement meetings, (iii) discussions or questions regarding procedures, and (iv) requests for any consent required under this Agreement, will be\nsubmitted or directed (a) in the case of RHI, to Jack Qian at New Mountain Capital LLC (212-220 -5040; jqian@newmountaincapital.com), or Paul\nIlse at RHI (678-639-5398; Paul.IIse@RedPrairie.com), and (b) in the case of JDA, to David Lubeck (415- 315-8612;\ndavid.w.lubeck@jpmorgan.com) or Drago Rajkovic (415-315-8100; drago.rajkovic@jpmorgan.com) of J.P. Morgan Securities LLC or their\ndesignees.\n7. “Click Through” Agreements. The terms of this Agreement shall control over any additional purported confidentiality requirements imposed\nby an offering memorandum or electronic database, dataroom, or similar repository of Evaluation Material to which the Recipient or its\nRepresentatives are granted access in connection with this Agreement or a Possible Transaction, notwithstanding acceptance of such an offering\nmemorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such additional\nconfidentiality conditions, it being understood and agreed that the Recipient’s and its Representatives’ confidentiality obligations with respect to the\nEvaluation Material are exclusively governed by this Agreement and may not be enlarged except by an agreement executed by the Parties hereto in\ntraditional written format.\n3\n8. Termination of Discussions. If either Party decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the\nother Party of that decision. In that case, or at any time upon the written request of the Provider for any reason, the Recipient will, and will direct its\nRepresentatives to, within five business days after receipt of such notice or request, destroy or return all Evaluation Material in any way relating to\nthe Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be\nretained (except that one copy may be maintained by outside legal counsel to the Recipient for archival purposes), and the term of this Agreement\nshall be extended by a like number of days for each day that the Recipient or any of its Representatives is in non-compliance of this Section 8. The\nRecipient shall provide to the Provider a certificate of compliance with the previous sentence. Notwithstanding the return or destruction of the\nEvaluation Material, the Recipient and its Representatives will continue to be bound by the Recipient’s obligations hereunder with respect to such\nEvaluation Material.\n9. No Solicitation. The Recipient will not, within one year from the date of this Agreement, solicit the employment or consulting services of\nany of the officers of the Provider with whom it has had contact in connection with its evaluation of a Possible Transaction, so long as they are\nemployed by the Provider. The Recipient is not prohibited from: (i) soliciting by means of a general advertisement not directed at any particular\nindividual or the employees of the Provider generally, or (ii) engaging any recruiting firm or similar organization to identify or solicit individuals for\nemployment on behalf of the Recipient (and soliciting any person identified by any such recruiting firm or organization) so long as the Recipient\ndoes not identify the individuals to be solicited by such recruiting firm or organization.\n10. Standstill. RHI agrees that, for a period ending on the earlier of (x) one year after the date of this Agreement, (y) the date a public\nannouncement is made of the entry by JDA into a binding definitive agreement with any third party to effect a purchase, tender or exchange offer,\nmerger or other business combination that, if consummated, would result in a third party owning at least a majority of the outstanding voting\nsecurities of JDA or all or substantially all of the assets of JDA and its subsidiaries (taken as a whole) or (z) the date of commencement by a third\nparty of a tender or exchange offer for at least a majority of the outstanding voting securities of JDA (the “Standstill Period”), unless specifically\ninvited in writing by JDA or its Representatives, neither RHI nor any of its affiliates (as such term is defined under the Securities Exchange Act of\n1934, as amended (the “1934 Act”)) which has been furnished with Evaluation Material pursuant hereto (including New Mountain Capital LLC) or\nRepresentatives (acting on its behalf) will in any manner, directly or indirectly:\n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person\nto effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n(i) any acquisition of the equity securities (or beneficial ownership thereof) or any material assets of JDA or any of its\nsubsidiaries,\n(ii) any tender or exchange offer, merger or other business combination involving JDA or any of its subsidiaries,\n4\n(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to JDA or any of\nits subsidiaries, or\n(iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents to vote any voting securities of JDA;\n(b) form, join or in any way participate in a “group” (as defined under the 1934 Act with respect to the voting securities of JDA;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any\nextraordinary transaction involving JDA or its voting securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to change, control or influence the management, Board of Directors or policies\nof JDA;\n(e) take any action which might force JDA to make a public announcement regarding any of the types of matters set forth in (a) above;\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing; or\n(g) make any public announcement inconsistent with the agreements contained in this Section,\nRHI also agrees during the Standstill Period not to request (either directly or through its affiliates or Representatives) that JDA (or its directors,\nofficers, employees or agents), directly or indirectly, amend or waive any provision of this Section 10 (including this sentence) if such request would\nrequire JDA to publicly disclose such request. In no event shall this Section 10 be construed as prohibiting the taking of any of the aforementioned\nactions with respect to any Person other than JDA or any of its subsidiaries notwithstanding the fact that, at the time such action is taken, JDA (or a\nsubsidiary thereof) may be a subsidiary of such Person.\n11. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Party\nunderstands and agrees that the Parties have a commonality of interest with respect to such matters and it is the desire, intention and mutual\nunderstanding of the Parties that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of\nsuch material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation\nMaterial provided by a Party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall\nremain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine.\n5\n12. Compliance with Securities Laws. The Recipient and its Representatives agree not to use any Evaluation Material of the Provider in\nviolation of applicable securities laws.\n13. Not a Transaction Agreement. Each Party understands and agrees that no contract or agreement providing for a Possible Transaction exists\nbetween the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Party hereby\nwaives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until\nboth Parties shall have entered into a final definitive agreement for a Possible Transaction. Each Party also agrees that, unless and until a final\ndefinitive agreement regarding a Possible Transaction has been executed and delivered, neither Party will be under any legal obligation of any kind\nwhatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein.\n14. No Representations or Warranties: No Obligation to Disclose. The Recipient understands and acknowledges that neither the Provider nor\nits Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material\nfurnished by or on behalf of the Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting\nfrom the use of the Evaluation Material furnished to the Recipient or its Representatives or any errors therein or omissions therefrom. As to the\ninformation delivered to the Recipient, the Provider will only be liable for those representations or warranties which are made in a final definitive\nagreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein.\nNothing in this Agreement shall be construed as obligating a Party to provide, or to continue to provide, any information to any Person.\n15. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of\nthe other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either\nParty in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude\nany other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n16. Remedies. Each Party understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by\neither Party or any of its Representatives and that the Party against which such breach is committed shall be entitled to equitable relief, including\ninjunction and specific performance, as a remedy for any such breach or threat thereof without the requirement of posting a bond or other security.\nSuch remedies shall not be deemed to be the exclusive remedies for a breach by either Party of this Agreement, but shall be in addition to all other\nremedies available at law or equity to the Party against which such breach is committed. If a court of competent jurisdiction, pursuant to a final, non-\nappealable order, determines that the Recipient or any of its Representatives has breached this Agreement, the Recipient shall pay the reasonable\ncosts (including legal fees and expenses) incurred by the Provider in enforcing this Agreement.\n17. Governing Law. This Agreement is for the benefit of each Party and its successors (including any purchaser of such Party) and shall be\ngoverned by and construed in\n6\naccordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such state. Without limiting\nthe generality of the foregoing, this Agreement may be enforced by any Person with which the Recipient enters into a transaction. Each Party\nirrevocably and unconditionally submits to the jurisdiction of the federal and state courts located in the State of Delaware, New Castle County, for\nthe purpose of any action, suit or other proceeding arising out of or relating to this Agreement, and agree not to commence any action, suit or\nproceeding relating thereto except in any such court, and further agree that service of process, summons, notice or document by U.S . registered mail\nto its address set forth in this Agreement will be effective service of process for any action, suit or proceeding arising out of or relating to this\nAgreement. Each Party hereby also irrevocably and unconditionally (i) waives any objection to the laying of venue of any action, suit or proceeding\narising out of or relating to this Agreement in any such federal and state courts, and (ii) waives and agrees not to plead or claim in any such court that\nsuch action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n18. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be\ninvalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force\nand effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its\nextent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority making that determination shall only\nmodify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all\npurposes of this Agreement.\n19. Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent\nor interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise\nfavoring or disfavoring either Party by virtue of the authorship at any of the provisions of this Agreement.\n20. Term. This Agreement shall terminate two years after the date of this Agreement.\n21. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes\nall prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter (including that certain Mutual\nNondisclosure Agreement, dated November 8, 2011, between JDA Software Group, Inc. and RedPrairie Holding, Inc.).\n22. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together shall be\ndeemed to constitute a single instrument.\n7\nIN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of\nthe date written below.\nREDPRAIRIE HOLDING, INC.\nJDA SOFTWARE GROUP, INC.\nBy:\nLOGO\nBy:\nLOGO\nName: Laura L Fese\nName: David Kennedy\nTitle: Chief Legal Officer\nTitle: Executive Vice President and Chief Legal Officer\nDate: 9/4/12\nDate:\nAddress: 20700 Swenson Drive, Waukesha,WI 53186\nAddress: 14400 N. 87 Street, Scottsdale, AZ 85260-3649\nNEW MOUNTAIN CAPITAL LLC\nBy:\nLOGO\nName: Jack Qian\nTitle: Vice President\nDate:\nAddress: 787 Seventh Avenue, 49 Floor, New York, NY 10019\n8\nth\nth EX-99.D.3 12 d438799dex99d3.htm AMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nExhibit (d)(3)\nEXECUTION COPY\nAMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nThis Amended and Restated Mutual Nondisclosure Agreement (this “Agreement”), by and between JDA Software Group, Inc., a Delaware\ncorporation (together with its subsidiaries, “JDA”), and RedPrairie Holding, Inc., a Delaware corporation (together with its subsidiaries and New\nMountain Capital, LLC, “RHI”) (each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto.\n1. General. In connection with the consideration of a possible transaction involving RHI and JDA (a “Possible Transaction”), the Party\nreferred to as the “Provider” is prepared to make available to the Party referred to as the “Recipient” certain “Evaluation Material” (as defined in\nSection 2 below) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions as hereinafter set forth.\n2. Definitions.\n(a) The term “Evaluation Material” means information concerning the Provider which is furnished on or after November 8, 2011 to the\nRecipient or its Representatives (as defined below) on the Recipient's behalf in connection with the Recipient’s evaluation of a Possible\nTransaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies,\ninterpretations or other documents prepared by the Recipient or its Representatives to the extent containing or which are based upon, in whole\nor in part, the information furnished by the Provider hereunder, The term Evaluation Material does not include information which (i) is or\nbecomes publicly available other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was\nwithin the Recipient’s or its Representatives possession prior to its being furnished to the Recipient or its Representatives by or on behalf of\nthe Provider, provided that the source of such information was not known by the Recipient or its Representatives to be bound by a\nconfidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such\ninformation, (iii) is or becomes available to the Recipient or its Representatives on a non-confidential basis from a source other than the\nProvider or its Representatives, provided that the source of such information was not known by the Recipient or its Representatives to be\nbound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to\nsuch information, or (iv) was or is independently developed by the Recipient or the Recipient’s Representatives without the use of or reference\nto any Evaluation Material provided by or on behalf of Provider or its Representatives.\n \n \n(b) The term “Representatives” in the case of JDA shall mean the directors, officers, employees, counsel, investment bankers, financial\nadvisors, agents, consultants, advisors, accountants or auditors of JDA. The term “Representatives” in the case of RHI shall mean the\ndirectors, officers, employees, counsel, and with prior written consent of JDA (not to be unreasonably withheld), investment bankers, financial\nadvisors, potential sources of capital or financing (debt or equity), agents, consultants, advisors, accountants or auditors of RHI.\nNotwithstanding the foregoing, nothing in this Agreement shall restrict the ability of RHI to\ndiscuss with, or engage, Greenhill & Co, or Bain & Company to act as its consultant, investment banker or financial advisor in connection with\na Possible Transaction or to discuss with, or engage, Deloitte as its advisor or accountant in connection with a Possible Transaction.\n(c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity.\n3. Use of Evaluation Material. The Recipient and its Representatives will use the Evaluation Material solely for the purpose of evaluating a\nPossible Transaction and, subject to Section 5, will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that\nany of such information may be disclosed to the Recipient’s Representatives for the purpose of helping the Recipient evaluate a Possible\nTransaction. The Recipient agrees to be responsible for any breach of this Agreement by any of the Recipient’s Representatives, other than those of\nRecipient’s unaffiliated Representatives who have entered into a separate confidentiality agreement with the Provider. This Agreement does not grant\nthe Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. For the avoidance of\ndoubt, RHI agrees that it shall not disclose any of the Evaluation Material provided by or on behalf of JDA to any of its affiliates that are not\nincluded in the definition of RHI.\n4. Non-Disclosure of Discussions. Subject to Section 5, each Party agrees that, without the prior written consent of the other Party, such Party\nand its Representatives will not disclose to any other Person (i) that Evaluation Material has been exchanged between the Parties, (ii) that discussions\nor negotiations are taking place between the Parties concerning a Possible Transaction or (iii) any of the terms, conditions or other facts with respect\nthereto (including the status thereof); provided, however, that JDA may make such disclosure if it does not identify RHI by name or by identifiable\ndescription. RHI agrees that neither RHI nor any Representative (to the extent acting on behalf or at the direction of RHI) of RHI will, without the\nprior consent of JDA (not to be unreasonably withheld), directly or indirectly, enter into any agreement, arrangement or understanding with any other\nperson regarding a Possible Transaction (including, without limitation, financing thereof). RHI represents and warrants that, except as disclosed to\nJDA or its outside counsel prior to the date hereof, neither RHI nor any Representative of RHI have, prior to the date hereof, taken any of the actions\nreferred to in the immediately preceding sentence. Without limiting the foregoing, RHI agrees that neither RHI nor any Representative (to the extent\nacting on behalf and at the direction of RHI) of RHI will, without the prior written consent of JDA, enter into any exclusive arrangement with\nrespect to the provision of debt financing in connection with a Possible Transaction. For purposes of this Agreement, any agreement, arrangement or\nother understanding, whether written or oral, with any potential debt financing source which does, or could be reasonably expected to, legally or\ncontractually limit, restrict or otherwise impair in any manner, directly or indirectly, such financing source from acting as a potential debt financing\nsource to any other party with respect to a Potential Transaction shall be deemed an exclusive arrangement.\n5. Legally Required Disclosure. If the Recipient or its Representatives are requested or required (by oral questions, interrogatories, other\nrequests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the\nEvaluation Material or any of the facts disclosure of which is prohibited\nunder Section 4 above, the Recipient or such Representative shall provide the Provider with prompt written notice of any such request or\nrequirement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, the Recipient or any of its\nRepresentatives is nonetheless legally compelled or required by law to disclose Evaluation Material or any of the facts disclosure of which is\nprohibited under Section 4, the Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion\nof such Evaluation Material or any such facts which the Recipient or its Representatives is legally compelled or required by law to disclose; provided\nthat the Recipient and/or its Representatives exercise its commercially reasonable efforts, at the Provider’s sole expense, to preserve the\nconfidentiality of such Evaluation Material or any of such facts, including, without limitation, by reasonably cooperating with the Provider to obtain\nan appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the\nPerson receiving the material. Notwithstanding the foregoing, Recipient and its Representatives may disclose such information, and need not provide\nsuch notice, in connection with a routine blanket audit or proceeding (including in response to oral questions or requests for information or\ndocuments) involving the Recipient or its Representatives, as applicable, by a regulatory authority with jurisdiction over the Recipient or such\nRepresentative where neither the Provider nor the Possible Transaction is the target of such proceeding or audit. In either case, the Recipient and its\nRepresentatives shall take reasonable measures to obtain confidential treatment with respect to any such information disclosed.\n6. No Contacts. Neither Party nor any of its Representatives will, in connection with its consideration of a Possible Transaction, initiate or\nmaintain any contact with any officer, director, employee, agent, supplier, customer, lender or competitor of the other Party, except with the prior\nwritten consent of the other Party. If discussions between the Parties regarding a Possible Transaction are terminated, the Parties and their\nRepresentatives shall promptly cease all such contacts that may have been previously authorized. Unless otherwise consented to by RHI or JDA, as\napplicable, in writing, all communications regarding a Possible Transaction, including (i) requests for information, (ii) requests for facility tours or\nmanagement meetings, (iii) discussions or questions regarding procedures, and (iv) requests for any consent required under this Agreement, will be\nsubmitted or directed (a) in the case of RHI, to Jack Qian at New Mountain Capital LLC (212-220-5040; jgian@newmountaincapital.com), or Paul\nIlse at RHI (678-639-5398; Paul.llse@RedPrairie.com), and (b) in the case of JDA, to David Lubeck (415- 315-8612;\ndavid.w.lubeck@jpmorgan.com) or Drago Rajkovic (415-315-8100; drago.rajkovic@jpmorgan.com) of J.P. Morgan Securities LLC or their\ndesignees.\n7. “Click Through” Agreements. The terms of this Agreement shall control over any additional purported confidentiality requirements imposed\nby an offering memorandum or electronic database, dataroom, or similar repository of Evaluation Material to which the Recipient or its\nRepresentatives are granted access in connection with this Agreement or a Possible Transaction, notwithstanding acceptance of such an offering\nmemorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such additional\nconfidentiality conditions, it being understood and agreed that the Recipient’s and its Representatives’ confidentiality obligations with respect to the\nEvaluation Material are exclusively governed by this Agreement and may not be enlarged except by an agreement executed by the Parties hereto in\ntraditional written format.\n8. Termination of Discussions. If either Party decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the\nother Party of that decision. In that case, or at any time upon the written request of the Provider for any reason, the Recipient will, and will direct its\nRepresentatives to, within five business days after receipt of such notice or request, destroy or return all Evaluation Material in any way relating to\nthe Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be\nretained (except that one copy may be maintained by outside legal counsel to the Recipient for archival purposes), and the term of this Agreement\nshall be extended by a like number of days for each day that the Recipient or any of its Representatives is in non-compliance of this Section 8. The\nRecipient shall provide to the Provider a certificate of compliance with the previous sentence. Notwithstanding the return or destruction of the\nEvaluation Material, the Recipient and its Representatives will continue to be bound by the Recipient’s obligations hereunder with respect to such\nEvaluation Material.\n9. No Solicitation. The Recipient will not, within one year from the date of this Agreement, solicit the employment or consulting services of\nany of the officers of the Provider with whom it has had contact in connection with its evaluation of a Possible Transaction, so long as they are\nemployed by the Provider. The Recipient is not prohibited from: (i) soliciting by means of a general advertisement not directed at any particular\nindividual or the employees of the Provider generally, or (ii) engaging any recruiting firm or similar organization to identify or solicit individuals for\nemployment on behalf of the Recipient (and soliciting any person identified by any such recruiting firm or organization) so long as the Recipient\ndoes not identify the individuals to be solicited by such recruiting firm or organization.\n10. Standstill. RHI agrees that, for a period ending on the earlier of (x) one year after the date of this Agreement, (y) the date a public\nannouncement is made of the entry by JDA into a binding definitive agreement with any third party to effect a purchase, tender or exchange offer,\nmerger or other business combination that, if consummated, would result in a third party owning at least a majority of the outstanding voting\nsecurities of JDA or all or substantially all of the assets of JDA and its subsidiaries (taken as a whole) or (z) the date of commencement by a third\nparty of a tender or exchange offer for at least a majority of the outstanding voting securities of JDA (the “Standstill Period”), unless specifically\ninvited in writing by JDA or its Representatives, neither RHI nor any of its affiliates (as such term is defined under the Securities Exchange Act of\n1934, as amended (the “1934 Act”)) which has been furnished with Evaluation Material pursuant hereto (including New Mountain Capital LLC) or\nRepresentatives (acting on its behalf) will in any manner, directly or indirectly:\n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person\nto effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n(i) any acquisition of the equity securities (or beneficial ownership thereof) or any material assets of JDA or any of its\nsubsidiaries,\n(ii) any tender or exchange offer, merger or other business combination involving JDA or any of its subsidiaries,\n4\n(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to JDA or any of\nits subsidiaries, or\n(iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents to vote any voting securities of JDA;\n(b) form, join or in any way participate in a “group” (as defined under the 1934 Act with respect to the voting securities of JDA;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any\nextraordinary transaction involving JDA or its voting securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to change, control or influence the management, Board of Directors or policies\nof JDA;\n(e) take any action which might force JDA to make a public announcement regarding any of the types of matters set forth in (a) above;\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing; or\n(g) make any public announcement inconsistent with the agreements contained in this Section,\nRHI also agrees during the Standstill Period not to request (either directly or through its affiliates or Representatives) that JDA (or its directors,\nofficers, employees or agents), directly or indirectly, amend or waive any provision of this Section 10 (including this sentence) if such request would\nrequire JDA to publicly disclose such request. In no event shall this Section 10 be construed as prohibiting the taking of any of the aforementioned\nactions with respect to any Person other than JDA or any of its subsidiaries notwithstanding the fact that, at the time such action is taken, JDA (or a\nsubsidiary thereof) may be a subsidiary of such Person.\n11. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Party\nunderstands and agrees that the Parties have a commonality of interest with respect to such matters and it is the desire, intention and mutual\nunderstanding of the Parties that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of\nsuch material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation\nMaterial provided by a Party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall\nremain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine.\n5\n12. Compliance with Securities Laws. The Recipient and its Representatives agree not to use any Evaluation Material of the Provider in\nviolation of applicable securities laws.\n13. Not a Transaction Agreement. Each Party understands and agrees that no contract or agreement providing for a Possible Transaction exists\nbetween the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Party hereby\nwaives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until\nboth Parties shall have entered into a final definitive agreement for a Possible Transaction. Each Party also agrees that, unless and until a final\ndefinitive agreement regarding a Possible Transaction has been executed and delivered, neither Party will be under any legal obligation of any kind\nwhatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein.\n14. No Representations or Warranties: No Obligation to Disclose. The Recipient understands and acknowledges that neither the Provider nor\nits Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material\nfurnished by or on behalf of the Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting\nfrom the use of the Evaluation Material furnished to the Recipient or its Representatives or any errors therein or omissions therefrom. As to the\ninformation delivered to the Recipient, the Provider will only be liable for those representations or warranties which are made in a final definitive\nagreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein.\nNothing in this Agreement shall be construed as obligating a Party to provide, or to continue to provide, any information to any Person.\n15. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of\nthe other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either\nParty in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude\nany other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n16. Remedies. Each Party understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by\neither Party or any of its Representatives and that the Party against which such breach is committed shall be entitled to equitable relief, including\ninjunction and specific performance, as a remedy for any such breach or threat thereof without the requirement of posting a bond or other security.\nSuch remedies shall not be deemed to be the exclusive remedies for a breach by either Party of this Agreement, but shall be in addition to all other\nremedies available at law or equity to the Party against which such breach is committed. If a court of competent jurisdiction, pursuant to a final, non-\nappealable order, determines that the Recipient or any of its Representatives has breached this Agreement, the Recipient shall pay the reasonable\ncosts (including legal fees and expenses) incurred by the Provider in enforcing this Agreement.\n17. Governing Law. This Agreement is for the benefit of each Party and its successors (including any purchaser of such Party) and shall be\ngoverned by and construed in\naccordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such state. Without limiting\nthe generality of the foregoing, this Agreement may be enforced by any Person with which the Recipient enters into a transaction. Each Party\nirrevocably and unconditionally submits to the jurisdiction of the federal and state courts located in the State of Delaware, New Castle County, for\nthe purpose of any action, suit or other proceeding arising out of or relating to this Agreement, and agree not to commence any action, suit or\nproceeding relating thereto except in any such court, and further agree that service of process, summons, notice or document by U.S. registered mail\nto its address set forth in this Agreement will be effective service of process for any action, suit or proceeding arising out of or relating to this\nAgreement. Each Party hereby also irrevocably and unconditionally (i) waives any objection to the laying of venue of any action, suit or proceeding\narising out of or relating to this Agreement in any such federal and state courts, and (ii) waives and agrees not to plead or claim in any such court that\nsuch action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n18. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be\ninvalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force\nand effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its\nextent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority making that determination shall only\nmodify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all\npurposes of this Agreement.\n19. Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent\nor interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise\nfavoring or disfavoring either Party by virtue of the authorship at any of the provisions of this Agreement.\n20. Term. This Agreement shall terminate two years after the date of this Agreement.\n21. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes\nall prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter (including that certain Mutual\nNondisclosure Agreement, dated November 8, 2011, between JDA Software Group, Inc. and RedPrairie Holding, Inc.).\n22. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together shall be\ndeemed to constitute a single instrument.\nIN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of\nthe date written below.\nREDPRAIRIE HOLDING, INC. JDA SOFTWARE GROUP, INC.\nBy: ’.LOGO By: ’.LOGO\nName: Laura L Fese Name: David Kennedy\nTitle: Chief Legal Officer Title: Executive Vice President and Chief Legal Officer\nDate: 9/4/12 Date:\nAddress: 20700 Swenson Drive, Waukesha,WI 53186 Address: 14400 N. 87t Street, Scottsdale, AZ 85260-3649\nNEW MOUNTAIN CAPITAL LLC\nBy: ’.LOGO\nName: Jack Qian\nTitle: Vice President\nDate:\nAddress: 787 Seventh Avenue, 49t Floor, New York, NY 10019 EX-99.D.3 12 d438799dex99d3.htm AMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nExhibit (d)(3)\nEXECUTION COPY\nAMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nThis Amended and Restated Mutual Nondisclosure Agreement (this "Agreement"), by and between JDA Software Group, Inc., a Delaware\ncorporation (together with its subsidiaries, "JDA"), and RedPrairie Holding, Inc., a Delaware corporation (together with its subsidiaries and New\nMountain Capital, LLC, "RHI") (each a "Party" and collectively, the "Parties"), is dated as of the latest date set forth on the signature page hereto.\n1. General. In connection with the consideration of a possible transaction involving RHI and JDA (a "Possible Transaction"), the Party\nreferred\nto\nas\nthe\n"Provider"\nis\nprepared\nto\nmake\navailable\nto\nthe\nParty\nreferred\nto\nas\nthe\n"Recipient"\ncertain\n"Evaluation\nMaterial"\n(as\ndefined\nin\nSection 2 below) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions as hereinafter set forth.\n2. Definitions.\n(a) The term "Evaluation Material" means information concerning the Provider which is furnished on or after November 8, 2011 to the\nRecipient or its Representatives (as defined below) on the Recipient's behalf in connection with the Recipient's evaluation of a Possible\nTransaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies,\ninterpretations or other documents prepared by the Recipient or its Representatives to the extent containing or which are based upon, in whole\nor in part, the information furnished by the Provider hereunder, The term Evaluation Material does not include information which (i) is or\nbecomes publicly available other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii)\nwas\nwithin the Recipient's or its Representatives possession prior to its being furnished to the Recipient or its Representatives by or on behalf of\nthe Provider, provided that the source of such information was not known by the Recipient or its Representatives to be bound by a\nconfidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such\ninformation, (iii) is or becomes available to the Recipient or its Representatives on a non-confidential basis from a source other than the\nProvider or its Representatives, provided that the source of such information was not known by the Recipient or its Representatives to be\nbound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to\nsuch information, or (iv) was or is independently developed by the Recipient or the Recipient's Representatives without the use of or reference\nto any Evaluation Material provided by or on behalf of Provider or its Representatives.\n(b) The term "Representatives" in the case of JDA shall mean the directors, officers, employees, counsel, investment bankers, financial\nadvisors, agents, consultants, advisors, accountants or auditors of JDA. The term "Representatives" in the case of RHI shall mean the\ndirectors, officers, employees, counsel, and with prior written consent of JDA (not to be unreasonably withheld), investment bankers, financial\nadvisors, potential sources of capital or financing (debt or equity), agents, consultants, advisors, accountants or auditors of RHI.\nNotwithstanding the foregoing, nothing in this Agreement shall restrict the ability of RHI to\ndiscuss with, or engage, Greenhill & Co, or Bain & Company to act as its consultant, investment banker or financial advisor in connection with\na Possible Transaction or to discuss with, or engage, Deloitte as its advisor or accountant in connection with a Possible Transaction.\n(c)\nThe term "Person" includes the media and any corporation, partnership, group, individual or other entity.\n3. Use of Evaluation Material. The Recipient and its Representatives will use the Evaluation Material solely for the purpose of evaluating a\nPossible Transaction and, subject to Section 5, will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that\nany of such information may be disclosed to the Recipient's Representatives for the purpose of helping the Recipient evaluate a Possible\nTransaction. The Recipient agrees to be responsible for any breach of this Agreement by any of the Recipient's Representatives, other than those of\nRecipient's unaffiliated Representatives who have entered into a separate confidentiality agreement with the Provider. This Agreement does not grant\nthe Recipient or any of its Representatives any license to use the Provider's Evaluation Material except as provided herein. For the avoidance of\ndoubt, RHI agrees that it shall not disclose any of the Evaluation Material provided by or on behalf of JDA to any of its affiliates that are not\nincluded in the definition of RHI.\n4. Non-Disclosure of Discussions. Subject to Section 5, each Party agrees that, without the prior written consent of the other Party, such Party\nand its Representatives will not disclose to any other Person (i) that Evaluation Material has been exchanged between the Parties, (ii) that discussions\nor negotiations are taking place between the Parties concerning a Possible Transaction or (iii) any of the terms, conditions or other facts with respect\nthereto (including the status thereof); provided, however, that JDA may make such disclosure if it does not identify RHI by name or by identifiable\ndescription. RHI agrees that neither RHI nor any Representative (to the extent acting on behalf or at the direction of RHI) of RHI will, without the\nprior consent of JDA (not to be unreasonably withheld), directly or indirectly, enter into any agreement, arrangement or understanding with any other\nperson regarding a Possible Transaction (including, without limitation, financing thereof). RHI represents and warrants that, except as disclosed to\nJDA or its outside counsel prior to the date hereof, neither RHI nor any Representative of RHI have, prior to the date hereof, taken any of the actions\nreferred to in the immediately preceding sentence. Without limiting the foregoing, RHI agrees that neither RHI nor any Representative (to the extent\nacting on behalf and at the direction of RHI) of RHI will, without the prior written consent of JDA, enter into any exclusive arrangement with\nrespect to the provision of debt financing in connection with a Possible Transaction. For purposes of this Agreement, any agreement, arrangement\nor\nother understanding, whether written or oral, with any potential debt financing source which does, or could be reasonably expected to, legally or\ncontractually limit, restrict or otherwise impair in any manner, directly or indirectly, such financing source from acting as a potential debt financing\nsource to any other party with respect to a Potential Transaction shall be deemed an exclusive arrangement.\n5. Legally Required Disclosure. If the Recipient or its Representatives are requested or required (by oral questions, interrogatories, other\nrequests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the\nEvaluation Material or any of the facts disclosure of which is prohibited\n2\nunder Section 4 above, the Recipient or such Representative shall provide the Provider with prompt written notice of any such request\nor\nrequirement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, the Recipient or any of its\nRepresentatives is nonetheless legally compelled or required by law to disclose Evaluation Material or any of the facts disclosure of which\nis\nprohibited under Section 4, the Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion\nof such Evaluation Material or any such facts which the Recipient or its Representatives is legally compelled or required by law to disclose; provided\nthat the Recipient and/or its Representatives exercise its commercially reasonable efforts, at the Provider's sole expense, to preserve the\nconfidentiality of such Evaluation Material or any of such facts, including, without limitation, by reasonably cooperating with the Provider to obtain\nan appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the\nPerson receiving the material. Notwithstanding the foregoing, Recipient and its Representatives may disclose such information, and need not provide\nsuch notice, in connection with a routine blanket audit or proceeding (including in response to oral questions or requests for information or\ndocuments) involving the Recipient or its Representatives, as applicable, by a regulatory authority with jurisdiction over the Recipient or such\nRepresentative where neither the Provider nor the Possible Transaction is the target of such proceeding or audit. In either case, the Recipient and its\nRepresentatives shall take reasonable measures to obtain confidential treatment with respect to any such information disclosed.\n6. No Contacts. Neither Party nor any of its Representatives will, in connection with its consideration of a Possible Transaction, initiate or\nmaintain any contact with any officer, director, employee, agent, supplier, customer, lender or competitor of the other Party, except with the prior\nwritten consent of the other Party. If discussions between the Parties regarding a Possible Transaction are terminated, the Parties and their\nRepresentatives shall promptly cease all such contacts that may have been previously authorized. Unless otherwise consented to by RHI or JDA, as\napplicable, in writing, all communications regarding a Possible Transaction, including (i) requests for information, (ii) requests for facility tours or\nmanagement meetings, (iii) discussions or questions regarding procedures, and (iv) requests for any consent required under this Agreement, will be\nsubmitted or directed (a) in the case of RHI, to Jack Qian at New Mountain Capital LLC (212-220-5040; jqian@newmountaincapital.com), or Paul\nIlse at RHI (678-639-5398; Paul.IIse@RedPrairie.com), and (b) in the case of JDA, to David Lubeck 415-315-8612;\ndavid.w.lubeck@jpmorgan.com) or Drago Rajkovic (415-315-8100; drago.rajkovic@jpmorgan.com) of J.P. Morgan Securities LLC or their\ndesignees.\n7. "Click Through" Agreements. The terms of this Agreement shall control over any additional purported confidentiality requirements imposed\nby an offering memorandum or electronic database, dataroom, or similar repository of Evaluation Material to which the Recipient or its\nRepresentatives are granted access in connection with this Agreement or a Possible Transaction, notwithstanding acceptance of such an offering\nmemorandum or submission of an electronic signature, "clicking" on an "I Agree" icon or other indication of assent to such additional\nconfidentiality conditions, it being understood and agreed that the Recipient's and its Representatives' confidentiality obligations with respect to the\nEvaluation Material are exclusively governed by this Agreement and may not be enlarged except by an agreement executed by the Parties hereto in\ntraditional written format.\n3\n8. Termination of Discussions. If either Party decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the\nother Party of that decision. In that case, or at any time upon the written request of the Provider for any reason, the Recipient will, and will direct its\nRepresentatives to, within five business days after receipt of such notice or request, destroy or return all Evaluation Material in any way relating to\nthe Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be\nretained (except that one copy may be maintained by outside legal counsel to the Recipient for archival purposes), and the term of this Agreement\nshall be extended by a like number of days for each day that the Recipient or any of its Representatives is in non-compliance of this Section 8. The\nRecipient shall provide to the Provider a certificate of compliance with the previous sentence. Notwithstanding the return or destruction of the\nEvaluation Material, the Recipient and its Representatives will continue to be bound by the Recipient's obligations hereunder with respect to such\nEvaluation Material.\n9.\nNo Solicitation. The Recipient will not, within one year from the date of this Agreement, solicit the employment or consulting services of\nany of the officers of the Provider with whom it has had contact in connection with its evaluation of a Possible Transaction, so long as they are\nemployed by the Provider. The Recipient is not prohibited from: (i) soliciting by means of a general advertisement not directed at any particular\nindividual or the employees of the Provider generally, or (ii) engaging any recruiting firm or similar organization to identify or solicit individuals for\nemployment on behalf of the Recipient (and soliciting any person identified by any such recruiting firm or organization) so long as the Recipient\ndoes not identify the individuals to be solicited by such recruiting firm or organization.\n10. Standstill. RHI agrees that, for a period ending on the earlier of (x) one year after the date of this Agreement, (y) the date a public\nannouncement is made of the entry by JDA into a binding definitive agreement with any third party to effect a purchase, tender or exchange offer,\nmerger or other business combination that, if consummated, would result in a third party owning at least a majority of the outstanding voting\nsecurities of JDA or all or substantially all of the assets of JDA and its subsidiaries (taken as a whole) or (z) the date of commencement by a third\nparty of a tender or exchange offer for at least a majority of the outstanding voting securities of JDA (the "Standstill Period"), unless specifically\ninvited in writing by JDA or its Representatives, neither RHI nor any of its affiliates (as such term is defined under the Securities Exchange Act of\n1934, as amended (the "1934 Act")) which has been furnished with Evaluation Material pursuant hereto (including New Mountain Capital LLC) or\nRepresentatives (acting on its behalf) will in any manner, directly or indirectly:\n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person\nto effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n(i)\nany acquisition of the equity securities (or beneficial ownership thereof) or any material assets of JDA or any of its\nsubsidiaries,\n(ii)\nany tender or exchange offer, merger or other business combination involving JDA or any of its subsidiaries,\n4\n(iii)\nany\nrecapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to JDA or any\nof\nits subsidiaries, or\n(iv) any "solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and Exchange Commission)\nor\nconsents to vote any voting securities of JDA;\n(b) form, join or in any way participate in a "group" (as defined under the 1934 Act with respect to the voting securities of JDA;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any\nextraordinary transaction involving JDA or its voting securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to change, control or influence the management, Board of Directors or policies\nof JDA;\n(e) take any action which might force JDA to make a public announcement regarding any of the types of matters set forth in (a) above;\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing; or\n(g) make any public announcement inconsistent with the agreements contained in this Section,\nRHI also agrees during the Standstill Period not to request (either directly or through its affiliates or Representatives) that JDA (or its directors,\nofficers, employees or agents), directly or indirectly, amend or waive any provision of this Section 10 (including this sentence) if such request would\nrequire JDA to publicly disclose such request. In no event shall this Section 10 be construed as prohibiting the taking of any of the aforementioned\nactions with respect to any Person other than JDA or any of its subsidiaries notwithstanding the fact that, at the time such action is taken, JDA (or a\nsubsidiary thereof) may be a subsidiary of such Person.\n11.\nMaintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Party\nunderstands and agrees that the Parties have a commonality of interest with respect to such matters and it is the desire, intention and mutual\nunderstanding of the Parties that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of\nsuch material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation\nMaterial provided by a Party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege\nshall\nremain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine.\n5\n12. Compliance with Securities Laws. The Recipient and its Representatives agree not to use any Evaluation Material of the Provider in\nviolation of applicable securities laws.\n13. Not a Transaction Agreement. Each Party understands and agrees that no contract or agreement providing for a Possible Transaction exists\nbetween the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Party hereby\nwaives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until\nboth Parties shall have entered into a final definitive agreement for a Possible Transaction. Each Party also agrees that, unless and until a final\ndefinitive agreement regarding a Possible Transaction has been executed and delivered, neither Party will be under any legal obligation of any kind\nwhatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein.\n14. No Representations or Warranties: No Obligation to Disclose. The Recipient understands and acknowledges that neither the Provider nor\nits Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material\nfurnished by or on behalf of the Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting\nfrom the use of the Evaluation Material furnished to the Recipient or its Representatives or any errors therein or omissions therefrom. As to\nthe\ninformation delivered to the Recipient, the Provider will only be liable for those representations or warranties which are made in a final definitive\nagreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein.\nNothing in this Agreement shall be construed as obligating a Party to provide, or to continue to provide, any information to any Person.\n15. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of\nthe other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either\nParty in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude\nany other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n16.\nRemedies. Each Party understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by\neither Party or any of its Representatives and that the Party against which such breach is committed shall be entitled to equitable relief, including\ninjunction and specific performance, as a remedy for any such breach or threat thereof without the requirement of posting a bond or other security.\nSuch remedies shall not be deemed to be the exclusive remedies for a breach by either Party of this Agreement, but shall be in addition to all other\nremedies available at law or equity to the Party against which such breach is committed. If a court of competent jurisdiction, pursuant to a final, non-\nappealable order, determines that the Recipient or any of its Representatives has breached this Agreement, the Recipient shall pay the reasonable\ncosts (including legal fees and expenses) incurred by the Provider in enforcing this Agreement.\n17. Governing Law. This Agreement is for the benefit of each Party and its successors (including any purchaser of such Party) and shall be\ngoverned by and construed in\n6\naccordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such state. Without limiting\nthe generality of the foregoing, this Agreement may be enforced by any Person with which the Recipient enters into a transaction. Each Party\nirrevocably and unconditionally submits to the jurisdiction of the federal and state courts located in the State of Delaware, New Castle County, for\nthe purpose of any action, suit or other proceeding arising out of or relating to this Agreement, and agree not to commence any action, suit or\nproceeding relating thereto except in any such court, and further agree that service of process, summons, notice or document by U.S. registered mail\nto its address set forth in this Agreement will be effective service of process for any action, suit or proceeding arising out of or relating to this\nAgreement. Each Party hereby also irrevocably and unconditionally (i) waives any objection to the laying of venue of any action, suit or proceeding\narising out of or relating to this Agreement in any such federal and state courts, and (ii) waives and agrees not to plead or claim in any such court that\nsuch action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n18. Severability.. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be\ninvalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force\nand effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its\nextent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority making that determination shall only\nmodify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all\npurposes of this Agreement.\n19. Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent\nor interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise\nfavoring or disfavoring either Party by virtue of the authorship at any of the provisions of this Agreement.\n20. Term. This Agreement shall terminate two years after the date of this Agreement.\n21. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes\nall prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter (including that certain Mutual\nNondisclosure Agreement, dated November 8, 2011, between JDA Software Group, Inc. and RedPrairie Holding, Inc.).\n22. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together shall be\ndeemed to constitute a single instrument.\n7\nIN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of\nthe date written below.\nREDPRAIRIE HOLDING, INC.\nJDA SOFTWARE GROUP, INC.\nBy:\nLOGO\nBy:\nLOGO\nName: Laura L Fese\nName: David Kennedy\nTitle: Chief Legal Officer\nTitle: Executive Vice President and Chief Legal Officer\nDate: 9/4/12\nDate:\nAddress: 20700 Swenson Drive, Waukesha, WI 53186\nAddress: 14400 N. 87th Street, Scottsdale, AZ 85260-3649\nNEW MOUNTAIN CAPITAL LLC\nBy:\nLOGO\nName: Jack Qian\nTitle: Vice President\nDate:\nAddress: 787 Seventh Avenue, 49th Floor, New York, NY 10019\n8 EX-99.D.3 12 d438799dex99d3.htm AMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nExhibit (d)(3)\nEXECUTION COPY\nAMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nThis Amended and Restated Mutual Nondisclosure Agreement (this “Agreement”), by and between JDA Software Group, Inc., a Delaware\ncorporation (together with its subsidiaries, “JDA”), and RedPrairie Holding, Inc., a Delaware corporation (together with its subsidiaries and New\nMountain Capital, LLC, “RHI”) (each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto.\n1. General. In connection with the consideration of a possible transaction involving RHI and JDA (a “Possible Transaction”), the Party\nreferred to as the “Provider” is prepared to make available to the Party referred to as the “Recipient” certain “Evaluation Material” (as defined in\nSection 2 below) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions as hereinafter set forth.\n2. Definitions.\n(a) The term “Evaluation Material” means information concerning the Provider which is furnished on or after November 8, 2011 to the\nRecipient or its Representatives (as defined below) on the Recipient's behalf in connection with the Recipient’s evaluation of a Possible\nTransaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies,\ninterpretations or other documents prepared by the Recipient or its Representatives to the extent containing or which are based upon, in whole\nor in part, the information furnished by the Provider hereunder, The term Evaluation Material does not include information which (i) is or\nbecomes publicly available other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was\nwithin the Recipient’s or its Representatives possession prior to its being furnished to the Recipient or its Representatives by or on behalf of\nthe Provider, provided that the source of such information was not known by the Recipient or its Representatives to be bound by a\nconfidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such\ninformation, (iii) is or becomes available to the Recipient or its Representatives on a non-confidential basis from a source other than the\nProvider or its Representatives, provided that the source of such information was not known by the Recipient or its Representatives to be\nbound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to\nsuch information, or (iv) was or is independently developed by the Recipient or the Recipient’s Representatives without the use of or reference\nto any Evaluation Material provided by or on behalf of Provider or its Representatives.\n(b) The term “Representatives” in the case of JDA shall mean the directors, officers, employees, counsel, investment bankers, financial\nadvisors, agents, consultants, advisors, accountants or auditors of JDA. The term “Representatives” in the case of RHI shall mean the\ndirectors, officers, employees, counsel, and with prior written consent of JDA (not to be unreasonably withheld), investment bankers, financial\nadvisors, potential sources of capital or financing (debt or equity), agents, consultants, advisors, accountants or auditors of RHI.\nNotwithstanding the foregoing, nothing in this Agreement shall restrict the ability of RHI to\ndiscuss with, or engage, Greenhill & Co, or Bain & Company to act as its consultant, investment banker or financial advisor in connection with\na Possible Transaction or to discuss with, or engage, Deloitte as its advisor or accountant in connection with a Possible Transaction.\n(c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity.\n3. Use of Evaluation Material. The Recipient and its Representatives will use the Evaluation Material solely for the purpose of evaluating a\nPossible Transaction and, subject to Section 5, will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that\nany of such information may be disclosed to the Recipient’s Representatives for the purpose of helping the Recipient evaluate a Possible\nTransaction. The Recipient agrees to be responsible for any breach of this Agreement by any of the Recipient’s Representatives, other than those of\nRecipient’s unaffiliated Representatives who have entered into a separate confidentiality agreement with the Provider. This Agreement does not grant\nthe Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. For the avoidance of\ndoubt, RHI agrees that it shall not disclose any of the Evaluation Material provided by or on behalf of JDA to any of its affiliates that are not\nincluded in the definition of RHI.\n4. Non-Disclosure of Discussions. Subject to Section 5, each Party agrees that, without the prior written consent of the other Party, such Party\nand its Representatives will not disclose to any other Person (i) that Evaluation Material has been exchanged between the Parties, (ii) that discussions\nor negotiations are taking place between the Parties concerning a Possible Transaction or (iii) any of the terms, conditions or other facts with respect\nthereto (including the status thereof); provided, however, that JDA may make such disclosure if it does not identify RHI by name or by identifiable\ndescription. RHI agrees that neither RHI nor any Representative (to the extent acting on behalf or at the direction of RHI) of RHI will, without the\nprior consent of JDA (not to be unreasonably withheld), directly or indirectly, enter into any agreement, arrangement or understanding with any other\nperson regarding a Possible Transaction (including, without limitation, financing thereof). RHI represents and warrants that, except as disclosed to\nJDA or its outside counsel prior to the date hereof, neither RHI nor any Representative of RHI have, prior to the date hereof, taken any of the actions\nreferred to in the immediately preceding sentence. Without limiting the foregoing, RHI agrees that neither RHI nor any Representative (to the extent\nacting on behalf and at the direction of RHI) of RHI will, without the prior written consent of JDA, enter into any exclusive arrangement with\nrespect to the provision of debt financing in connection with a Possible Transaction. For purposes of this Agreement, any agreement, arrangement or\nother understanding, whether written or oral, with any potential debt financing source which does, or could be reasonably expected to, legally or\ncontractually limit, restrict or otherwise impair in any manner, directly or indirectly, such financing source from acting as a potential debt financing\nsource to any other party with respect to a Potential Transaction shall be deemed an exclusive arrangement.\n5. Legally Required Disclosure. If the Recipient or its Representatives are requested or required (by oral questions, interrogatories, other\nrequests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the\nEvaluation Material or any of the facts disclosure of which is prohibited\n2\nunder Section 4 above, the Recipient or such Representative shall provide the Provider with prompt written notice of any such request or\nrequirement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, the Recipient or any of its\nRepresentatives is nonetheless legally compelled or required by law to disclose Evaluation Material or any of the facts disclosure of which is\nprohibited under Section 4, the Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion\nof such Evaluation Material or any such facts which the Recipient or its Representatives is legally compelled or required by law to disclose; provided\nthat the Recipient and/or its Representatives exercise its commercially reasonable efforts, at the Provider’s sole expense, to preserve the\nconfidentiality of such Evaluation Material or any of such facts, including, without limitation, by reasonably cooperating with the Provider to obtain\nan appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the\nPerson receiving the material. Notwithstanding the foregoing, Recipient and its Representatives may disclose such information, and need not provide\nsuch notice, in connection with a routine blanket audit or proceeding (including in response to oral questions or requests for information or\ndocuments) involving the Recipient or its Representatives, as applicable, by a regulatory authority with jurisdiction over the Recipient or such\nRepresentative where neither the Provider nor the Possible Transaction is the target of such proceeding or audit. In either case, the Recipient and its\nRepresentatives shall take reasonable measures to obtain confidential treatment with respect to any such information disclosed.\n6. No Contacts. Neither Party nor any of its Representatives will, in connection with its consideration of a Possible Transaction, initiate or\nmaintain any contact with any officer, director, employee, agent, supplier, customer, lender or competitor of the other Party, except with the prior\nwritten consent of the other Party. If discussions between the Parties regarding a Possible Transaction are terminated, the Parties and their\nRepresentatives shall promptly cease all such contacts that may have been previously authorized. Unless otherwise consented to by RHI or JDA, as\napplicable, in writing, all communications regarding a Possible Transaction, including (i) requests for information, (ii) requests for facility tours or\nmanagement meetings, (iii) discussions or questions regarding procedures, and (iv) requests for any consent required under this Agreement, will be\nsubmitted or directed (a) in the case of RHI, to Jack Qian at New Mountain Capital LLC (212-220 -5040; jqian@newmountaincapital.com), or Paul\nIlse at RHI (678-639-5398; Paul.IIse@RedPrairie.com), and (b) in the case of JDA, to David Lubeck (415- 315-8612;\ndavid.w.lubeck@jpmorgan.com) or Drago Rajkovic (415-315-8100; drago.rajkovic@jpmorgan.com) of J.P. Morgan Securities LLC or their\ndesignees.\n7. “Click Through” Agreements. The terms of this Agreement shall control over any additional purported confidentiality requirements imposed\nby an offering memorandum or electronic database, dataroom, or similar repository of Evaluation Material to which the Recipient or its\nRepresentatives are granted access in connection with this Agreement or a Possible Transaction, notwithstanding acceptance of such an offering\nmemorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such additional\nconfidentiality conditions, it being understood and agreed that the Recipient’s and its Representatives’ confidentiality obligations with respect to the\nEvaluation Material are exclusively governed by this Agreement and may not be enlarged except by an agreement executed by the Parties hereto in\ntraditional written format.\n3\n8. Termination of Discussions. If either Party decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the\nother Party of that decision. In that case, or at any time upon the written request of the Provider for any reason, the Recipient will, and will direct its\nRepresentatives to, within five business days after receipt of such notice or request, destroy or return all Evaluation Material in any way relating to\nthe Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be\nretained (except that one copy may be maintained by outside legal counsel to the Recipient for archival purposes), and the term of this Agreement\nshall be extended by a like number of days for each day that the Recipient or any of its Representatives is in non-compliance of this Section 8. The\nRecipient shall provide to the Provider a certificate of compliance with the previous sentence. Notwithstanding the return or destruction of the\nEvaluation Material, the Recipient and its Representatives will continue to be bound by the Recipient’s obligations hereunder with respect to such\nEvaluation Material.\n9. No Solicitation. The Recipient will not, within one year from the date of this Agreement, solicit the employment or consulting services of\nany of the officers of the Provider with whom it has had contact in connection with its evaluation of a Possible Transaction, so long as they are\nemployed by the Provider. The Recipient is not prohibited from: (i) soliciting by means of a general advertisement not directed at any particular\nindividual or the employees of the Provider generally, or (ii) engaging any recruiting firm or similar organization to identify or solicit individuals for\nemployment on behalf of the Recipient (and soliciting any person identified by any such recruiting firm or organization) so long as the Recipient\ndoes not identify the individuals to be solicited by such recruiting firm or organization.\n10. Standstill. RHI agrees that, for a period ending on the earlier of (x) one year after the date of this Agreement, (y) the date a public\nannouncement is made of the entry by JDA into a binding definitive agreement with any third party to effect a purchase, tender or exchange offer,\nmerger or other business combination that, if consummated, would result in a third party owning at least a majority of the outstanding voting\nsecurities of JDA or all or substantially all of the assets of JDA and its subsidiaries (taken as a whole) or (z) the date of commencement by a third\nparty of a tender or exchange offer for at least a majority of the outstanding voting securities of JDA (the “Standstill Period”), unless specifically\ninvited in writing by JDA or its Representatives, neither RHI nor any of its affiliates (as such term is defined under the Securities Exchange Act of\n1934, as amended (the “1934 Act”)) which has been furnished with Evaluation Material pursuant hereto (including New Mountain Capital LLC) or\nRepresentatives (acting on its behalf) will in any manner, directly or indirectly:\n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person\nto effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n(i) any acquisition of the equity securities (or beneficial ownership thereof) or any material assets of JDA or any of its\nsubsidiaries,\n(ii) any tender or exchange offer, merger or other business combination involving JDA or any of its subsidiaries,\n4\n(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to JDA or any of\nits subsidiaries, or\n(iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents to vote any voting securities of JDA;\n(b) form, join or in any way participate in a “group” (as defined under the 1934 Act with respect to the voting securities of JDA;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any\nextraordinary transaction involving JDA or its voting securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to change, control or influence the management, Board of Directors or policies\nof JDA;\n(e) take any action which might force JDA to make a public announcement regarding any of the types of matters set forth in (a) above;\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing; or\n(g) make any public announcement inconsistent with the agreements contained in this Section,\nRHI also agrees during the Standstill Period not to request (either directly or through its affiliates or Representatives) that JDA (or its directors,\nofficers, employees or agents), directly or indirectly, amend or waive any provision of this Section 10 (including this sentence) if such request would\nrequire JDA to publicly disclose such request. In no event shall this Section 10 be construed as prohibiting the taking of any of the aforementioned\nactions with respect to any Person other than JDA or any of its subsidiaries notwithstanding the fact that, at the time such action is taken, JDA (or a\nsubsidiary thereof) may be a subsidiary of such Person.\n11. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Party\nunderstands and agrees that the Parties have a commonality of interest with respect to such matters and it is the desire, intention and mutual\nunderstanding of the Parties that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of\nsuch material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation\nMaterial provided by a Party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall\nremain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine.\n5\n12. Compliance with Securities Laws. The Recipient and its Representatives agree not to use any Evaluation Material of the Provider in\nviolation of applicable securities laws.\n13. Not a Transaction Agreement. Each Party understands and agrees that no contract or agreement providing for a Possible Transaction exists\nbetween the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Party hereby\nwaives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until\nboth Parties shall have entered into a final definitive agreement for a Possible Transaction. Each Party also agrees that, unless and until a final\ndefinitive agreement regarding a Possible Transaction has been executed and delivered, neither Party will be under any legal obligation of any kind\nwhatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein.\n14. No Representations or Warranties: No Obligation to Disclose. The Recipient understands and acknowledges that neither the Provider nor\nits Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material\nfurnished by or on behalf of the Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting\nfrom the use of the Evaluation Material furnished to the Recipient or its Representatives or any errors therein or omissions therefrom. As to the\ninformation delivered to the Recipient, the Provider will only be liable for those representations or warranties which are made in a final definitive\nagreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein.\nNothing in this Agreement shall be construed as obligating a Party to provide, or to continue to provide, any information to any Person.\n15. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of\nthe other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either\nParty in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude\nany other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n16. Remedies. Each Party understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by\neither Party or any of its Representatives and that the Party against which such breach is committed shall be entitled to equitable relief, including\ninjunction and specific performance, as a remedy for any such breach or threat thereof without the requirement of posting a bond or other security.\nSuch remedies shall not be deemed to be the exclusive remedies for a breach by either Party of this Agreement, but shall be in addition to all other\nremedies available at law or equity to the Party against which such breach is committed. If a court of competent jurisdiction, pursuant to a final, non-\nappealable order, determines that the Recipient or any of its Representatives has breached this Agreement, the Recipient shall pay the reasonable\ncosts (including legal fees and expenses) incurred by the Provider in enforcing this Agreement.\n17. Governing Law. This Agreement is for the benefit of each Party and its successors (including any purchaser of such Party) and shall be\ngoverned by and construed in\n6\naccordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such state. Without limiting\nthe generality of the foregoing, this Agreement may be enforced by any Person with which the Recipient enters into a transaction. Each Party\nirrevocably and unconditionally submits to the jurisdiction of the federal and state courts located in the State of Delaware, New Castle County, for\nthe purpose of any action, suit or other proceeding arising out of or relating to this Agreement, and agree not to commence any action, suit or\nproceeding relating thereto except in any such court, and further agree that service of process, summons, notice or document by U.S . registered mail\nto its address set forth in this Agreement will be effective service of process for any action, suit or proceeding arising out of or relating to this\nAgreement. Each Party hereby also irrevocably and unconditionally (i) waives any objection to the laying of venue of any action, suit or proceeding\narising out of or relating to this Agreement in any such federal and state courts, and (ii) waives and agrees not to plead or claim in any such court that\nsuch action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n18. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be\ninvalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force\nand effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its\nextent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority making that determination shall only\nmodify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all\npurposes of this Agreement.\n19. Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent\nor interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise\nfavoring or disfavoring either Party by virtue of the authorship at any of the provisions of this Agreement.\n20. Term. This Agreement shall terminate two years after the date of this Agreement.\n21. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes\nall prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter (including that certain Mutual\nNondisclosure Agreement, dated November 8, 2011, between JDA Software Group, Inc. and RedPrairie Holding, Inc.).\n22. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together shall be\ndeemed to constitute a single instrument.\n7\nIN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of\nthe date written below.\nREDPRAIRIE HOLDING, INC.\nJDA SOFTWARE GROUP, INC.\nBy:\nLOGO\nBy:\nLOGO\nName: Laura L Fese\nName: David Kennedy\nTitle: Chief Legal Officer\nTitle: Executive Vice President and Chief Legal Officer\nDate: 9/4/12\nDate:\nAddress: 20700 Swenson Drive, Waukesha,WI 53186\nAddress: 14400 N. 87 Street, Scottsdale, AZ 85260-3649\nNEW MOUNTAIN CAPITAL LLC\nBy:\nLOGO\nName: Jack Qian\nTitle: Vice President\nDate:\nAddress: 787 Seventh Avenue, 49 Floor, New York, NY 10019\n8\nth\nth 0fe8eaee697774ac95f9186dd2fc3364.pdf effective_date jurisdiction party term EX-10.1 2 a09-6413_1ex10d1.htm EX-10.1\nExhibit 10.1\nEffective as of February 23, 2009\nKenneth M. Bate\n33 Middle Street\nConcord, MA 01742\nDear Ken:\nEffective immediately prior to the closing of the Merger (as such term is defined in that certain Agreement and Plan of Merger, dated as\nof January 27, 2009, by and among NitroMed, Inc. (“NitroMed”), NTMD Parent Acquisition Corp., NTMD Acquisition Corp., Deerfield Private\nDesign Fund, L.P., Deerfield Private Design International, L.P., Deerfield Special Situations Fund, L.P. and Deerfield Special Situations Fund\nInternational Limited), unless you are earlier terminated for cause, you will be terminated without cause as NitroMed’s President, Chief Executive\nOfficer and Interim Chief Financial Officer. This agreement (the “Agreement”) sets forth the terms pursuant to which you will be terminated\nwithout cause immediately prior to closing of such Merger; the time of such closing is referred to herein as the “Effective Time” and the date of\nsuch closing is referred to herein as the “Effective Date.”\n1. Separation Benefits. Reference is hereby made to that certain Retention Agreement, dated as of January 23, 2007, between you and\nNitroMed, as amended by that certain letter agreement dated as of December 29, 2008, which is attached to this Agreement as Exhibit A and is\nincorporated herein (the “Change in Control Agreement”). In connection with the termination without cause of your employment immediately\nprior to the Effective Time, NitroMed is required to provide you with the benefits set forth in the Change in Control Agreement, including\nwithout limitation the benefits set forth in Section 4.2 thereof.\n2. Other Agreements. You hereby reaffirm your obligations set forth in the NitroMed Inventions and Non-Disclosure Agreement\npreviously executed between NitroMed and you (attached hereto as Exhibit B and incorporated herein by reference). You further agree to abide\nby any and all common law and/or statutory obligations relating to the protection and non-disclosure of NitroMed’s trade secrets and/or\nconfidential and proprietary documents and information.\n3. Release. You hereby acknowledge and agree that by signing this Agreement and accepting the economic benefits set forth in\nparagraph 1 above, you are waiving your right to assert, and releasing NitroMed from, any form of legal claim against NitroMed of any kind\nwhatsoever from the beginning of time through and including the Effective Date. Your waiver and release is intended to bar any form of legal\nclaim, charge, complaint or any other form of action (jointly referred to as “Claims”) against NitroMed seeking any form of relief including,\nwithout limitation, equitable relief (whether declaratory, injunctive or otherwise), the recovery of any damages or any other form of monetary\nrecovery\nwhatsoever (including, without limitation, back pay, front pay, compensatory damages, emotional distress damages, punitive damages, attorneys’\nfees and any other costs) against NitroMed up through and including the Effective Date. You understand that there could be unknown or\nunanticipated Claims resulting from your employment with NitroMed and the termination thereof and agree that such Claims are intended to be,\nand are, included in this waiver and release.\n4. Miscellaneous. This Agreement does not confer any additional benefits upon you that you are not otherwise already entitled to\nreceive pursuant to existing agreements between you and NitroMed, and the benefits set forth in paragraph 2 of this Agreement reflect all of the\nseverance benefits that you are entitled to receive upon termination of your employment at the Effective Time. No variations or modifications\nhereof shall be deemed valid unless reduced to writing and signed by NitroMed and you. This Agreement shall be deemed to have been made in\nthe Commonwealth of Massachusetts and shall take effect as an instrument under seal within the Commonwealth of Massachusetts. The validity,\ninterpretation and performance of this Agreement, and any and all other matters relating to your employment and separation of employment from\nNitroMed, shall be governed by, and construed in accordance with, the internal laws of the Commonwealth of Massachusetts, without giving\neffect to conflict of law principles. Both parties agree that any action, demand, claim or counterclaim relating to (i) your employment and\nseparation of your employment, and (ii) the terms and provisions of this Agreement or to its breach, shall be commenced in the Commonwealth\nof Massachusetts in a court of competent jurisdiction. Both parties further agree that any such action, demand, claim or counterclaim shall be\ntried by a judge alone, and both parties hereby waive and forever renounce the right to a trial before a civil jury. The provisions of this\nAgreement are severable, and if for any reason any part hereof shall be found to be unenforceable, the remaining provisions shall be enforced in\nfull. It is NitroMed’s desire and intent to make certain that you fully understand the provisions and effects of this Agreement. To that end, you\nhave been encouraged and given an opportunity to consult with legal counsel. By executing this Agreement, you are acknowledging that you\nhave been afforded sufficient time to understand the provisions and effects of this Agreement and to consult with legal counsel, that your\nagreements and obligations under this Agreement are made voluntarily, knowingly and without duress and that neither NitroMed nor its agents or\nrepresentatives have made any representations inconsistent with the provisions of this Agreement.\n2\nIf the foregoing correctly sets forth our arrangement, please sign, date and return the enclosed copy of this Agreement to me.\nSincerely,\nNITROMED, INC.\n/s/ Mark Leschly\nMark Leschly\nChairman, Compensation Committee\nSigned and Agreed To:\n/s/ Kenneth M. Bate\nName: Kenneth M. Bate\n3\nExhibit A\nFor a copy of the Retention Agreement, dated as of January 23, 2007, between Kenneth M. Bate and NitroMed, Inc., please see Exhibit 10.2 to\nNitroMed, Inc.’s Current Report on Form 8-K filed with the Securities and Exchange Commission on January 25, 2007.\nFor a copy of the letter amendment to the Retention Agreement, dated as of December 29, 2008, between Kenneth M. Bate and NitroMed, Inc.,\nplease see Exhibit 10.2 to NitroMed, Inc.’s Current Report on Form 8-K filed with the Securities and Exchange Commission on December 31,\n2008.\n4\nExhibit B\nINVENTION AND NON-DISCLOSURE AGREEMENT\nThis Agreement is made between NitroMed, Inc., a Delaware corporation (hereinafter referred to collectively with its subsidiaries as the\n“Company”), and Kenneth M. Bate (“Employee”).\nIn consideration of the employment of the continued employment of the Employee by the Company, the Company and the Employee\nagree as follows:\n1. Proprietary Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, Secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive property of\nthe Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, presses, methods, techniques,\nformulas, compositions compounds, projects, developments, plans, research data, clinical data, financial data, personnel data, computer\nprograms, customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The Employee will\nnot disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any purposes (other\nthan in the performance of his/her duties as an employee of the Company) without written approval by an officer of the company, either during or\nafter his/her employment with the Company, unless and until such Proprietary Information has become public knowledge without fault by the\nEmployee.\n(b) The Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks,\nprogram listings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee\nor others, which shall come into his/her custody or possession, shall be and are the exclusive property of the company to be used by the\nEmployee only in the performance of his/her duties for the company. All such materials or copies thereof and all tangible property of the\ncompany in the custody or possession of the Employee shall be delivered to the Company, upon the earlier of (I) a request by the Company, or\n(ii) termination of his/her employment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such\ntangible property.\n(c) The Employee agrees that his/her obligation not to disclose or to use information and materials of the types set forth in\nparagraphs (a) and (b) above, and his/her obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to\nsuch types of information, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who\nmay have disclosed or entrusted the same to the company or to the Employee.\n5\n2. Developments.\n(a) Inventions, improvements, discoveries, methods, developments, software, and works of authorship, whether patentable or not,\nwhich are created, made, conceived or reduced to practice by him/her or under his/her direction or jointly with others during his/her employment\nby the Company, whether or not during normal working hours or on the premises of the Company (all of which are collectively referred to in this\nAgreement as “Developments”.\n(b) The Employee agrees to assign and does hereby assign to the Company (or) any person or entity designated by the Company)\nall his/her right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.\nHowever, this paragraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and\ndevelopment of the company and which are made and conceived by the Employee not during normal working hours, not on the Company’s\npremises and not using the Company’s tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this\nAgreement shall be construed in accordance with the laws of any state which precludes a requirement in an employee agreement to assign certain\nclasses of inventions made by an employee, this paragraph 2(b) shall be interpreted not to apply to any invention which a court rules and/or the\nCompany agrees falls within such classes. The Employee also hereby waives all claims to moral rights in any Developments.\n(c) The Employee agrees to cooperate fully with the Company, both during and after his/her employment with the Company, with\nrespect to the procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States\nand foreign countries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent\napplications, declarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem\nnecessary or desirable in order to protect its rights and interest in any development. The Employee further agrees that if the Company is unable,\nafter reasonable effort, to secure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to\nexecute any such papers as the agent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints\neach executive officer of the Company as his/her agent and attorney-in-fact to execute any such papers on his/her behalf, and to take any and all\nactions as the Company may deem necessary or desirable in order to protect its rights and interests in any Development, under the conditions\ndescribed in this sentence.\n3. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by\nthe terms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or\nproprietary information in the course of his/her employment with the Company or refrain from competing, directly or indirectly, with the\nbusiness of such previous employer or any other party. The Employee further represents that his/her performance of all the terms of this\nAgreement wand as an employee of the Company does not and will not breach any other agreement to which the Employee is a party including\nbut not limited to any agreement to keep in confidence proprietary information, knowledge or data acquired by the Employee in confidence or in\ntrust prior to his/her employment with the Company, and the Employee will not disclose to the company or induce the Company to use any\nconfidential or proprietary information or material belonging to any previous employer or others.\n6\n4. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions which are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n5. No Employment Contract.\nThe Employee understands that this Agreement does not constitute a contract of employment and does not imply that his/her\nemployment will continue for any period of time.\n6. Miscellaneous.\n(a) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any\nprovision of this Agreement.\n(b) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the\nsubject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in\nwriting signed by the Employee and the Company. The Employee agrees that any change or changes in his/her duties, salary or compensation\nafter the signing of this Agreement shall not affect the validity or scope of this Agreement.\n(c) This Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the\nCompany and its successors and assigns.\n(d) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any\nright. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or\nwaiver of any right on any other occasion.\n(e) The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any\nsubsidiary or affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be resigned at the\ntime of such transfer.\n(f) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the company and\nare considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in addition\nto such other remedies which may be available, shall be entitled to specific performance and other injunctive relief, and employee waives the\nclaim or defense that the Company has an adequate remedy at law. Employee shall not, in any action or proceeding to enforce any of the\nprovisions of this Agreement, assert the claim or defense that such an adequate remedy at law exists.\n(g) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the\nCommonwealth of Massachusetts. Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or\nrelating to any provisions of this\n7\nAgreement shall be commenced only in a court of the Commonwealth of Massachusetts (or, if appropriate, a federal court located within\nMassachusetts), and the Company and the Employee each consents to the jurisdiction of such a court.\n(h) Employee shall disclose the existence of the terms of this Agreement to any employer or other person that Employee may work\nfor or be engaged by after the termination of his or her employment or engagement at the Company. Employee agrees that the Company may,\nafter notification to Employee, provide a copy of this Agreement to any business or enterprise (I) which Employee may directly or indirectly\nown, manage, operate, finance, join, control or participate in the ownership, management, operation, financing, or control of, or (ii) with which\nthe Employee may be connected with as an officer, director, employee, partner, principal, agent, representative, consultant or other wise, or in\nconnection with which Employee may use or permit Employee’s name to be used. Employee to provide the names and addresses of any such\npersons or entities as the company may from time to time request.\n8\nINVENTION AND NON-DISCLOSURE AGREEMENT\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nSigned By:\n/s/ Kenneth M. Bate\nPrinted Name: Kenneth M. Bate\nDate:\n3/23/06\n*Please return signature page only to Human Resources.\n9 EX-10.1 2 a09-6413_1ex10d1.htm EX-10.1\nExhibit 10.1\nEffective as of February 23, 2009\nKenneth M. Bate\n33 Middle Street\nConcord, MA 01742\nDear Ken:\nEffective immediately prior to the closing of the Merger (as such term is defined in that certain Agreement and Plan of Merger, dated as\nof January 27, 2009, by and among NitroMed, Inc. (“NitroMed”), NTMD Parent Acquisition Corp., NTMD Acquisition Corp., Deerfield Private\nDesign Fund, L.P., Deerfield Private Design International, L.P., Deerfield Special Situations Fund, L.P. and Deerfield Special Situations Fund\nInternational Limited), unless you are earlier terminated for cause, you will be terminated without cause as NitroMed’s President, Chief Executive\nOfficer and Interim Chief Financial Officer. This agreement (the “Agreement”) sets forth the terms pursuant to which you will be terminated\nwithout cause immediately prior to closing of such Merger; the time of such closing is referred to herein as the “Effective Time” and the date of\nsuch closing is referred to herein as the “Effective Date.”\n1. Separation Benefits. Reference is hereby made to that certain Retention Agreement, dated as of January 23, 2007, between you and\nNitroMed, as amended by that certain letter agreement dated as of December 29, 2008, which is attached to this Agreement as Exhibit A and is\nincorporated herein (the “Change in Control Agreement”). In connection with the termination without cause of your employment immediately\nprior to the Effective Time, NitroMed is required to provide you with the benefits set forth in the Change in Control Agreement, including\nwithout limitation the benefits set forth in Section 4.2 thereof.\n2. Other Agreements. You hereby reaffirm your obligations set forth in the NitroMed Inventions and Non-Disclosure Agreement\npreviously executed between NitroMed and you (attached hereto as Exhibit B and incorporated herein by reference). You further agree to abide\nby any and all common law and/or statutory obligations relating to the protection and non-disclosure of NitroMed’s trade secrets and/or\nconfidential and proprietary documents and information.\n3. Release. You hereby acknowledge and agree that by signing this Agreement and accepting the economic benefits set forth in\nparagraph 1 above, you are waiving your right to assert, and releasing NitroMed from, any form of legal claim against NitroMed of any kind\nwhatsoever from the beginning of time through and including the Effective Date. Your waiver and release is intended to bar any form of legal\nclaim, charge, complaint or any other form of action (jointly referred to as “Claims”) against NitroMed seeking any form of relief including,\nwithout limitation, equitable relief (whether declaratory, injunctive or otherwise), the recovery of any damages or any other form of monetary\nrecovery\n \nwhatsoever (including, without limitation, back pay, front pay, compensatory damages, emotional distress damages, punitive damages, attorneys’\nfees and any other costs) against NitroMed up through and including the Effective Date. You understand that there could be unknown or\nunanticipated Claims resulting from your employment with NitroMed and the termination thereof and agree that such Claims are intended to be,\nand are, included in this waiver and release.\n4. Miscellaneous. This Agreement does not confer any additional benefits upon you that you are not otherwise already entitled to\nreceive pursuant to existing agreements between you and NitroMed, and the benefits set forth in paragraph 2 of this Agreement reflect all of the\nseverance benefits that you are entitled to receive upon termination of your employment at the Effective Time. No variations or modifications\nhereof shall be deemed valid unless reduced to writing and signed by NitroMed and you. This Agreement shall be deemed to have been made in\nthe Commonwealth of Massachusetts and shall take effect as an instrument under seal within the Commonwealth of Massachusetts. The validity,\ninterpretation and performance of this Agreement, and any and all other matters relating to your employment and separation of employment from\nNitroMed, shall be governed by, and construed in accordance with, the internal laws of the Commonwealth of Massachusetts, without giving\neffect to conflict of law principles. Both parties agree that any action, demand, claim or counterclaim relating to (i) your employment and\nseparation of your employment, and (ii) the terms and provisions of this Agreement or to its breach, shall be commenced in the Commonwealth\nof Massachusetts in a court of competent jurisdiction. Both parties further agree that any such action, demand, claim or counterclaim shall be\ntried by a judge alone, and both parties hereby waive and forever renounce the right to a trial before a civil jury. The provisions of this\nAgreement are severable, and if for any reason any part hereof shall be found to be unenforceable, the remaining provisions shall be enforced in\nfull. Itis NitroMed’s desire and intent to make certain that you fully understand the provisions and effects of this Agreement. To that end, you\nhave been encouraged and given an opportunity to consult with legal counsel. By executing this Agreement, you are acknowledging that you\nhave been afforded sufficient time to understand the provisions and effects of this Agreement and to consult with legal counsel, that your\nagreements and obligations under this Agreement are made voluntarily, knowingly and without duress and that neither NitroMed nor its agents or\nrepresentatives have made any representations inconsistent with the provisions of this Agreement.\n2\n \nIf the foregoing correctly sets forth our arrangement, please sign, date and return the enclosed copy of this Agreement to me.\nSincerely,\nNITROMED, INC.\n/s/ Mark Leschly\nMark Leschly\nChairman, Compensation Committee\nSigned and Agreed To:\n/s/ Kenneth M. Bate\nName: Kenneth M. Bate\n \nExhibit A\nFor a copy of the Retention Agreement, dated as of January 23, 2007, between Kenneth M. Bate and NitroMed, Inc., please see Exhibit 10.2 to\nNitroMed, Inc.’s Current Report on Form 8-K filed with the Securities and Exchange Commission on January 25, 2007.\nFor a copy of the letter amendment to the Retention Agreement, dated as of December 29, 2008, between Kenneth M. Bate and NitroMed, Inc.,\nplease see Exhibit 10.2 to NitroMed, Inc.’s Current Report on Form 8-K filed with the Securities and Exchange Commission on December 31,\n2008.\n \nExhibit B\nINVENTION AND NON-DISCLOSURE AGREEMENT\nThis Agreement is made between NitroMed, Inc., a Delaware corporation (hereinafter referred to collectively with its subsidiaries as the\n“Company”), and Kenneth M. Bate (“Employee™).\nIn consideration of the employment of the continued employment of the Employee by the Company, the Company and the Employee\nagree as follows:\n1. Proprietary Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, Secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information™) is and shall be the exclusive property of\nthe Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, presses, methods, techniques,\nformulas, compositions compounds, projects, developments, plans, research data, clinical data, financial data, personnel data, computer\nprograms, customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The Employee will\nnot disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any purposes (other\nthan in the performance of his/her duties as an employee of the Company) without written approval by an officer of the company, either during or\nafter his/her employment with the Company, unless and until such Proprietary Information has become public knowledge without fault by the\nEmployee.\n(b) The Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks,\nprogram listings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee\nor others, which shall come into his/her custody or possession, shall be and are the exclusive property of the company to be used by the\nEmployee only in the performance of his/her duties for the company. All such materials or copies thereof and all tangible property of the\ncompany in the custody or possession of the Employee shall be delivered to the Company, upon the earlier of (I) a request by the Company, or\n(ii) termination of his/her employment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such\ntangible property.\n(c) The Employee agrees that his/her obligation not to disclose or to use information and materials of the types set forth in\nparagraphs (a) and (b) above, and his/her obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to\nsuch types of information, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who\nmay have disclosed or entrusted the same to the company or to the Employee.\n \n2. Developments.\n(a) Inventions, improvements, discoveries, methods, developments, software, and works of authorship, whether patentable or not,\nwhich are created, made, conceived or reduced to practice by him/her or under his/her direction or jointly with others during his/her employment\nby the Company, whether or not during normal working hours or on the premises of the Company (all of which are collectively referred to in this\nAgreement as “Developments”.\n(b) The Employee agrees to assign and does hereby assign to the Company (or) any person or entity designated by the Company)\nall his/her right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.\nHowever, this paragraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and\ndevelopment of the company and which are made and conceived by the Employee not during normal working hours, not on the Company’s\npremises and not using the Company’s tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this\nAgreement shall be construed in accordance with the laws of any state which precludes a requirement in an employee agreement to assign certain\nclasses of inventions made by an employee, this paragraph 2(b) shall be interpreted not to apply to any invention which a court rules and/or the\nCompany agrees falls within such classes. The Employee also hereby waives all claims to moral rights in any Developments.\n(c) The Employee agrees to cooperate fully with the Company, both during and after his/her employment with the Company, with\nrespect to the procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States\nand foreign countries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent\napplications, declarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem\nnecessary or desirable in order to protect its rights and interest in any development. The Employee further agrees that if the Company is unable,\nafter reasonable effort, to secure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to\nexecute any such papers as the agent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints\neach executive officer of the Company as his/her agent and attorney-in-fact to execute any such papers on his/her behalf, and to take any and all\nactions as the Company may deem necessary or desirable in order to protect its rights and interests in any Development, under the conditions\ndescribed in this sentence.\n3. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by\nthe terms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or\nproprietary information in the course of his/her employment with the Company or refrain from competing, directly or indirectly, with the\nbusiness of such previous employer or any other party. The Employee further represents that his/her performance of all the terms of this\nAgreement wand as an employee of the Company does not and will not breach any other agreement to which the Employee is a party including\nbut not limited to any agreement to keep in confidence proprietary information, knowledge or data acquired by the Employee in confidence or in\ntrust prior to his/her employment with the Company, and the Employee will not disclose to the company or induce the Company to use any\nconfidential or proprietary information or material belonging to any previous employer or others.\n6\n \n4. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions which are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n5. No Employment Contract.\nThe Employee understands that this Agreement does not constitute a contract of employment and does not imply that his/her\nemployment will continue for any period of time.\n6. Miscellaneous.\n(a) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any\nprovision of this Agreement.\n(b) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the\nsubject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in\nwriting signed by the Employee and the Company. The Employee agrees that any change or changes in his/her duties, salary or compensation\nafter the signing of this Agreement shall not affect the validity or scope of this Agreement.\n(c) This Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the\nCompany and its successors and assigns.\n(d) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any\nright. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or\nwaiver of any right on any other occasion.\n(e) The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any\nsubsidiary or affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be resigned at the\ntime of such transfer.\n(f) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the company and\nare considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in addition\nto such other remedies which may be available, shall be entitled to specific performance and other injunctive relief, and employee waives the\nclaim or defense that the Company has an adequate remedy at law. Employee shall not, in any action or proceeding to enforce any of the\nprovisions of this Agreement, assert the claim or defense that such an adequate remedy at law exists.\n(g) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the\nCommonwealth of Massachusetts. Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or\nrelating to any provisions of this\n \nAgreement shall be commenced only in a court of the Commonwealth of Massachusetts (or, if appropriate, a federal court located within\nMassachusetts), and the Company and the Employee each consents to the jurisdiction of such a court.\n(h) Employee shall disclose the existence of the terms of this Agreement to any employer or other person that Employee may work\nfor or be engaged by after the termination of his or her employment or engagement at the Company. Employee agrees that the Company may,\nafter notification to Employee, provide a copy of this Agreement to any business or enterprise (I) which Employee may directly or indirectly\nown, manage, operate, finance, join, control or participate in the ownership, management, operation, financing, or control of, or (ii) with which\nthe Employee may be connected with as an officer, director, employee, partner, principal, agent, representative, consultant or other wise, or in\nconnection with which Employee may use or permit Employee’s name to be used. Employee to provide the names and addresses of any such\npersons or entities as the company may from time to time request.\n \nINVENTION AND NON-DISCLOSURE AGREEMENT\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nSigned By: /s/ Kenneth M. Bate\nPrinted Name: Kenneth M. Bate\nDate: 3/23/06\n*Please return signature page only to Human Resources.\n EX-10.1 2 a09-6413_1ex10d1.htm EX-10.1\nExhibit 10.1\nEffective as of February 23, 2009\nKenneth M. Bate\n33 Middle Street\nConcord, MA 01742\nDear Ken:\nEffective immediately prior to the closing of the Merger (as such term is defined in that certain Agreement and Plan of Merger, dated as\nof\nJanuary 27, 2009, by and among NitroMed, Inc. ("NitroMed"), NTMD Parent Acquisition Corp., NTMD Acquisition Corp., Deerfield Private\nDesign Fund, L.P., Deerfield Private Design International, L.P., Deerfield Special Situations Fund, L.P. and Deerfield Special Situations Fund\nInternational Limited), unless you are earlier terminated for cause, you will be terminated without cause as NitroMed's President, Chief Executive\nOfficer and Interim Chief Financial Officer. This agreement (the "Agreement") sets forth the terms pursuant to which you will be terminated\nwithout cause immediately prior to closing of such Merger; the time of such closing is referred to herein as the "Effective Time" and the date of\nsuch closing is referred to herein as the "Effective Date."\n1. Separation Benefits. Reference is hereby made to that certain Retention Agreement, dated as of January 23, 2007, between you and\nNitroMed, as amended by that certain letter agreement dated as of December 29, 2008, which is attached to this Agreement as Exhibit A and is\nincorporated herein (the "Change in Control Agreement"). In connection with the termination without cause of your employment immediately\nprior to the Effective Time, NitroMed is required to provide you with the benefits set forth in the Change in Control Agreement, including\nwithout limitation the benefits set forth in Section 4.2 thereof.\n2. Other Agreements. You hereby reaffirm your obligations set forth in the NitroMed Inventions and Non-Disclosure Agreement\npreviously executed between NitroMed and you (attached hereto as Exhibit B and incorporated herein by reference). You further agree to abide\nby any and all common law and/or statutory obligations relating to the protection and non-disclosure of NitroMed's trade secrets and/or\nconfidential and proprietary documents and information.\n3. Release. You hereby acknowledge and agree that by signing this Agreement and accepting the economic benefits set forth in\nparagraph 1 above, you are waiving your right to assert, and releasing NitroMed from, any form of legal claim against NitroMed of any kind\nwhatsoever from the beginning of time through and including the Effective Date. Your waiver and release is intended to bar any form of legal\nclaim, charge, complaint or any other form of action (jointly referred to as "Claims") against NitroMed seeking any form of relief including,\nwithout limitation, equitable relief (whether declaratory, injunctive or otherwise), the recovery of any damages or any other form of monetary\nrecovery\nwhatsoever (including, without limitation, back pay, front pay, compensatory damages, emotional distress damages, punitive damages, attorneys'\nfees and any other costs) against NitroMed up through and including the Effective Date. You understand that there could be unknown or\nunanticipated Claims resulting from your employment with NitroMed and the termination thereof and agree that such Claims are intended to be,\nand are, included in this waiver and release.\n4. Miscellaneous. This Agreement does not confer any additional benefits upon you that you are not otherwise already entitled to\nreceive pursuant to existing agreements between you and NitroMed, and the benefits set forth in paragraph 2 of this Agreement reflect all of the\nseverance benefits that you are entitled to receive upon termination of your employment at the Effective Time. No variations or modifications\nhereof\nshall\nbe\ndeemed\nvalid\nunless\nreduced\nto\nwriting\nand\nsigned\nby\nNitroMed\nand\nyou.\nThis\nAgreement\nshall\nbe\ndeemed\nto\nhave\nbeen\nmade\nin\nthe Commonwealth of Massachusetts and shall take effect as an instrument under seal within the Commonwealth of Massachusetts. The validity,\ninterpretation and performance of this Agreement, and any and all other matters relating to your employment and separation of employment from\nNitroMed, shall be governed by, and construed in accordance with, the internal laws of the Commonwealth of Massachusetts, without giving\neffect to conflict of law principles. Both parties agree that any action, demand, claim or counterclaim relating to (i) your employment and\nseparation of your employment, and (ii) the terms and provisions of this Agreement or to its breach, shall be commenced in the Commonwealth\nof Massachusetts in a court of competent jurisdiction. Both parties further agree that any such action, demand, claim or counterclaim shall be\ntried by a judge alone, and both parties hereby waive and forever renounce the right to a trial before a civil jury. The provisions of this\nAgreement are severable, and if for any reason any part hereof shall be found to be unenforceable, the remaining provisions shall be enforced\nin\nfull. It is NitroMed's desire and intent to make certain that you fully understand the provisions and effects of this Agreement. To that end, you\nhave been encouraged and given an opportunity to consult with legal counsel. By executing this Agreement, you are acknowledging that you\nhave been afforded sufficient time to understand the provisions and effects of this Agreement and to consult with legal counsel, that your\nagreements and obligations under this Agreement are made voluntarily, knowingly and without duress and that neither NitroMed nor its agents\nor\nrepresentatives have made any representations inconsistent with the provisions of this Agreement.\n2\nIf the foregoing correctly sets forth our arrangement, please sign, date and return the enclosed copy of this Agreement to me.\nSincerely,\nNITROMED, INC.\n/s/ Mark Leschly\nMark Leschly\nChairman, Compensation Committee\nSigned and Agreed To:\n/s/ Kenneth M. Bate\nName: Kenneth M. Bate\n3\nExhibit A\nFor a copy of the Retention Agreement, dated as of January 23, 2007, between Kenneth M. Bate and NitroMed, Inc., please see Exhibit 10.2 to\nNitroMed, Inc.'s Current Report on Form 8-K filed with the Securities and Exchange Commission on January 25, 2007.\nFor a copy of the letter amendment to the Retention Agreement, dated as of December 29, 2008, between Kenneth M. Bate and NitroMed, Inc.,\nplease see Exhibit 10.2 to NitroMed, Inc.'s Current Report on Form 8-K filed with the Securities and Exchange Commission on December 31,\n2008.\n4\nExhibit B\nINVENTION AND NON-DISCLOSURE AGREEMENT\nThis Agreement is made between NitroMed, Inc., a Delaware corporation (hereinafter referred to collectively with its subsidiaries as the\n"Company"), and Kenneth M. Bate ("Employee").\nIn consideration of the employment of the continued employment of the Employee by the Company, the Company and the Employee\nagree as follows:\n1. Proprietary. Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, Secret or confidential nature concerning the\nCompany's business, business relationships or financial affairs (collectively, "Proprietary Information") is and shall be the exclusive property of\nthe Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, presses, methods, techniques,\nformulas, compositions compounds, projects, developments, plans, research data, clinical data, financia data, personnel data, computer\nprograms, customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The Employee will\nnot disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any purposes (other\nthan in the performance of his/her duties as an employee of the Company) without written approval by an officer of the company, either during or\nafter his/her employment with the Company, unless and until such Proprietary Information has become public knowledge without fault by the\nEmployee.\n(b) The Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks,\nprogram listings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee\nor others, which shall come into his/her custody or possession, shall be and are the exclusive property of the company to be used by the\nEmployee only in the performance of his/her duties for the company. All such materials or copies thereof and all tangible property of the\ncompany in the custody or possession of the Employee shall be delivered to the Company, upon the earlier of (I) a request by the Company, or\n(ii) termination of his/her employment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such\ntangible property.\n(c) The Employee agrees that his/her obligation not to disclose or to use information and materials of the types set forth in\nparagraphs (a) and (b) above, and his/her obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to\nsuch types of information, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who\nmay have disclosed or entrusted the same to the company or to the Employee.\n5\n2. Developments.\n(a) Inventions, improvements, discoveries, methods, developments, software, and works of authorship, whether patentable or not,\nwhich are created, made, conceived or reduced to practice by him/her or under his/her direction or jointly with others during his/her employment\nby the Company, whether or not during normal working hours or on the premises of the Company (all of which are collectively referred to in this\nAgreement as "Developments".\n(b) The Employee agrees to assign and does hereby assign to the Company (or) any person or entity designated by the Company)\nall his/her right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.\nHowever, this paragraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and\ndevelopment of the company and which are made and conceived by the Employee not during normal working hours, not on the Company's\npremises and not using the Company's tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this\nAgreement shall be construed in accordance with the laws of any state which precludes a requirement in an employee agreement to assign certain\nclasses of inventions made by an employee, this paragraph 2(b) shall be interpreted not to apply to any invention which a court rules and/or the\nCompany agrees falls within such classes. The Employee also hereby waives all claims to moral rights in any Developments.\n(c) The Employee agrees to cooperate fully with the Company, both during and after his/her employment with the Company, with\nrespect to the procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States\nand foreign countries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent\napplications, declarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem\nnecessary or desirable in order to protect its rights and interest in any development. The Employee further agrees that if the Company is unable,\nafter reasonable effort, to secure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to\nexecute any such papers as the agent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints\neach executive officer of the Company as his/her agent and attorney-in-fact to execute any such papers on his/her behalf, and to take any and\nall\nactions\nas\nthe\nCompany\nmay\ndeem\nnecessary\nor\ndesirable\nin\norder\nto\nprotect\nits\nrights\nand\ninterests\nin\nany\nDevelopment,\nunder\nthe\nconditions\ndescribed in this sentence.\n3. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by\nthe\nterms\nof\nany\nagreement\nwith\nany\nprevious\nemployer\nor\nother\nparty\nto\nrefrain\nfrom\nusing\nor\ndisclosing\nany\ntrade\nsecret\nor\nconfidential\nor\nproprietary information in the course of his/her employment with the Company or refrain from competing, directly or indirectly, with the\nbusiness of such previous employer or any other party. The Employee further represents that his/her performance of all the terms of this\nAgreement\nwand\nas\nan\nemployee\nof\nthe\nCompany\ndoes\nnot\nand\nwill\nnot\nbreach\nany\nother\nagreement\nto\nwhich\nthe\nEmployee\nis\na\nparty\nincluding\nbut not limited to any agreement to keep in confidence proprietary information, knowledge or data acquired by the Employee in confidence or in\ntrust prior to his/her employment with the Company, and the Employee will not disclose to the company or induce the Company to use any\nconfidentia or proprietary information or material belonging to any previous employer or others.\n6\n4. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions which are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n5.\nNo Employment Contract.\nThe Employee understands that this Agreement does not constitute a contract of employment and does not imply that his/her\nemployment will continue for any period of time.\n6. Miscellaneous.\n(a) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any\nprovision of this Agreement.\n(b) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the\nsubject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in\nwriting signed by the Employee and the Company. The Employee agrees that any change or changes in his/her duties, salary or compensation\nafter the signing of this Agreement shall not affect the validity or scope of this Agreement.\n(c) This Agreement will be binding upon the Employee's heirs, executors and administrators and will inure to the benefit of the\nCompany and its successors and assigns.\n(d) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any\nright. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or\nwaiver of any right on any other occasion.\n(e) The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any\nsubsidiary or affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be resigned at the\ntime of such transfer.\n(f) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the company and\nare considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in addition\nto such other remedies which may be available, shall be entitled to specific performance and other injunctive relief, and employee waives the\nclaim or defense that the Company has an adequate remedy at law. Employee shall not, in any action or proceeding to enforce any of the\nprovisions of this Agreement, assert the claim or defense that such an adequate remedy at law exists.\n(g) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the\nCommonwealth of Massachusetts. Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or\nrelating to any provisions of this\n7\nAgreement shall be commenced only in a court of the Commonwealth of Massachusetts (or, if appropriate, a federal court located within\nMassachusetts), and the Company and the Employee each consents to the jurisdiction of such a court.\n(h) Employee shall disclose the existence of the terms of this Agreement to any employer or other person that Employee may work\nfor or be engaged by after the termination of his or her employment or engagement at the Company. Employee agrees that the Company may,\nafter\nnotification to Employee, provide a copy of this Agreement to any business or enterprise (I) which Employee may directly or indirectly\nown, manage, operate, finance, join, control or participate in the ownership, management, operation, financing, or control of, or (ii) with which\nthe Employee may be connected with as an officer, director, employee, partner, principal, agent, representative, consultant or other wise, or\nin\nconnection with which Employee may use or permit Employee's name to be used. Employee to provide the names and addresses of any such\npersons or entities as the company may from time to time request.\n8\nINVENTION AND NON-DISCLOSURE AGREEMENT\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nSigned By:\n/s/ Kenneth M. Bate\nPrinted Name:\nKenneth M. Bate\nDate:\n3/23/06\n*Please return signature page only to Human Resources.\n9 EX-10.1 2 a09-6413_1ex10d1.htm EX-10.1\nExhibit 10.1\nEffective as of February 23, 2009\nKenneth M. Bate\n33 Middle Street\nConcord, MA 01742\nDear Ken:\nEffective immediately prior to the closing of the Merger (as such term is defined in that certain Agreement and Plan of Merger, dated as\nof January 27, 2009, by and among NitroMed, Inc. (“NitroMed”), NTMD Parent Acquisition Corp., NTMD Acquisition Corp., Deerfield Private\nDesign Fund, L.P., Deerfield Private Design International, L.P., Deerfield Special Situations Fund, L.P. and Deerfield Special Situations Fund\nInternational Limited), unless you are earlier terminated for cause, you will be terminated without cause as NitroMed’s President, Chief Executive\nOfficer and Interim Chief Financial Officer. This agreement (the “Agreement”) sets forth the terms pursuant to which you will be terminated\nwithout cause immediately prior to closing of such Merger; the time of such closing is referred to herein as the “Effective Time” and the date of\nsuch closing is referred to herein as the “Effective Date.”\n1. Separation Benefits. Reference is hereby made to that certain Retention Agreement, dated as of January 23, 2007, between you and\nNitroMed, as amended by that certain letter agreement dated as of December 29, 2008, which is attached to this Agreement as Exhibit A and is\nincorporated herein (the “Change in Control Agreement”). In connection with the termination without cause of your employment immediately\nprior to the Effective Time, NitroMed is required to provide you with the benefits set forth in the Change in Control Agreement, including\nwithout limitation the benefits set forth in Section 4.2 thereof.\n2. Other Agreements. You hereby reaffirm your obligations set forth in the NitroMed Inventions and Non-Disclosure Agreement\npreviously executed between NitroMed and you (attached hereto as Exhibit B and incorporated herein by reference). You further agree to abide\nby any and all common law and/or statutory obligations relating to the protection and non-disclosure of NitroMed’s trade secrets and/or\nconfidential and proprietary documents and information.\n3. Release. You hereby acknowledge and agree that by signing this Agreement and accepting the economic benefits set forth in\nparagraph 1 above, you are waiving your right to assert, and releasing NitroMed from, any form of legal claim against NitroMed of any kind\nwhatsoever from the beginning of time through and including the Effective Date. Your waiver and release is intended to bar any form of legal\nclaim, charge, complaint or any other form of action (jointly referred to as “Claims”) against NitroMed seeking any form of relief including,\nwithout limitation, equitable relief (whether declaratory, injunctive or otherwise), the recovery of any damages or any other form of monetary\nrecovery\nwhatsoever (including, without limitation, back pay, front pay, compensatory damages, emotional distress damages, punitive damages, attorneys’\nfees and any other costs) against NitroMed up through and including the Effective Date. You understand that there could be unknown or\nunanticipated Claims resulting from your employment with NitroMed and the termination thereof and agree that such Claims are intended to be,\nand are, included in this waiver and release.\n4. Miscellaneous. This Agreement does not confer any additional benefits upon you that you are not otherwise already entitled to\nreceive pursuant to existing agreements between you and NitroMed, and the benefits set forth in paragraph 2 of this Agreement reflect all of the\nseverance benefits that you are entitled to receive upon termination of your employment at the Effective Time. No variations or modifications\nhereof shall be deemed valid unless reduced to writing and signed by NitroMed and you. This Agreement shall be deemed to have been made in\nthe Commonwealth of Massachusetts and shall take effect as an instrument under seal within the Commonwealth of Massachusetts. The validity,\ninterpretation and performance of this Agreement, and any and all other matters relating to your employment and separation of employment from\nNitroMed, shall be governed by, and construed in accordance with, the internal laws of the Commonwealth of Massachusetts, without giving\neffect to conflict of law principles. Both parties agree that any action, demand, claim or counterclaim relating to (i) your employment and\nseparation of your employment, and (ii) the terms and provisions of this Agreement or to its breach, shall be commenced in the Commonwealth\nof Massachusetts in a court of competent jurisdiction. Both parties further agree that any such action, demand, claim or counterclaim shall be\ntried by a judge alone, and both parties hereby waive and forever renounce the right to a trial before a civil jury. The provisions of this\nAgreement are severable, and if for any reason any part hereof shall be found to be unenforceable, the remaining provisions shall be enforced in\nfull. It is NitroMed’s desire and intent to make certain that you fully understand the provisions and effects of this Agreement. To that end, you\nhave been encouraged and given an opportunity to consult with legal counsel. By executing this Agreement, you are acknowledging that you\nhave been afforded sufficient time to understand the provisions and effects of this Agreement and to consult with legal counsel, that your\nagreements and obligations under this Agreement are made voluntarily, knowingly and without duress and that neither NitroMed nor its agents or\nrepresentatives have made any representations inconsistent with the provisions of this Agreement.\n2\nIf the foregoing correctly sets forth our arrangement, please sign, date and return the enclosed copy of this Agreement to me.\nSincerely,\nNITROMED, INC.\n/s/ Mark Leschly\nMark Leschly\nChairman, Compensation Committee\nSigned and Agreed To:\n/s/ Kenneth M. Bate\nName: Kenneth M. Bate\n3\nExhibit A\nFor a copy of the Retention Agreement, dated as of January 23, 2007, between Kenneth M. Bate and NitroMed, Inc., please see Exhibit 10.2 to\nNitroMed, Inc.’s Current Report on Form 8-K filed with the Securities and Exchange Commission on January 25, 2007.\nFor a copy of the letter amendment to the Retention Agreement, dated as of December 29, 2008, between Kenneth M. Bate and NitroMed, Inc.,\nplease see Exhibit 10.2 to NitroMed, Inc.’s Current Report on Form 8-K filed with the Securities and Exchange Commission on December 31,\n2008.\n4\nExhibit B\nINVENTION AND NON-DISCLOSURE AGREEMENT\nThis Agreement is made between NitroMed, Inc., a Delaware corporation (hereinafter referred to collectively with its subsidiaries as the\n“Company”), and Kenneth M. Bate (“Employee”).\nIn consideration of the employment of the continued employment of the Employee by the Company, the Company and the Employee\nagree as follows:\n1. Proprietary Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, Secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive property of\nthe Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, presses, methods, techniques,\nformulas, compositions compounds, projects, developments, plans, research data, clinical data, financial data, personnel data, computer\nprograms, customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The Employee will\nnot disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any purposes (other\nthan in the performance of his/her duties as an employee of the Company) without written approval by an officer of the company, either during or\nafter his/her employment with the Company, unless and until such Proprietary Information has become public knowledge without fault by the\nEmployee.\n(b) The Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks,\nprogram listings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee\nor others, which shall come into his/her custody or possession, shall be and are the exclusive property of the company to be used by the\nEmployee only in the performance of his/her duties for the company. All such materials or copies thereof and all tangible property of the\ncompany in the custody or possession of the Employee shall be delivered to the Company, upon the earlier of (I) a request by the Company, or\n(ii) termination of his/her employment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such\ntangible property.\n(c) The Employee agrees that his/her obligation not to disclose or to use information and materials of the types set forth in\nparagraphs (a) and (b) above, and his/her obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to\nsuch types of information, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who\nmay have disclosed or entrusted the same to the company or to the Employee.\n5\n2. Developments.\n(a) Inventions, improvements, discoveries, methods, developments, software, and works of authorship, whether patentable or not,\nwhich are created, made, conceived or reduced to practice by him/her or under his/her direction or jointly with others during his/her employment\nby the Company, whether or not during normal working hours or on the premises of the Company (all of which are collectively referred to in this\nAgreement as “Developments”.\n(b) The Employee agrees to assign and does hereby assign to the Company (or) any person or entity designated by the Company)\nall his/her right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.\nHowever, this paragraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and\ndevelopment of the company and which are made and conceived by the Employee not during normal working hours, not on the Company’s\npremises and not using the Company’s tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this\nAgreement shall be construed in accordance with the laws of any state which precludes a requirement in an employee agreement to assign certain\nclasses of inventions made by an employee, this paragraph 2(b) shall be interpreted not to apply to any invention which a court rules and/or the\nCompany agrees falls within such classes. The Employee also hereby waives all claims to moral rights in any Developments.\n(c) The Employee agrees to cooperate fully with the Company, both during and after his/her employment with the Company, with\nrespect to the procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States\nand foreign countries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent\napplications, declarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem\nnecessary or desirable in order to protect its rights and interest in any development. The Employee further agrees that if the Company is unable,\nafter reasonable effort, to secure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to\nexecute any such papers as the agent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints\neach executive officer of the Company as his/her agent and attorney-in-fact to execute any such papers on his/her behalf, and to take any and all\nactions as the Company may deem necessary or desirable in order to protect its rights and interests in any Development, under the conditions\ndescribed in this sentence.\n3. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by\nthe terms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or\nproprietary information in the course of his/her employment with the Company or refrain from competing, directly or indirectly, with the\nbusiness of such previous employer or any other party. The Employee further represents that his/her performance of all the terms of this\nAgreement wand as an employee of the Company does not and will not breach any other agreement to which the Employee is a party including\nbut not limited to any agreement to keep in confidence proprietary information, knowledge or data acquired by the Employee in confidence or in\ntrust prior to his/her employment with the Company, and the Employee will not disclose to the company or induce the Company to use any\nconfidential or proprietary information or material belonging to any previous employer or others.\n6\n4. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions which are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n5. No Employment Contract.\nThe Employee understands that this Agreement does not constitute a contract of employment and does not imply that his/her\nemployment will continue for any period of time.\n6. Miscellaneous.\n(a) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any\nprovision of this Agreement.\n(b) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the\nsubject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in\nwriting signed by the Employee and the Company. The Employee agrees that any change or changes in his/her duties, salary or compensation\nafter the signing of this Agreement shall not affect the validity or scope of this Agreement.\n(c) This Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the\nCompany and its successors and assigns.\n(d) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any\nright. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or\nwaiver of any right on any other occasion.\n(e) The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any\nsubsidiary or affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be resigned at the\ntime of such transfer.\n(f) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the company and\nare considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in addition\nto such other remedies which may be available, shall be entitled to specific performance and other injunctive relief, and employee waives the\nclaim or defense that the Company has an adequate remedy at law. Employee shall not, in any action or proceeding to enforce any of the\nprovisions of this Agreement, assert the claim or defense that such an adequate remedy at law exists.\n(g) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the\nCommonwealth of Massachusetts. Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or\nrelating to any provisions of this\n7\nAgreement shall be commenced only in a court of the Commonwealth of Massachusetts (or, if appropriate, a federal court located within\nMassachusetts), and the Company and the Employee each consents to the jurisdiction of such a court.\n(h) Employee shall disclose the existence of the terms of this Agreement to any employer or other person that Employee may work\nfor or be engaged by after the termination of his or her employment or engagement at the Company. Employee agrees that the Company may,\nafter notification to Employee, provide a copy of this Agreement to any business or enterprise (I) which Employee may directly or indirectly\nown, manage, operate, finance, join, control or participate in the ownership, management, operation, financing, or control of, or (ii) with which\nthe Employee may be connected with as an officer, director, employee, partner, principal, agent, representative, consultant or other wise, or in\nconnection with which Employee may use or permit Employee’s name to be used. Employee to provide the names and addresses of any such\npersons or entities as the company may from time to time request.\n8\nINVENTION AND NON-DISCLOSURE AGREEMENT\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nSigned By:\n/s/ Kenneth M. Bate\nPrinted Name: Kenneth M. Bate\nDate:\n3/23/06\n*Please return signature page only to Human Resources.\n9 11d0a5b1f6e460c7033d57661026d00c.pdf effective_date jurisdiction party term EX-99.(D)(3) 8 d901048dex99d3.htm CONFIDENTIALITY AGREEMENT BY AND BETWEEN AUSPEX AND\nTEVA, DATED MARCH 1, 2015\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of March 1, 2015 between AUSPEX\nPHARMACEUTICALS, located at 3333 North Torrey Pines Court, Suite 400, La Jolla, CA 92037 (“Company”), and TEVA\nPHARMACEUTICAL INDUSTRIES, LTD., with a principal place of business at 5 Basel Street, Petach Tikva 4951033, Israel (“TEVA”).\nIn order to facilitate the consideration and negotiation of a possible negotiated transaction involving Company and Teva (referred to\ncollectively as the “Parties” and individually as a “Party”), each Party has either requested or may request access to certain non-public\ninformation regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in\nthis Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to in this Agreement as the\n“Recipient”.) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various\nrelated matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 4 below, neither the Recipient nor any of the\nRecipient’s Representatives (as defined in Section 14 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider ’s Confidential Information (as defined in Section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider ‘s Confidential Information to any other Person (as defined in Section 14 below).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct\non the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nactions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential\nInformation.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential\nInformation must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A or any investment banks or outside\nlegal counsel retained by the Provider in connection with the possible transaction (the “Provider Contact Person”). Neither the Recipient nor any\nof the Recipient ‘s Representatives will contact or otherwise communicate with any other Representative or employee of the Provider in\nconnection with a possible transaction without the prior written authorization of the Provider Contact Person.\n3. No Representations by Provider. The Provider Contact Person will have the exclusive authority to decide what Confidential\nInformation (if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of the\nProvider ’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the\nRecipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously\nfurnished. Neither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the\naccuracy or completeness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any\nliability to the Recipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United\nStates federal or state securities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any\ninaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive\nwritten agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the\nParties (a “Definitive Agreement”) will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient’s disclosure thereof;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping\nthe Recipient evaluate or negotiate a possible negotiated transaction between the Parties, and (B) has been provided with a copy of\nthis Agreement and has agreed to abide and be bound by the provisions hereof or is otherwise bound by confidentiality obligations at\nleast as restrictive as those contained in this Agreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process.\n(b) If prior to providing certain Confidential Information to the Recipient, the Provider delivers to the Recipient a written notice\nstating that such Confidential Information of the Provider may be disclosed only to specified Representatives of the Recipient, then,\nnotwithstanding anything to the contrary contained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the\ndisclosure of any of such Confidential Information to any other Representative of the Recipient.\n(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other\nvalid legal process to disclose any of the Provider ’s Confidential Information to any Person, then the Recipient will promptly provide the\nProvider with written notice of the applicable law, regulation or\n2\nprocess so that the Provider may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate\nfully with the Provider and the Provider’s Representatives in any attempt by the Provider to obtain any such protective order or other\nremedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any\nrequirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such Confidential\nInformation to the extent legally required.\n5. Return of Confidential Information. Upon the Provider ’s request, the Recipient and the Recipient’s Representatives will promptly\ndeliver to the Provider any of the Provider ’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of\nthe Recipient’s Representatives; provided, however, that, in lieu of delivering to the Provider any written materials containing Confidential\nInformation of the Provider, the Recipient may destroy such written materials and deliver to the Provider a certificate confirming their\ndestruction provided further, that the Recipient may retain one copy of such Confidential Information for archival purposes. Notwithstanding the\ndelivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant to this Section 5, the Recipient\nand its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement.\n6. Standstill Provision. During the period commencing today and ending on the first anniversary of the date of this Agreement, or if the\nCompany enters into any confidentiality agreement with another party within the next 45 days with a standstill period of less than 12 months then\nending on the earlier standstill ending date specified in such confidentiality agreement (the “Standstill Period”), neither Teva nor any of Teva’s\nRepresentatives on behalf of Teva will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Company or any\nsecurities (including derivatives thereof) of any subsidiary or other affiliate of Company, (ii) any acquisition of any assets of Company or\nany assets of any subsidiary, division or other affiliate of Company, (iii) any tender offer, exchange offer, merger, business combination,\nrecapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Company or any subsidiary or other affiliate\nof Company or involving any securities or assets of Company or any securities or assets of any subsidiary, division or other affiliate of\nCompany, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents with respect to any securities of Company;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934, as amended, and the rules promulgated\nthereunder) with respect to the beneficial ownership of any securities of Company or any subsidiary or division of Company;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Company;\n3\n(d) take any action that might require Company to make a public announcement regarding any of the types of matters set forth in\nclause “(a)” of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a)”, “(b)”,\n“(c)” or “(d)” of this sentence;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of\nthis sentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) request or propose that Company or any of Company’s Representatives amend, waive or consider the amendment or waiver of\nany provision set forth in this Section 6.\nNothing in this Agreement will prevent Teva or its Representatives from communicating with the Chief Executive Officer of Company to make a\nproposal for or to negotiate with Company in respect of a tender or exchange offer, merger or other business combination, or any other of the\ntransactions described in Section 6(a)(i) involving Company and Teva so long as such communication is made confidentially and does not\nrequire public disclosure. Following the end of the Standstill Period, nothing in this Agreement (including the prohibitions on use and disclosure\nset forth in Sections 1 and 4 hereof) shall, directly or indirectly, prevent or otherwise limit Teva and its Representatives from taking any actions\nreferred to in clauses (a)-(h) of this Section 6 or related thereto, and in each case without notice to or consultation with Company. The expiration\nof the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement. Furthermore, if at any time prior to\nthe end of the Standstill Period (i) a third party commences a tender offer for at least fifty percent (50%) of Company’s outstanding common\nstock that the Board of Directors of Company recommends, or (ii) a third party enters into an agreement with Company contemplating the\nacquisition (by way of merger, tender offer, or otherwise) of at least fifty percent (50%) of the outstanding common stock of Company, the\nrestrictions set forth in this Section 6 shall immediately terminate and cease to be of any further force or effect.\n7. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter\ninto any such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it\ndeems appropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such\nprocess without giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s\nRepresentatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any\ntime. Each Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after\nthe date of this Agreement:\n4\n(i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested\nparty; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or\nrelating to any transaction or proposed transaction involving the other Party.\n8. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this\nAgreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or\nfuture exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived\nor amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the\nparticular provision or provisions being waived or amended.\n9. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such\nParty or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach.\nAccordingly, each Party will also be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach\nor threatened breach of this Agreement by the other Party or any of the other Party’s Representatives. The equitable remedies referred to above\nwill not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at\nlaw or in equity to the Parties. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either\nParty or any of its Representatives has breached this Agreement, such Party will be liable for, and will pay to the other Party and the other Party’s\nRepresentatives, the reasonable legal fees incurred by the other Party and the other Party’s Representatives in connection with such litigation\n(including any appeal relating thereto).\n10. Trading in Securities. The Recipient acknowledges and agrees that it is aware (and that the Recipient’s Representatives are aware or\nwill be advised by the Recipient) that Confidential Information being furnished by the Provider may contain material, non-public information\nregarding the Provider and that the United States securities laws prohibit any Person who has such material, non-public information from\npurchasing or selling securities of the Provider on the basis of such information or from communicating such information to any Person under\ncircumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such securities on the basis of such information.\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of\neach Party and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in\naccordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and\nunconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware purposes of any action,\nsuit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S.\nregistered mail to the address set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any\nsuch action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any\naction, suit or proceeding\n5\narising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and unconditionally\nwaives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out\nof or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient\nforum.\n12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only\nthe following:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget,\nforecast or projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other\naffiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has at\nany time been made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative\nof the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or\nhas been prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or\nindirectly upon any information of the type referred to in clause “(a)” of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and\nthe proposed terms of any such transaction. However, the Provider ’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure\nof any of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of\nthe Recipient’s Representatives by or on behalf of the Provider or any of the Provider ’s Representatives, provided that the source of\nsuch information was not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to\nthe Provider or to any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non- confidential basis from a source other than the Provider\nor any of the Provider’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or\nother obligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n6\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential\nInformation and without reference to or use of Confidential Information.\n13. Co-Bidders and Financing Sources. Without limiting anything in this Agreement, Teva agrees that it will not directly or indirectly\n(i) approach or team, co-venture, club or otherwise partner with any person or firm that may be interested in participating in a transaction with\nCompany as a principal, co-investor, co- bidder or financing source or (ii) engage in any discussions which might lead to, or enter into, any\nagreement, arrangement or understanding with any such person or firm; provided, however, that subject to the written pre-approval of the\nCompany and subject to Section 14(a) below, Teva may contact and/or utilize pre-approved debt financing sources in connection with the\npotential negotiated transaction between the Parties.\n14. Miscellaneous.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a\nsubsidiary of such Party, (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of\nany of such Party’s subsidiaries (excluding any affiliated portfolio companies) or (iii) only upon prior written approval of Company, a\npotential debt financing source to be used by Teva in connection with a potential negotiated transaction between the Parties, provided that\nany debt financing source enters into a confidentiality agreement with Teva that include obligations relating to Company ‘s Confidential\nInformation, securities and employees that are at least as restrictive as the obligations in this Agreement (and providing that Company shall\nbe a third party beneficiary thereof).\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation,\npartnership, entity, group, tribunal or governmental authority.\n(c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in\nany other situation or in any other jurisdiction.\n(e) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the\nProvider is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any\npatent, trade secret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s\nRepresentatives shall file any patent application containing any claim to any subject matter derived from the Confidential Information of\nthe Provider.\n7\n(f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending,\nthreatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a\ncommonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and\nthat it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to,\nand shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any\nof such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine.\nAccordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other\napplicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense\ndoctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such\nprivileges or doctrines.\n(g) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(h) This Agreement shall continue in full force and effect for a period of three years from the effective date of this Agreement. This\nAgreement may be terminated by either party at any time upon thirty (30) days written notice to the other party. The termination of this\nAgreement shall not relieve the Recipient of the obligations imposed by Sections 1, 4, 5, 8 through 14 inclusive of this Agreement which\nshall survive any such termination and continue for a period of three years from the date of execution of this Agreement or relieve Teva of\nits obligations under Section 6 of this Agreement. Nothing herein is intended to limit or abridge the protection of trade secrets under\napplicable trade secrets law, and the protection of trade secrets by the Recipient shall be maintained as such until they fall into the public\ndomain.\n(i) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any\nproducts utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or\nregulations.\n(j) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related\nhereto, including legal notices, shall be in the English language only.\n8\n(k) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic\ntransaction or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.\nThe parties have caused this Agreement to be executed as of March 1, 2015.\nAUSPEX PHARMACEUTICALS\nTEVA PHARMACEUTICAL INDUSTRIES, LTD.\nBy: /s/ Bharatt Chowrira\nBy:\n/s/ Keren Haruvi\nName: Bharatt Chowrira\nName: Keren Haruvi, VP\nTitle: COO\nTitle:\nHead of Global M&A and Transactional Analytics\nAddress:\n3333 North Torrey Pines Court\nSuite 400\nLa Jolla, CA 92037\nUSA\nContact: President & CEO\nBy:\n/s/ Amir Menis\nName: Amir Menis\nTitle:\nAnalyst, BD\nAddress:\n5 Basel Street\nPetach Tikva 4951033\nIsrael\nContact: Keren Haruvi\n9\nEXHIBIT A\nPROVIDER CONTACT PERSONS\nCOMPANY:\nPratik Shah, President and Chief Executive Officer\nBharatt Chowrira, Chief Operating Officer\nJohn Schmid, Chief Financial Officer\nTEVA:\nKeren Haruvi Snir, SVP, M&A\n10 EX-99.(D)(3) 8 d901048dex99d3.htm CONFIDENTIALITY AGREEMENT BY AND BETWEEN AUSPEX AND\nTEVA, DATED MARCH 1, 2015\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of March 1, 2015 between AUSPEX\nPHARMACEUTICALS, located at 3333 North Torrey Pines Court, Suite 400, La Jolla, CA 92037 (“Company”), and TEVA\nPHARMACEUTICAL INDUSTRIES, LTD., with a principal place of business at 5 Basel Street, Petach Tikva 4951033, Israel (“TEVA™).\nIn order to facilitate the consideration and negotiation of a possible negotiated transaction involving Company and Teva (referred to\ncollectively as the “Parties” and individually as a “Party”), each Party has either requested or may request access to certain non-public\ninformation regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in\nthis Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to in this Agreement as the\n“Recipient”.) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various\nrelated matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 4 below, neither the Recipient nor any of the\nRecipient’s Representatives (as defined in Section 14 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider ‘s Confidential Information to any other Person (as defined in Section 14 below).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct\non the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nactions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential\nInformation.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential\nInformation must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A or any investment banks or outside\nlegal counsel retained by the Provider in connection with the possible transaction (the “Provider Contact Person”). Neither the Recipient nor any\nof the Recipient ‘s Representatives will contact or otherwise communicate with any other Representative or employee of the Provider in\nconnection with a possible transaction without the prior written authorization of the Provider Contact Person.\n3. No Representations by Provider. The Provider Contact Person will have the exclusive authority to decide what Confidential\nInformation (if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of the\nProvider’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the\nRecipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously\nfurnished. Neither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the\naccuracy or completeness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any\nliability to the Recipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United\nStates federal or state securities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any\ninaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive\nwritten agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the\nParties (a “Definitive Agreement”) will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient’s disclosure thereof;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping\nthe Recipient evaluate or negotiate a possible negotiated transaction between the Parties, and (B) has been provided with a copy of\nthis Agreement and has agreed to abide and be bound by the provisions hereof or is otherwise bound by confidentiality obligations at\nleast as restrictive as those contained in this Agreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process.\n(b) If prior to providing certain Confidential Information to the Recipient, the Provider delivers to the Recipient a written notice\nstating that such Confidential Information of the Provider may be disclosed only to specified Representatives of the Recipient, then,\nnotwithstanding anything to the contrary contained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the\ndisclosure of any of such Confidential Information to any other Representative of the Recipient.\n(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other\nvalid legal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the\nProvider with written notice of the applicable law, regulation or\nprocess so that the Provider may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate\nfully with the Provider and the Provider’s Representatives in any attempt by the Provider to obtain any such protective order or other\nremedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any\nrequirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such Confidential\nInformation to the extent legally required.\n5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly\ndeliver to the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of\nthe Recipient’s Representatives; provided, however, that, in lieu of delivering to the Provider any written materials containing Confidential\nInformation of the Provider, the Recipient may destroy such written materials and deliver to the Provider a certificate confirming their\ndestruction provided further, that the Recipient may retain one copy of such Confidential Information for archival purposes. Notwithstanding the\ndelivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant to this Section 5, the Recipient\nand its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement.\n6. Standstill Provision. During the period commencing today and ending on the first anniversary of the date of this Agreement, or if the\nCompany enters into any confidentiality agreement with another party within the next 45 days with a standstill period of less than 12 months then\nending on the earlier standstill ending date specified in such confidentiality agreement (the “Standstill Period”), neither Teva nor any of Teva’s\nRepresentatives on behalf of Teva will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Company or any\nsecurities (including derivatives thereof) of any subsidiary or other affiliate of Company, (ii) any acquisition of any assets of Company or\nany assets of any subsidiary, division or other affiliate of Company, (iii) any tender offer, exchange offer, merger, business combination,\nrecapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Company or any subsidiary or other affiliate\nof Company or involving any securities or assets of Company or any securities or assets of any subsidiary, division or other affiliate of\nCompany, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents with respect to any securities of Company;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934, as amended, and the rules promulgated\nthereunder) with respect to the beneficial ownership of any securities of Company or any subsidiary or division of Company;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Company;\n3\n(d) take any action that might require Company to make a public announcement regarding any of the types of matters set forth in\nclause “(a)” of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a)”, “(b)”,\n“(c)” or “(d)” of this sentence;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of\nthis sentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) request or propose that Company or any of Company’s Representatives amend, waive or consider the amendment or waiver of\nany provision set forth in this Section 6.\nNothing in this Agreement will prevent Teva or its Representatives from communicating with the Chief Executive Officer of Company to make a\nproposal for or to negotiate with Company in respect of a tender or exchange offer, merger or other business combination, or any other of the\ntransactions described in Section 6(a)(i) involving Company and Teva so long as such communication is made confidentially and does not\nrequire public disclosure. Following the end of the Standstill Period, nothing in this Agreement (including the prohibitions on use and disclosure\nset forth in Sections 1 and 4 hereof) shall, directly or indirectly, prevent or otherwise limit Teva and its Representatives from taking any actions\nreferred to in clauses (a)-(h) of this Section 6 or related thereto, and in each case without notice to or consultation with Company. The expiration\nof the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement. Furthermore, if at any time prior to\nthe end of the Standstill Period (i) a third party commences a tender offer for at least fifty percent (50%) of Company’s outstanding common\nstock that the Board of Directors of Company recommends, or (ii) a third party enters into an agreement with Company contemplating the\nacquisition (by way of merger, tender offer, or otherwise) of at least fifty percent (50%) of the outstanding common stock of Company, the\nrestrictions set forth in this Section 6 shall immediately terminate and cease to be of any further force or effect.\n7. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter\ninto any such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it\ndeems appropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such\nprocess without giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s\nRepresentatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any\ntime. Each Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after\nthe date of this Agreement:\n(i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested\nparty; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or\nrelating to any transaction or proposed transaction involving the other Party.\n8. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this\nAgreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or\nfuture exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived\nor amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the\nparticular provision or provisions being waived or amended.\n9. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such\nParty or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach.\nAccordingly, each Party will also be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach\nor threatened breach of this Agreement by the other Party or any of the other Party’s Representatives. The equitable remedies referred to above\nwill not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at\nlaw or in equity to the Parties. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either\nParty or any of its Representatives has breached this Agreement, such Party will be liable for, and will pay to the other Party and the other Party’s\nRepresentatives, the reasonable legal fees incurred by the other Party and the other Party’s Representatives in connection with such litigation\n(including any appeal relating thereto).\n10. Trading in Securities. The Recipient acknowledges and agrees that it is aware (and that the Recipient’s Representatives are aware or\nwill be advised by the Recipient) that Confidential Information being furnished by the Provider may contain material, non-public information\nregarding the Provider and that the United States securities laws prohibit any Person who has such material, non-public information from\npurchasing or selling securities of the Provider on the basis of such information or from communicating such information to any Person under\ncircumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such securities on the basis of such information.\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of\neach Party and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in\naccordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and\nunconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware purposes of any action,\nsuit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S.\nregistered mail to the address set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any\nsuch action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any\naction, suit or proceeding\narising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and unconditionally\nwaives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out\nof or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient\nforum.\n12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only\nthe following:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget,\nforecast or projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other\naffiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has at\nany time been made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative\nof the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or\nhas been prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or\nindirectly upon any information of the type referred to in clause “(a)” of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and\nthe proposed terms of any such transaction. However, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure\nof any of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of\nthe Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of\nsuch information was not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to\nthe Provider or to any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non- confidential basis from a source other than the Provider\nor any of the Provider’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or\nother obligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n6\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential\nInformation and without reference to or use of Confidential Information.\n13. Co-Bidders and Financing Sources. Without limiting anything in this Agreement, Teva agrees that it will not directly or indirectly\n(i) approach or team, co-venture, club or otherwise partner with any person or firm that may be interested in participating in a transaction with\nCompany as a principal, co-investor, co- bidder or financing source or (ii) engage in any discussions which might lead to, or enter into, any\nagreement, arrangement or understanding with any such person or firm; provided, however, that subject to the written pre-approval of the\nCompany and subject to Section 14(a) below, Teva may contact and/or utilize pre-approved debt financing sources in connection with the\npotential negotiated transaction between the Parties.\n14. Miscellaneous.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a\nsubsidiary of such Party, (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of\nany of such Party’s subsidiaries (excluding any affiliated portfolio companies) or (iii) only upon prior written approval of Company, a\npotential debt financing source to be used by Teva in connection with a potential negotiated transaction between the Parties, provided that\nany debt financing source enters into a confidentiality agreement with Teva that include obligations relating to Company ‘s Confidential\nInformation, securities and employees that are at least as restrictive as the obligations in this Agreement (and providing that Company shall\nbe a third party beneficiary thereof).\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation,\npartnership, entity, group, tribunal or governmental authority.\n(c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in\nany other situation or in any other jurisdiction.\n(e) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the\nProvider is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any\npatent, trade secret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s\nRepresentatives shall file any patent application containing any claim to any subject matter derived from the Confidential Information of\nthe Provider.\n(f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending,\nthreatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a\ncommonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and\nthat it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to,\nand shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any\nof such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine.\nAccordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other\napplicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense\ndoctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such\nprivileges or doctrines.\n(g) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(h) This Agreement shall continue in full force and effect for a period of three years from the effective date of this Agreement. This\nAgreement may be terminated by either party at any time upon thirty (30) days written notice to the other party. The termination of this\nAgreement shall not relieve the Recipient of the obligations imposed by Sections 1, 4, 5, 8 through 14 inclusive of this Agreement which\nshall survive any such termination and continue for a period of three years from the date of execution of this Agreement or relieve Teva of\nits obligations under Section 6 of this Agreement. Nothing herein is intended to limit or abridge the protection of trade secrets under\napplicable trade secrets law, and the protection of trade secrets by the Recipient shall be maintained as such until they fall into the public\ndomain.\n(i) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any\nproducts utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or\nregulations.\n(j) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related\nhereto, including legal notices, shall be in the English language only.\n8\n(k) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transaction or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement. The parties have caused this Agreement to be executed as of March 1, 2015. AUSPEX PHARMACEUTICALS\nBy: /s/ Bharatt Chowrira\nName: Bharatt Chowrira\nTitle: COO\nAddress:\n3333 North Torrey Pines Court\nSuite 400\nLa Jolla, CA 92037\nUSA\nContact: President & CEO\nTEVA PHARMACEUTICAL INDUSTRIES, LTD.\nBy: /s/ Keren Haruvi\nName: Keren Haruvi, VP\nTitle: Head of Global M&A and Transactional Analytics\nBy: /s/ Amir Menis\nName: Amir Menis\nTitle: Analyst, BD\nAddress:\n5 Basel Street\nPetach Tikva 4951033\nIsrael\nContact: Keren Haruvi\nEXHIBIT A\nPROVIDER CONTACT PERSONS\nCOMPANY:\nPratik Shah, President and Chief Executive Officer\nBharatt Chowrira, Chief Operating Officer\nJohn Schmid, Chief Financial Officer\nTEVA:\nKeren Haruvi Snir, SVP, M&A\n10 EX-99.(D)(3) 8 d901048dex99d3.htm CONFIDENTIALITY AGREEMENT BY AND BETWEEN AUSPEX AND\nTEVA, DATED MARCH 1, 2015\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT ("Agreement") is being entered into as of March 1, 2015 between AUSPEX\nPHARMACEUTICALS, located at 3333 North Torrey Pines Court, Suite 400, La Jolla, CA 92037 ("Company"), and TEVA\nPHARMACEUTICAL INDUSTRIES, LTD., with a principal place of business at 5 Basel Street, Petach Tikva 4951033, Israel ("TEVA").\nIn\norder to facilitate the consideration and negotiation of a possible negotiated transaction involving Company and Teva (referred to\ncollectively as the "Parties" and individually as a "Party"), each Party has either requested or may request access to certain non-public\ninformation regarding the other Party and the other Party's subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in\nthis Agreement as the "Provider"; and each Party, in its capacity as a recipient of information, is referred to in this Agreement as the\n"Recipient".) This Agreement sets forth the Parties' obligations regarding the use and disclosure of such information and regarding various\nrelated matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 4 below, neither the Recipient nor any of the\nRecipient's Representatives (as defined in Section 14 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider's Confidential Information (as defined in Section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider 's Confidential Information to any other Person (as defined in Section 14 below).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct\non\nthe part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense)\ntake\nall\nactions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider's Confidential\nInformation.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider's Confidential\nInformation must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A or any investment banks or outside\nlegal counsel retained by the Provider in connection with the possible transaction (the "Provider Contact Person"). Neither the Recipient nor any\nof the Recipient 's Representatives will contact or otherwise communicate with any other Representative or employee of the Provider in\nconnection with a possible transaction without the prior written authorization of the Provider Contact Person.\n3. No Representations by Provider. The Provider Contact Person will have the exclusive authority to decide what Confidential\nInformation (if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of the\nProvider's Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the\nRecipient or any of the Recipient's Representatives or to supplement or update any Confidential Information of the Provider previously\nfurnished. Neither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to\nthe\naccuracy or completeness of any of the Provider's Confidential Information, and neither the Provider nor any of its Representatives will have any\nliability to the Recipient or to any of the Recipient's Representatives on any basis (including, without limitation, in contract, tort or under United\nStates federal or state securities laws or otherwise) relating to or resulting from the use of any of the Provider's Confidential Information or any\ninaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive\nwritten agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the\nParties (a "Definitive Agreement") will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient's disclosure thereof;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping\nthe Recipient evaluate or negotiate a possible negotiated transaction between the Parties, and (B) has been provided with a copy of\nthis Agreement and has agreed to abide and be bound by the provisions hereof or is otherwise bound by confidentiality obligations at\nleast as restrictive as those contained in this Agreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process.\n(b) If prior to providing certain Confidential Information to the Recipient, the Provider delivers to the Recipient a written notice\nstating that such Confidential Information of the Provider may be disclosed only to specified Representatives of the Recipient, then,\nnotwithstanding anything to the contrary contained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the\ndisclosure of any of such Confidential Information to any other Representative of the Recipient.\n(c) If the Recipient or any of the Recipient's Representatives is required by law or governmental regulation or by subpoena or other\nvalid legal process to disclose any of the Provider's Confidential Information to any Person, then the Recipient will promptly provide the\nProvider with written notice of the applicable law, regulation or\n2\nprocess so that the Provider may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate\nfully with the Provider and the Provider's Representatives in any attempt by the Provider to obtain any such protective order or other\nremedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any\nrequirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such Confidential\nInformation to the extent legally required.\n5.\nReturn of Confidential Information. Upon the Provider's request, the Recipient and the Recipient's Representatives will promptly\ndeliver to the Provider any of the Provider's Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of\nthe Recipient's Representatives; provided, however, that, in lieu of delivering to the Provider any written materials containing Confidential\nInformation of the Provider, the Recipient may destroy such written materials and deliver to the Provider a certificate confirming their\ndestruction provided further, that the Recipient may retain one copy of such Confidential Information for archival purposes. Notwithstanding the\ndelivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant to this Section 5, the Recipient\nand its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement.\n6.\nStandstill Provision. During the period commencing today and ending on the first anniversary of the date of this Agreement, or if the\nCompany enters into any confidentiality agreement with another party within the next 45 days with a standstill period of less than 12 months then\nending on the earlier standstill ending date specified in such confidentiality agreement (the "Standstill Period"), neither Teva nor any of Teva's\nRepresentatives on behalf of Teva will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Company or any\nsecurities (including derivatives thereof) of any subsidiary or other affiliate of Company, (ii) any acquisition of any assets of Company or\nany assets of any subsidiary, division or other affiliate of Company, (iii) any tender offer, exchange offer, merger, business combination,\nrecapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Company or any subsidiary or other affiliate\nof Company or involving any securities or assets of Company or any securities or assets of any subsidiary, division or other affiliate of\nCompany, or (iv) any "solicitation" of "proxies" (as those terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents with respect to any securities of Company;\n(b) form, join or participate in a "group" (as defined in the Securities Exchange Act of 1934, as amended, and the rules promulgated\nthereunder) with respect to the beneficial ownership of any securities of Company or any subsidiary or division of Company;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Company;\n3\n(d) take any action that might require Company to make a public announcement regarding any of the types of matters set forth\nin\nclause "(a)" of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause "(a)", "(b)",\n"(c)" or "(d)" of this sentence;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause "(a)", "(b)", "(c)", "(d)" or "(e)" of\nthis sentence;\n(g) enter into any discussions, negotiations arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) request or propose that Company or any of Company's Representatives amend, waive or consider the amendment or waiver of\nany provision set forth in this Section 6.\nNothing in this Agreement will prevent Teva or its Representatives from communicating with the Chief Executive Officer of Company to make a\nproposal for or to negotiate with Company in respect of a tender or exchange offer, merger or other business combination, or any other of the\ntransactions described in Section 6(a)(i) involving Company and Teva SO long as such communication is made confidentially and does\nnot\nrequire public disclosure. Following the end of the Standstill Period, nothing in this Agreement (including the prohibitions on use and disclosure\nset\nforth in Sections 1 and 4 hereof) shall, directly or indirectly, prevent or otherwise limit Teva and its Representatives from taking any actions\nreferred to in clauses (a)-(h) of this Section 6 or related thereto, and in each case without notice to or consultation with Company. The expiration\nof the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement. Furthermore, if at any time prior to\nthe end of the Standstill Period (i) a third party commences a tender offer for at least fifty percent (50%) of Company's outstanding common\nstock that the Board of Directors of Company recommends, or (ii) a third party enters into an agreement with Company contemplating the\nacquisition (by way of merger, tender offer, or otherwise) of at least fifty percent (50%) of the outstanding common stock of Company, the\nrestrictions set forth in this Section 6 shall immediately terminate and cease to be of any further force or effect.\n7. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter\ninto any such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process\nit\ndeems appropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such\nprocess without giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party's\nRepresentatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any\ntime. Each Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after\nthe date of this Agreement:\n4\n(i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested\nparty; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party's Representatives arising out of\nor\nrelating to any transaction or proposed transaction involving the other Party.\n8. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this\nAgreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or\nfuture exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived\nor amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the\nparticular provision or provisions being waived or amended.\n9. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such\nParty or by any of such Party's Representatives and that the other Party would suffer irreparable harm as a result of any such breach.\nAccordingly, each Party will also be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach\nor threatened breach of this Agreement by the other Party or any of the other Party's Representatives. The equitable remedies referred to above\nwill not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available\nat\nlaw or in equity to the Parties. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either\nParty or any of its Representatives has breached this Agreement, such Party will be liable for, and will pay to the other Party and the other Party's\nRepresentatives, the reasonable legal fees incurred by the other Party and the other Party's Representatives in connection with such litigation\n(including any appeal relating thereto).\n10. Trading in Securities. The Recipient acknowledges and agrees that it is aware (and that the Recipient's Representatives are aware or\nwill be advised by the Recipient) that Confidential Information being furnished by the Provider may contain material, non-public information\nregarding the Provider and that the United States securities laws prohibit any Person who has such material, non-public information from\npurchasing or selling securities of the Provider on the basis of such information or from communicating such information to any Person under\ncircumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such securities on the basis of such information.\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of\neach Party and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in\naccordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and\nunconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware purposes of any action,\nsuit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S.\nregistered mail to the address set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any\nsuch action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any\naction, suit or proceeding\n5\narising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and unconditionally\nwaives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out\nof or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient\nforum.\n12. Confidential Information. For purposes of this Agreement, the Provider's "Confidential Information" will be deemed to include only\nthe following:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget,\nforecast or projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other\naffiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has\nat\nany time been made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative\nof the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or\nhas been prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or\nindirectly upon any information of the type referred to in clause "(a)" of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause "(a)" of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and\nthe proposed terms of any such transaction. However, the Provider's "Confidential Information" will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure\nof any of such information by the Recipient or by any of the Recipient's Representatives;\n(ii) any information that was in the Recipient's possession prior to the time it was first made available to the Recipient or any of\nthe Recipient's Representatives by or on behalf of the Provider or any of the Provider's Representatives, provided that the source of\nsuch information was not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality\nto\nthe Provider or to any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non- confidential basis from a source other than the Provider\nor any of the Provider's Representatives, provided that such source is not known to the Recipient to be bound by any contractual or\nother obligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n6\n(iv)\nany information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential\nInformation and without reference to or use of Confidential Information.\n13. Co-Bidders and Financing Sources. Without limiting anything in this Agreement, Teva agrees that it will not directly or indirectly\n(i) approach or team, co-venture, club or otherwise partner with any person or firm that may be interested in participating in a transaction with\nCompany as a principal, co-investor, CO- bidder or financing source or (ii) engage in any discussions which might lead to, or enter into, any\nagreement, arrangement or understanding with any such person or firm; provided, however, that subject to the written pre-approva of the\nCompany and subject to Section 14(a) below, Teva may contact and/or utilize pre-approved debt financing sources in connection with the\npotential negotiated transaction between the Parties.\n14. Miscellaneous.\n(a) For purposes of this Agreement, a Party's "Representatives" will be deemed to include each Person that is or becomes (i) a\nsubsidiary of such Party, (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of\nany of such Party's subsidiaries (excluding any affiliated portfolio companies) or (iii) only upon prior written approval of Company, a\npotential debt financing source to be used by Teva in connection with a potential negotiated transaction between the Parties, provided that\nany debt financing source enters into a confidentiality agreement with Teva that include obligations relating to Company 's Confidential\nInformation, securities and employees that are at least as restrictive as the obligations in this Agreement (and providing that Company shall\nbe a third party beneficiary thereof).\n(b) The term "Person," as used in this Agreement, will be broadly interpreted to include any individual and any corporation,\npartnership, entity, group, tribunal or governmental authority.\n(c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in\nany other situation or in any other jurisdiction.\n(e) By making Confidential Information or other information available to the Recipient or the Recipient's Representatives, the\nProvider is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any\npatent, trade secret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient's\nRepresentatives shall file any patent application containing any claim to any subject matter derived from the Confidential Information of\nthe Provider.\n7\n(f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending,\nthreatened or prospective action, suit, proceeding investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a\ncommonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and\nthat it is the Parties' mutual desire, intention and understanding that the sharing of such materials and other information is not intended to,\nand shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any\nof such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine.\nAccordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other\napplicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense\ndoctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such\nprivileges or doctrines.\n(g) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(h) This Agreement shall continue in full force and effect for a period of three years from the effective date of this Agreement This\nAgreement may be terminated by either party at any time upon thirty (30) days written notice to the other party. The termination of this\nAgreement shall not relieve the Recipient of the obligations imposed by Sections 1, 4, 5, 8 through 14 inclusive of this Agreement\nwhich\nshall survive any such termination and continue for a period of three years from the date of execution of this Agreement or relieve Teva of\nits obligations under Section 6 of this Agreement Nothing herein is intended to limit or abridge the protection of trade secrets under\napplicable trade secrets law, and the protection of trade secrets by the Recipient shall be maintained as such until they fall into the public\ndomain.\n(i) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any\nproducts utilizing such data to countries outside the United States, which export may be in violation of the United States export laws\nor\nregulations.\n(j) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related\nhereto, including legal notices, shall be in the English language only.\n8\n(k) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic\ntransaction or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.\nThe parties have caused this Agreement to be executed as of March 1, 2015.\nAUSPEX PHARMACEUTICALS\nTEVA PHARMACEUTICAL INDUSTRIES, LTD.\nBy:\n/s/ Bharatt Chowrira\nBy:\n/s/ Keren Haruvi\nName: Bharatt Chowrira\nName: Keren Haruvi, VP\nTitle: COO\nTitle:\nHead of Global M&A and Transactional Analytics\nAddress:\n3333 North Torrey Pines Court\nSuite 400\nLa Jolla, CA 92037\nUSA\nContact: President & CEO\nBy:\n/s/ Amir Menis\nName:\nAmir Menis\nTitle:\nAnalyst, BD\nAddress:\n5 Basel Street\nPetach Tikva 4951033\nIsrael\nContact: Keren Haruvi\n9\nEXHIBIT A\nPROVIDER CONTACT PERSONS\nCOMPANY:\nPratik Shah, President and Chief Executive Officer\nBharatt Chowrira, Chief Operating Officer\nJohn Schmid, Chief Financial Officer\nTEVA:\nKeren Haruvi Snir, SVP, M&A\n10 EX-99.(D)(3) 8 d901048dex99d3.htm CONFIDENTIALITY AGREEMENT BY AND BETWEEN AUSPEX AND\nTEVA, DATED MARCH 1, 2015\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of March 1, 2015 between AUSPEX\nPHARMACEUTICALS, located at 3333 North Torrey Pines Court, Suite 400, La Jolla, CA 92037 (“Company”), and TEVA\nPHARMACEUTICAL INDUSTRIES, LTD., with a principal place of business at 5 Basel Street, Petach Tikva 4951033, Israel (“TEVA”).\nIn order to facilitate the consideration and negotiation of a possible negotiated transaction involving Company and Teva (referred to\ncollectively as the “Parties” and individually as a “Party”), each Party has either requested or may request access to certain non-public\ninformation regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in\nthis Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to in this Agreement as the\n“Recipient”.) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various\nrelated matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 4 below, neither the Recipient nor any of the\nRecipient’s Representatives (as defined in Section 14 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider ’s Confidential Information (as defined in Section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider ‘s Confidential Information to any other Person (as defined in Section 14 below).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct\non the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nactions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential\nInformation.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential\nInformation must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A or any investment banks or outside\nlegal counsel retained by the Provider in connection with the possible transaction (the “Provider Contact Person”). Neither the Recipient nor any\nof the Recipient ‘s Representatives will contact or otherwise communicate with any other Representative or employee of the Provider in\nconnection with a possible transaction without the prior written authorization of the Provider Contact Person.\n3. No Representations by Provider. The Provider Contact Person will have the exclusive authority to decide what Confidential\nInformation (if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of the\nProvider ’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the\nRecipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously\nfurnished. Neither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the\naccuracy or completeness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any\nliability to the Recipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United\nStates federal or state securities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any\ninaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive\nwritten agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the\nParties (a “Definitive Agreement”) will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient’s disclosure thereof;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping\nthe Recipient evaluate or negotiate a possible negotiated transaction between the Parties, and (B) has been provided with a copy of\nthis Agreement and has agreed to abide and be bound by the provisions hereof or is otherwise bound by confidentiality obligations at\nleast as restrictive as those contained in this Agreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process.\n(b) If prior to providing certain Confidential Information to the Recipient, the Provider delivers to the Recipient a written notice\nstating that such Confidential Information of the Provider may be disclosed only to specified Representatives of the Recipient, then,\nnotwithstanding anything to the contrary contained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the\ndisclosure of any of such Confidential Information to any other Representative of the Recipient.\n(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other\nvalid legal process to disclose any of the Provider ’s Confidential Information to any Person, then the Recipient will promptly provide the\nProvider with written notice of the applicable law, regulation or\n2\nprocess so that the Provider may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate\nfully with the Provider and the Provider’s Representatives in any attempt by the Provider to obtain any such protective order or other\nremedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any\nrequirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such Confidential\nInformation to the extent legally required.\n5. Return of Confidential Information. Upon the Provider ’s request, the Recipient and the Recipient’s Representatives will promptly\ndeliver to the Provider any of the Provider ’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of\nthe Recipient’s Representatives; provided, however, that, in lieu of delivering to the Provider any written materials containing Confidential\nInformation of the Provider, the Recipient may destroy such written materials and deliver to the Provider a certificate confirming their\ndestruction provided further, that the Recipient may retain one copy of such Confidential Information for archival purposes. Notwithstanding the\ndelivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant to this Section 5, the Recipient\nand its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement.\n6. Standstill Provision. During the period commencing today and ending on the first anniversary of the date of this Agreement, or if the\nCompany enters into any confidentiality agreement with another party within the next 45 days with a standstill period of less than 12 months then\nending on the earlier standstill ending date specified in such confidentiality agreement (the “Standstill Period”), neither Teva nor any of Teva’s\nRepresentatives on behalf of Teva will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Company or any\nsecurities (including derivatives thereof) of any subsidiary or other affiliate of Company, (ii) any acquisition of any assets of Company or\nany assets of any subsidiary, division or other affiliate of Company, (iii) any tender offer, exchange offer, merger, business combination,\nrecapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Company or any subsidiary or other affiliate\nof Company or involving any securities or assets of Company or any securities or assets of any subsidiary, division or other affiliate of\nCompany, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents with respect to any securities of Company;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934, as amended, and the rules promulgated\nthereunder) with respect to the beneficial ownership of any securities of Company or any subsidiary or division of Company;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Company;\n3\n(d) take any action that might require Company to make a public announcement regarding any of the types of matters set forth in\nclause “(a)” of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a)”, “(b)”,\n“(c)” or “(d)” of this sentence;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of\nthis sentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) request or propose that Company or any of Company’s Representatives amend, waive or consider the amendment or waiver of\nany provision set forth in this Section 6.\nNothing in this Agreement will prevent Teva or its Representatives from communicating with the Chief Executive Officer of Company to make a\nproposal for or to negotiate with Company in respect of a tender or exchange offer, merger or other business combination, or any other of the\ntransactions described in Section 6(a)(i) involving Company and Teva so long as such communication is made confidentially and does not\nrequire public disclosure. Following the end of the Standstill Period, nothing in this Agreement (including the prohibitions on use and disclosure\nset forth in Sections 1 and 4 hereof) shall, directly or indirectly, prevent or otherwise limit Teva and its Representatives from taking any actions\nreferred to in clauses (a)-(h) of this Section 6 or related thereto, and in each case without notice to or consultation with Company. The expiration\nof the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement. Furthermore, if at any time prior to\nthe end of the Standstill Period (i) a third party commences a tender offer for at least fifty percent (50%) of Company’s outstanding common\nstock that the Board of Directors of Company recommends, or (ii) a third party enters into an agreement with Company contemplating the\nacquisition (by way of merger, tender offer, or otherwise) of at least fifty percent (50%) of the outstanding common stock of Company, the\nrestrictions set forth in this Section 6 shall immediately terminate and cease to be of any further force or effect.\n7. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter\ninto any such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it\ndeems appropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such\nprocess without giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s\nRepresentatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any\ntime. Each Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after\nthe date of this Agreement:\n4\n(i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested\nparty; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or\nrelating to any transaction or proposed transaction involving the other Party.\n8. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this\nAgreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or\nfuture exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived\nor amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the\nparticular provision or provisions being waived or amended.\n9. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such\nParty or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach.\nAccordingly, each Party will also be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach\nor threatened breach of this Agreement by the other Party or any of the other Party’s Representatives. The equitable remedies referred to above\nwill not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at\nlaw or in equity to the Parties. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either\nParty or any of its Representatives has breached this Agreement, such Party will be liable for, and will pay to the other Party and the other Party’s\nRepresentatives, the reasonable legal fees incurred by the other Party and the other Party’s Representatives in connection with such litigation\n(including any appeal relating thereto).\n10. Trading in Securities. The Recipient acknowledges and agrees that it is aware (and that the Recipient’s Representatives are aware or\nwill be advised by the Recipient) that Confidential Information being furnished by the Provider may contain material, non-public information\nregarding the Provider and that the United States securities laws prohibit any Person who has such material, non-public information from\npurchasing or selling securities of the Provider on the basis of such information or from communicating such information to any Person under\ncircumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such securities on the basis of such information.\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of\neach Party and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in\naccordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and\nunconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware purposes of any action,\nsuit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S.\nregistered mail to the address set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any\nsuch action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any\naction, suit or proceeding\n5\narising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and unconditionally\nwaives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out\nof or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient\nforum.\n12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only\nthe following:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget,\nforecast or projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other\naffiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has at\nany time been made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative\nof the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or\nhas been prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or\nindirectly upon any information of the type referred to in clause “(a)” of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and\nthe proposed terms of any such transaction. However, the Provider ’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure\nof any of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of\nthe Recipient’s Representatives by or on behalf of the Provider or any of the Provider ’s Representatives, provided that the source of\nsuch information was not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to\nthe Provider or to any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non- confidential basis from a source other than the Provider\nor any of the Provider’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or\nother obligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n6\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential\nInformation and without reference to or use of Confidential Information.\n13. Co-Bidders and Financing Sources. Without limiting anything in this Agreement, Teva agrees that it will not directly or indirectly\n(i) approach or team, co-venture, club or otherwise partner with any person or firm that may be interested in participating in a transaction with\nCompany as a principal, co-investor, co- bidder or financing source or (ii) engage in any discussions which might lead to, or enter into, any\nagreement, arrangement or understanding with any such person or firm; provided, however, that subject to the written pre-approval of the\nCompany and subject to Section 14(a) below, Teva may contact and/or utilize pre-approved debt financing sources in connection with the\npotential negotiated transaction between the Parties.\n14. Miscellaneous.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a\nsubsidiary of such Party, (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of\nany of such Party’s subsidiaries (excluding any affiliated portfolio companies) or (iii) only upon prior written approval of Company, a\npotential debt financing source to be used by Teva in connection with a potential negotiated transaction between the Parties, provided that\nany debt financing source enters into a confidentiality agreement with Teva that include obligations relating to Company ‘s Confidential\nInformation, securities and employees that are at least as restrictive as the obligations in this Agreement (and providing that Company shall\nbe a third party beneficiary thereof).\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation,\npartnership, entity, group, tribunal or governmental authority.\n(c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in\nany other situation or in any other jurisdiction.\n(e) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the\nProvider is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any\npatent, trade secret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s\nRepresentatives shall file any patent application containing any claim to any subject matter derived from the Confidential Information of\nthe Provider.\n7\n(f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending,\nthreatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a\ncommonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and\nthat it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to,\nand shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any\nof such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine.\nAccordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other\napplicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense\ndoctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such\nprivileges or doctrines.\n(g) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(h) This Agreement shall continue in full force and effect for a period of three years from the effective date of this Agreement. This\nAgreement may be terminated by either party at any time upon thirty (30) days written notice to the other party. The termination of this\nAgreement shall not relieve the Recipient of the obligations imposed by Sections 1, 4, 5, 8 through 14 inclusive of this Agreement which\nshall survive any such termination and continue for a period of three years from the date of execution of this Agreement or relieve Teva of\nits obligations under Section 6 of this Agreement. Nothing herein is intended to limit or abridge the protection of trade secrets under\napplicable trade secrets law, and the protection of trade secrets by the Recipient shall be maintained as such until they fall into the public\ndomain.\n(i) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any\nproducts utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or\nregulations.\n(j) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related\nhereto, including legal notices, shall be in the English language only.\n8\n(k) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic\ntransaction or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.\nThe parties have caused this Agreement to be executed as of March 1, 2015.\nAUSPEX PHARMACEUTICALS\nTEVA PHARMACEUTICAL INDUSTRIES, LTD.\nBy: /s/ Bharatt Chowrira\nBy:\n/s/ Keren Haruvi\nName: Bharatt Chowrira\nName: Keren Haruvi, VP\nTitle: COO\nTitle:\nHead of Global M&A and Transactional Analytics\nAddress:\n3333 North Torrey Pines Court\nSuite 400\nLa Jolla, CA 92037\nUSA\nContact: President & CEO\nBy:\n/s/ Amir Menis\nName: Amir Menis\nTitle:\nAnalyst, BD\nAddress:\n5 Basel Street\nPetach Tikva 4951033\nIsrael\nContact: Keren Haruvi\n9\nEXHIBIT A\nPROVIDER CONTACT PERSONS\nCOMPANY:\nPratik Shah, President and Chief Executive Officer\nBharatt Chowrira, Chief Operating Officer\nJohn Schmid, Chief Financial Officer\nTEVA:\nKeren Haruvi Snir, SVP, M&A\n10 12fe8459ce606334afe537b24f476fa2.pdf effective_date jurisdiction party term EX-10 .10 3 ex101011112.htm EXHIBIT 10.10\nExhibit 10.10\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this “Agreement”), dated this 11th day of January, 2012, is by and among First\nFinancial Northwest, Inc. (the “Company”), Stilwell Associates, L.P., Stilwell Partners, L.P., Stilwell Value Partners II, L.P., Stilwell Value Partners\nVI, L.P., Stilwell Value Partners VII, L.P., Stilwell Value LLC, Stilwell Associates Insurance Fund of The S.A.L .I . Multi-Series Fund L.P., Stilwell\nAdvisers LLC, and Joseph Stilwell, an individual, and their employees and representatives (collectively, the "Stilwell Group") and Spencer L.\nSchneider, a director nominee of the Stilwell Group (“Schneider”).\nWHEREAS, the Company has agreed to place Schneider on its board of directors;\nWHEREAS, the Company, the Stilwell Group and Schneider have agreed that it is in their mutual interests to enter into this\nAgreement as hereinafter described.\nNOW THEREFORE, for good and valuable consideration, the parties hereto mutually agree as follows:\n1.\nIn connection with Schneider serving on the Company’s board, Schneider and other Company employees, directors, and\nagents may divulge nonpublic information concerning the Company and its subsidiaries to the Stilwell Group and such information may be shared\namong the Stilwell Group's employees and agents who have a need to know such information. The Stilwell Group expressly agrees to maintain all\nnonpublic information concerning the Company and its subsidiaries in confidence. The Stilwell Group expressly acknowledges that federal and\nstate securities laws may prohibit a person from purchasing or selling securities of a company, or from communicating such information to any\nother person under circumstances in which it is reasonably foreseeable that such other person is likely to purchase or sell such securities, while the\nfirst-mentioned person is in possession of material nonpublic information about such company. The Stilwell Group agrees to comply with the\nCompany’s insider trading and disclosure policies, as in effect from time to time, to the same extent as if it were a director of the Company. To the\nextent the nonpublic information concerning the Company and its subsidiaries received by the Stilwell Group is material, this Agreement is\nintended to satisfy the confidentiality agreement exclusion of Regulation FD of the Securities and Exchange Commission (the “SEC”) set forth in\nSection 243.100(b)(2)(ii) of Regulation FD.\n2.\nEach of the Stilwell Group and Schneider represents and warrants to the Company that this Agreement has been duly and\nvalidly authorized (in the case of the entity members of the Stilwell Group), executed and delivered by them, and is a valid and binding agreement\nenforceable against them in accordance with its terms.\n3.\nSchneider hereby further represents and warrants to the Company that: (a) he satisfies all of the qualifications to be a\ndirector of the Company as set forth in Article III, Section 4 of the Company’s bylaws and any additional applicable qualifications under the laws of\nthe State of Washington or under the regulations of any bank regulatory authority, and that he is not in any way precluded from serving as a director\nby order or other action of any court,\nregulatory or other governmental authority; and (b) no event has occurred with respect to Schneider that would require disclosure in a document\nfiled by the Company with the SEC pursuant to the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, under\nItem 401(f) of SEC Regulation S-K.\n4.\nThe Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic\ninformation of the Company and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this\nAgreement and that, in addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable\nrelief as a remedy for such breach, and in conjunction therewith the Company shall not be required to post any bond.\n5.\nThis Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and\nsupersedes all prior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not\nreferred to herein.\n6.\nThis Agreement shall be governed by, and construed in accordance with the laws of the State of Washington, without\nregard to choice of law principles that may otherwise compel the application of the laws of any other jurisdiction. Each of the parties hereby\nirrevocably consents to the exclusive jurisdiction of the state and federal courts sitting in the State of Washington to resolve any dispute arising from\nthis Agreement and waives any defense of inconvenient or improper forum.\n7.\nThe terms and provisions of this agreement shall be deemed severable, and in the event any term or provision hereof or\nportion thereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties.\n8.\nAll representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this\nAgreement.\n9.\nThis Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a\nwritten agreement executed by all of the parties hereto.\n10.\nThis Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall\nconstitute one and the same agreement.\n-2\n-\nIN WITNESS WHEREOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned\nas of the day and year first above written.\nTHE STILWELL GROUP\nFIRST FINANCIAL NORTHWEST, INC.\n/s/Joseph Stilwell\n/s/Victor\nKarpiak\nBy: Joseph Stilwell\nBy: Victor Karpiak, Chairman, President\nand Chief Executive Officer\nSPENCER L. SCHNEIDER\n/s/Spencer L. Schneider\nSpencer L. Schneider\n-3- EX-10.10 3 ex101011112.htm EXHIBIT 10.10\nExhibit 10.10\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this “Agreement”), dated this 11th day of January, 2012, is by and among First\nFinancial Northwest, Inc. (the “Company”), Stilwell Associates, L.P., Stilwell Partners, L.P., Stilwell Value Partners II, L.P., Stilwell Value Partners\nVI, L.P,, Stilwell Value Partners VII, L.P., Stilwell Value LLC, Stilwell Associates Insurance Fund of The S.A.L.I. Multi-Series Fund L.P., Stilwell\nAdvisers LLC, and Joseph Stilwell, an individual, and their employees and representatives (collectively, the "Stilwell Group") and Spencer L.\nSchneider, a director nominee of the Stilwell Group (“Schneider”).\nWHEREAS, the Company has agreed to place Schneider on its board of directors;\nWHEREAS, the Company, the Stilwell Group and Schneider have agreed that it is in their mutual interests to enter into this\nAgreement as hereinafter described.\nNOW THEREFORE, for good and valuable consideration, the parties hereto mutually agree as follows:\n1. In connection with Schneider serving on the Company’s board, Schneider and other Company employees, directors, and\nagents may divulge nonpublic information concerning the Company and its subsidiaries to the Stilwell Group and such information may be shared\namong the Stilwell Group's employees and agents who have a need to know such information. The Stilwell Group expressly agrees to maintain all\nnonpublic information concerning the Company and its subsidiaries in confidence. The Stilwell Group expressly acknowledges that federal and\nstate securities laws may prohibit a person from purchasing or selling securities of a company, or from communicating such information to any\nother person under circumstances in which it is reasonably foreseeable that such other person is likely to purchase or sell such securities, while the\nfirst-mentioned person is in possession of material nonpublic information about such company. The Stilwell Group agrees to comply with the\nCompany’s insider trading and disclosure policies, as in effect from time to time, to the same extent as if it were a director of the Company. To the\nextent the nonpublic information concerning the Company and its subsidiaries received by the Stilwell Group is material, this Agreement is\nintended to satisfy the confidentiality agreement exclusion of Regulation FD of the Securities and Exchange Commission (the “SEC”) set forth in\nSection 243.100(b)(2)(ii) of Regulation FD.\n2. Each of the Stilwell Group and Schneider represents and warrants to the Company that this Agreement has been duly and\nvalidly authorized (in the case of the entity members of the Stilwell Group), executed and delivered by them, and is a valid and binding agreement\nenforceable against them in accordance with its terms.\n3. Schneider hereby further represents and warrants to the Company that: (a) he satisfies all of the qualifications to be a\ndirector of the Company as set forth in Article III, Section 4 of the Company’s bylaws and any additional applicable qualifications under the laws of\nthe State of Washington or under the regulations of any bank regulatory authority, and that he is not in any way precluded from serving as a director\nby order or other action of any court,\nregulatory or other governmental authority; and (b) no event has occurred with respect to Schneider that would require disclosure in a document\nfiled by the Company with the SEC pursuant to the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, under\nItem 401(f) of SEC Regulation S-K.\n4. The Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic\ninformation of the Company and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this\nAgreement and that, in addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable\nrelief as a remedy for such breach, and in conjunction therewith the Company shall not be required to post any bond.\n5. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and\nsupersedes all prior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not\nreferred to herein.\n6. This Agreement shall be governed by, and construed in accordance with the laws of the State of Washington, without\nregard to choice of law principles that may otherwise compel the application of the laws of any other jurisdiction. Each of the parties hereby\nirrevocably consents to the exclusive jurisdiction of the state and federal courts sitting in the State of Washington to resolve any dispute arising from\nthis Agreement and waives any defense of inconvenient or improper forum.\n7. The terms and provisions of this agreement shall be deemed severable, and in the event any term or provision hereof or\nportion thereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties.\n8. All representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this\nAgreement.\n9. This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a\nwritten agreement executed by all of the parties hereto.\n10. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall\nconstitute one and the same agreement.\nIN WITNESS WHEREOQF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned\nas of the day and year first above written.\nTHE STILWELL GROUP FIRST FINANCIAL NORTHWEST, INC.\n[s/Joseph Stilwell [s/Victor\nKarpiak 00000\nBy: Joseph Stilwell By: Victor Karpiak, Chairman, President\nand Chief Executive Officer\nSPENCER L. SCHNEIDER\n/s/Spencer L. Schneider\nSpencer L. Schneider EX-10.10 3 ex101011112.htm EXHIBIT 10.10\nExhibit 10.10\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this "Agreement"), dated this 11th day of January, 2012, is by and among First\nFinancial Northwest, Inc. (the "Company"), Stilwell Associates, L.P., Stilwell Partners, L.P., Stilwell Value Partners II, L.P., Stilwell Value Partners\nVI, L.P., Stilwell Value Partners VII, L.P., Stilwell Value LLC, Stilwell Associates Insurance Fund of The S.A.L.I. Multi-Series Fund L.P., Stilwell\nAdvisers LLC, and Joseph Stilwell, an individual, and their employees and representatives (collectively, the "Stilwell Group") and Spencer L.\nSchneider, a director nominee of the Stilwell Group ("Schneider").\nWHEREAS, the Company has agreed to place Schneider on its board of directors;\nWHEREAS, the Company, the Stilwell Group and Schneider have agreed that it is in their mutual interests to enter into this\nAgreement as hereinafter described.\nNOW THEREFORE, for good and valuable consideration, the parties hereto mutually agree as follows:\n1.\nIn connection with Schneider serving on the Company's board, Schneider and other Company employees, directors, and\nagents may divulge nonpublic information concerning the Company and its subsidiaries to the Stilwell Group and such information may be shared\namong the Stilwell Group's employees and agents who have a need to know such information. The Stilwell Group expressly agrees to maintain all\nnonpublic information concerning the Company and its subsidiaries in confidence. The Stilwell Group expressly acknowledges that federal and\nstate securities laws may prohibit a person from purchasing or selling securities of a company, or from communicating such information to any\nother person under circumstances in which it is reasonably foreseeable that such other person is likely to purchase or sell such securities, while\nthe\nfirst-mentioned person is in possession of material nonpublic information about such company. The Stilwell Group agrees to comply with the\nCompany's insider trading and disclosure policies, as in effect from time to time, to the same extent as if it were a director of the Company. To the\nextent the nonpublic information concerning the Company and its subsidiaries received by the Stilwell Group is material, this Agreement is\nintended to satisfy the confidentiality agreement exclusion of Regulation FD of the Securities and Exchange Commission (the "SEC") set forth in\nSection 243.100(b)(2)(ii) of Regulation FD.\n2.\nEach of the Stilwell Group and Schneider represents and warrants to the Company that this Agreement has been duly and\nvalidly authorized (in the case of the entity members of the Stilwell Group), executed and delivered by them, and is a valid and binding agreement\nenforceable against them in accordance with its terms.\n3.\nSchneider hereby further represents and warrants to the Company that: (a) he satisfies all of the qualifications to be\na\ndirector of the Company as set forth in Article III, Section 4 of the Company's bylaws and any additional applicable qualifications under the laws of\nthe State of Washington or under the regulations of any bank regulatory authority, and that he is not in any way precluded from serving as a director\nby order or other action of any court,\nregulatory or other governmental authority; and (b) no event has occurred with respect to Schneider that would require disclosure in a document\nfiled by the Company with the SEC pursuant to the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, under\nItem 401(f) of SEC Regulation S-K.\n4.\nThe Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic\ninformation of the Company and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this\nAgreement and that, in addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable\nrelief as a remedy for such breach, and in conjunction therewith the Company shall not be required to post any bond.\n5.\nThis Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and\nsupersedes all prior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not\nreferred to herein.\n6.\nThis Agreement shall be governed by, and construed in accordance with the laws of the State of Washington, without\nregard to choice of law principles that may otherwise compel the application of the laws of any other jurisdiction Each of the parties hereby\nirrevocably consents to the exclusive jurisdiction of the state and federal courts sitting in the State of Washington to resolve any dispute arising from\nthis Agreement and waives any defense of inconvenient or improper forum.\n7.\nThe terms and provisions of this agreement shall be deemed severable, and in the event any term or provision hereof or\nportion thereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties.\n8.\nAll representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this\nAgreement.\n9.\nThis Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a\nwritten agreement executed by all of the parties hereto.\n10.\nThis Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall\nconstitute one and the same agreement.\n- 2 -\nIN WITNESS WHEREOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned\nas of the day and year first above written.\nTHE STILWELL GROUP\nFIRST FINANCIAL NORTHWEST, INC.\n/s/Joseph Stilwell\n/s/Victor\nKarpiak\nBy:\nJoseph Stilwell\nBy:\nVictor Karpiak, Chairman, President\nand Chief Executive Officer\nSPENCER L. SCHNEIDER\nIs/Spencer L. Schneider\nSpencer L. Schneider\n-3- EX-10 .10 3 ex101011112.htm EXHIBIT 10.10\nExhibit 10.10\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this “Agreement”), dated this 11th day of January, 2012, is by and among First\nFinancial Northwest, Inc. (the “Company”), Stilwell Associates, L.P., Stilwell Partners, L.P., Stilwell Value Partners II, L.P., Stilwell Value Partners\nVI, L.P., Stilwell Value Partners VII, L.P., Stilwell Value LLC, Stilwell Associates Insurance Fund of The S.A.L .I . Multi-Series Fund L.P., Stilwell\nAdvisers LLC, and Joseph Stilwell, an individual, and their employees and representatives (collectively, the "Stilwell Group") and Spencer L.\nSchneider, a director nominee of the Stilwell Group (“Schneider”).\nWHEREAS, the Company has agreed to place Schneider on its board of directors;\nWHEREAS, the Company, the Stilwell Group and Schneider have agreed that it is in their mutual interests to enter into this\nAgreement as hereinafter described.\nNOW THEREFORE, for good and valuable consideration, the parties hereto mutually agree as follows:\n1.\nIn connection with Schneider serving on the Company’s board, Schneider and other Company employees, directors, and\nagents may divulge nonpublic information concerning the Company and its subsidiaries to the Stilwell Group and such information may be shared\namong the Stilwell Group's employees and agents who have a need to know such information. The Stilwell Group expressly agrees to maintain all\nnonpublic information concerning the Company and its subsidiaries in confidence. The Stilwell Group expressly acknowledges that federal and\nstate securities laws may prohibit a person from purchasing or selling securities of a company, or from communicating such information to any\nother person under circumstances in which it is reasonably foreseeable that such other person is likely to purchase or sell such securities, while the\nfirst-mentioned person is in possession of material nonpublic information about such company. The Stilwell Group agrees to comply with the\nCompany’s insider trading and disclosure policies, as in effect from time to time, to the same extent as if it were a director of the Company. To the\nextent the nonpublic information concerning the Company and its subsidiaries received by the Stilwell Group is material, this Agreement is\nintended to satisfy the confidentiality agreement exclusion of Regulation FD of the Securities and Exchange Commission (the “SEC”) set forth in\nSection 243.100(b)(2)(ii) of Regulation FD.\n2.\nEach of the Stilwell Group and Schneider represents and warrants to the Company that this Agreement has been duly and\nvalidly authorized (in the case of the entity members of the Stilwell Group), executed and delivered by them, and is a valid and binding agreement\nenforceable against them in accordance with its terms.\n3.\nSchneider hereby further represents and warrants to the Company that: (a) he satisfies all of the qualifications to be a\ndirector of the Company as set forth in Article III, Section 4 of the Company’s bylaws and any additional applicable qualifications under the laws of\nthe State of Washington or under the regulations of any bank regulatory authority, and that he is not in any way precluded from serving as a director\nby order or other action of any court,\nregulatory or other governmental authority; and (b) no event has occurred with respect to Schneider that would require disclosure in a document\nfiled by the Company with the SEC pursuant to the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, under\nItem 401(f) of SEC Regulation S-K.\n4.\nThe Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic\ninformation of the Company and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this\nAgreement and that, in addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable\nrelief as a remedy for such breach, and in conjunction therewith the Company shall not be required to post any bond.\n5.\nThis Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and\nsupersedes all prior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not\nreferred to herein.\n6.\nThis Agreement shall be governed by, and construed in accordance with the laws of the State of Washington, without\nregard to choice of law principles that may otherwise compel the application of the laws of any other jurisdiction. Each of the parties hereby\nirrevocably consents to the exclusive jurisdiction of the state and federal courts sitting in the State of Washington to resolve any dispute arising from\nthis Agreement and waives any defense of inconvenient or improper forum.\n7.\nThe terms and provisions of this agreement shall be deemed severable, and in the event any term or provision hereof or\nportion thereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties.\n8.\nAll representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this\nAgreement.\n9.\nThis Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a\nwritten agreement executed by all of the parties hereto.\n10.\nThis Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall\nconstitute one and the same agreement.\n-2\n-\nIN WITNESS WHEREOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned\nas of the day and year first above written.\nTHE STILWELL GROUP\nFIRST FINANCIAL NORTHWEST, INC.\n/s/Joseph Stilwell\n/s/Victor\nKarpiak\nBy: Joseph Stilwell\nBy: Victor Karpiak, Chairman, President\nand Chief Executive Officer\nSPENCER L. SCHNEIDER\n/s/Spencer L. Schneider\nSpencer L. Schneider\n-3- 137b97581e7b68b665e86b37d0a25500.pdf effective_date jurisdiction party term EX-99.(D)(4) 9 dex99d4.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (d)(4)\nMUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT\nThis MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT is made to be effective on 30th day of April, 2009, between California\nMicro Devices Corporation , a Delaware corporation having its principal place of business at 490 N. McCarthy Blvd., #100, Milpitas, CA 95035\ntogether with its Affiliates (the “Company”), and ON Semiconductor Corporation, a Delaware corporation having its principal place of business at\n5005 East McDowell Road, Phoenix, AZ 85008 USA together with its Affiliates (“ON”). ON and the Company propose to enter into discussions\nconcerning a corporate strategic transaction in which ON would acquire the Company via merger (a “Transaction”). In these discussions, each party\n(the “Discloser’”) will disclose information to the other party (the “Recipient”).\n1.0 DEFINITIONS. The term “Evaluation Material” shall mean information relating to the Discloser provided to the Recipient, and any other\ninformation derived by the Recipient or its directors, officers, employees, financial advisors, independent auditors, legal counsel or other agents or\nrepresentatives engaged for the Purpose (its “Representatives”) from the foregoing information related to the Discloser. The parties shall use\ncommercially reasonable efforts so that Evaluation Material provided in written form (including where provided in electronic or soft copy form) is\nlabeled as confidential or proprietary and Evaluation Material provided orally is designated as confidential or proprietary at the time of disclosure;\nprovided, however, that failure to do so shall not impact whether such information is Evaluation Material. “Affiliate” shall have the meaning given\nsuch term in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended (the “1934 Act”).\n2.0 PURPOSE. Each party agrees not to use, or allow the use by any of its Representatives, any portion of the other party’s Evaluation\nMaterial for any purpose other than evaluating a possible Transaction (the “Purpose”). Thus, for example, the Recipient will not interfere with any\nbusiness of Discloser through the use of any Evaluation Material or knowledge acquired under this Agreement nor use any such Evaluation Material\nfor its own account other than for the Purpose. In furtherance of the Purpose and subject to the terms and conditions of this Agreement, each party\nagrees to make available to the other party certain Evaluation Material.\n3.0 OBLIGATIONS OF CONFIDENTIALITY; LIMITATION OF USE.\n3.1 Each party agrees to keep confidential, and not to disclose or allow disclosure by any of its Representatives to others of any portion of, the\nother party’s Evaluation Material, except as provided for in this Agreement and except to its Representatives on a need to know basis after they have\nbeen informed of and have agreed to abide by the confidentiality and use restrictions in this Agreement. Each party shall be responsible for any\nbreach of this Agreement by its Representatives or Affiliates. Recipient shall protect the Evaluation Material with at least the same standard of care\nas it exercises to protect its own confidential information of like importance, but in no event less than reasonable care.\n3.2 Without limiting Section 3.1 above, a party will not, nor will it allow any of its Representatives to, (except as provided for in this\nAgreement or as required by applicable law or legal process) disclose to any third party, any information regarding the Transaction or any\ninformation relating in any way to the Evaluation Material, including, without limitation (i) that any investigations, discussions or negotiations are\ntaking or have taken place concerning a possible Transaction, including the status thereof or the termination of such discussions or negotiations,\n(ii) any of the terms, conditions or other facts with respect to any such possible Transaction or its consideration of a possible Transaction, (iii) that\nthis Agreement exists, that Evaluation Material exist or has been requested or made available or (iv) any opinion or view with respect to the\nTransaction or the Evaluation Material.\n3.3 The Recipient will only make such number of copies of the Evaluation Material as are necessary for the Purpose. Recipient shall reproduce\nand include in all copies of Evaluation Material prepared by Recipient the copyright notices and proprietary legends of Discloser as they appear\ntherein as furnished to Recipient by Discloser. Recipient shall not remove any proprietary, copyright, mask work, trade secret or other legend from\nany form of Evaluation Material. The Recipient shall not attempt to reverse-engineer any Evaluation Material and/or tangible objects containing the\nEvaluation Material.\n3.4 Recipient shall have no obligation hereunder as to Evaluation Material that (i) is known to Recipient at the time of disclosure, as evidenced\nby written documentation or other reasonably convincing proof; (ii) the Recipient independently develops without use of Evaluation Material;\n(iii) becomes rightfully known to Recipient without, to the Recipient’s knowledge, any confidentiality obligation; or (iv) is or becomes publicly\nknown through no wrongful act or omission of the Recipient.\n3.5 Each party hereby acknowledges that it is aware, and further agrees that it will advise its Representatives, that US Federal and state\nsecurities laws limit the circumstances in which any person who has material, non-public information about a company from purchasing or selling\nsecurities of such a company and prohibit any such person from communicating such information to any other\nPage1of4\nperson under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities or derivative securities\nrelating to such securities.\n4.0 TRANSACTION AGREEMENT. Each party agrees that no contract or agreement providing for a Transaction shall be deemed to exist\nbetween the parties and/or any of the parties’ stockholders unless and until a detailed definitive written agreement providing for a Transaction (a\n“Transaction Agreement”) has been executed and delivered by both parties, and each party hereby waives, in advance, any claims (including,\nwithout limitation, claims for breach of contract) in connection with any possible Transaction unless and until the parties shall have entered into such\ndefinitive Transaction Agreement. Each party also agrees that unless and until such definitive Transaction Agreement has been executed and\ndelivered by both parties, neither party has any legal obligation of any kind whatsoever with respect to any Transaction by virtue of this Agreement\nor any other written or oral expression with respect to such Transaction except, in the case of this Agreement, for the matters specifically agreed to\nherein. The term “Transaction Agreement” does not include an executed letter of intent or any other preliminary written agreement, nor does it\ninclude any written or oral acceptance of any offer or bid by any party.\n5.0 JUDICIAL OR GOVERNMENTAL DISCLOSURE. If any party or any of its Representatives becomes legally compelled (by judicial\nor governmental request, requirement or order, deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar\nprocess) to disclose any of the other party’s Evaluation Material, or is threatened to become so legally compelled, such party shall provide the other\nparty with prompt prior written notice so that the other party may attempt to prevent, and/or assist such party in its attempts to prevent, such legal\ncompulsion and such party may ultimately disclose only that portion of the other party’s Evaluation Material that is legally required and shall\nexercise best efforts to obtain assurance that confidential treatment will be accorded the other party’s Evaluation Material. In the event either party is\nadvised by counsel that such party is required by law to make any public disclosure otherwise prohibited by this Agreement, such party may make\nsuch public disclosure but shall give as much prior notice as is practicable to the other party and shall give the other party a reasonable opportunity to\ncomment on or to attempt to prevent the proposed disclosure.\n6.0 TERM; TERMINATION.\n6.1This Agreement shall terminate in its entirety one year after the date of this Agreement or, if earlier, upon the execution and delivery of a\nTransaction Agreement, unless the Transaction Agreement expressly otherwise provides.\n6.2 Either party may terminate this Agreement for any or no reason, by providing written notice of termination to the other party. The\nobligations of each of the parties under this Agreement shall remain in effect and survive any such termination for a period of three (3) years from\nthe date of this Agreement, except as otherwise stated in this Agreement.\n6.3 Each party agrees that if this Agreement is terminated or if the other party so requests in writing, Recipient shall promptly return to\nDiscloser (or at Recipient’s option destroy, subject to the next sentence of this Section, with such destruction to be certified to Discloser by an officer\nof Recipient) all copies of the Discloser’s Evaluation Material in its possession or in the possession of its Representatives. Notwithstanding the\nforegoing, Recipient may, pursuant to its standard retention policy, retain one archival copy and copies contained on routine back-ups of its email\nsystem subject to the confidentiality provisions of this Agreement.\n7.0 GENERAL.\n7.1. Assignment. Neither party may assign or transfer any of its rights or obligations under this Agreement.\n7.2 Waiver. No failure or delay by either party regarding any right, power or privilege hereunder shall operate as a waiver thereof and no single\nor partial exercise thereof shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\n7.3 No Other Rights. The Recipient does not acquire any license, rights or title in any Evaluation Material, except the limited right to use as\ndescribed above. The parties agree that nothing herein (i) requires the disclosure of any Evaluation Material to the other party or (ii) requires either\nparty to proceed with any transaction or relationship. Further, each party understands and acknowledges that neither party makes any representation\nor warranty, express or implied, as to the accuracy or completeness of the Evaluation Material exchanged. Evaluation Material IS DELIVERED “AS\nIS,” AND ALL REPRESENTATIVES AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING FITNESS FOR A PARTICULAR\nPURPOSE, MERCHANTABILITY AND NONINFRINGEMENT ARE HEREBY DISCLAIMED except that, as its sole representation and\nwarranty, Discloser represents and warrants that it and its Representatives may rightfully disclose and make available the Evaluation Material it\ndiscloses to the Recipient without violating any contractual, legal, fiduciary, or other obligation or restriction applicable to the Discloser. Each party\nagrees that neither party shall have any liability to the other party relating to or resulting from the use permitted under this Agreement of or reliance\nupon such other party’s Evaluation Material or any errors therein or omissions therefrom. Only those subsequent\nPage2of4\nrepresentations or warranties, which are made in a final definitive agreement regarding a possible transaction or business combination, when, and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n7.4 No Agency. The parties hereto are independent contractors, and nothing herein shall be construed to create an agency, joint venture,\npartnership or other form of business association between the parties hereto.\n75. No Export. The parties agree to comply with all laws, rules and regulations applicable to the export or re-export of Evaluation Material,\nincluding obtaining any export licenses or other permissions required.\n7.6 Enforcement. Recipient acknowledges and agrees that in the event of an unauthorized use, reproduction, distribution or disclosure of any\nEvaluation Material, Discloser will not have an adequate remedy at law, and, therefore, injunctive or other equitable relief would be appropriate to\nrestrain such use, reproduction, distribution or disclosure, threatened or actual. Such remedy shall not be deemed to be the exclusive remedy for\nbreach of this Agreement, but shall be in addition to all other remedies available at law or equity to the Discloser.\n7.7. Notices. All notices or demands hereunder shall be in writing and sent to the other party and will be deemed delivered upon\nacknowledgment of receipt by the other party. Notices shall be sent to the addresses in the introduction or such other address as the parties provide\none another.\n7.8. Governing Law and Venue. This Agreement shall be governed by and interpreted in accordance with the laws of the state of Delaware.\nThe parties hereby submit to the jurisdiction of, and waive venue objections to, the Delaware Court of Chancery in the State of Delaware for the\npurposes of any action , suit, or proceeding arising out of or related to this Agreement and agree that they will commence any such matter in\nconnection with this Agreement only in such courts.\n7.9. Unenforceable Provisions. In the event that any provisions of this Agreement are held to be unenforceable, the remainder of this\nAgreement shall remain in full force and effect, and the parties agree to negotiate in good faith substitute enforceable provisions that most nearly\neffect the intent of the parties.\n8.0 COMPLETE AGREEMENT. This Agreement constitutes the entire agreement and understanding of the parties concerning its subject\nmatter, superseding all previous representations, agreements, and understandings, whether oral or written, relating to the subject matter hereof. Any\namendment to this Agreement shall be in a writing signed by both parties.\n9.0 STAND-STILL. Each party agrees that, until one year from the date of this Agreement, such party and its Representatives and its\n“Affiliates” as defined in the Securities Exchange Act of 1934, as amended (the “1934 Act”), will not in any manner, directly or indirectly, without\nthe prior written invitation or approval of the Board of Directors of the other party (a) effect or seek, offer or propose (whether publicly or otherwise)\nto effect, or cause or participate in or in any way knowingly assist any other person to effect or seek, offer or propose (whether publicly or otherwise)\nto effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof) or a material portion of the assets of the other party or\nany of its subsidiaries; (ii) any tender or exchange offer, merger or other business combination involving the other party or any of its subsidiaries;\n(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other party or any of its\nsubsidiaries; or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of\nthe other party or otherwise seek to advise or influence any person with respect to the voting of any securities of the other party; (b) form, join or in\nany way participate) in a “group” (as defined under the 1934 Act) in connection with any securities of the other party; (c) otherwise act, alone or in\nconcert with others, or seek to control or influence the Board of Directors or policies of the other party; (d) disclose any intention, plan or\narrangement inconsistent with the foregoing; (e) take any action which might force the other party to make a public announcement regarding any of\nthe types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing;\nprovided, however, that the foregoing obligations shall terminate as to a party if the other party publicly discloses that (a) it has entered into a merger\nagreement or an agreement for the sale of all or substantially all of that party’s assets with a third party which would result in that party’s\nstockholders receiving cash or stock of such third party in exchange for their shares or (b) the other party has endorsed or otherwise agreed to\nsupport the tender offer of a third party which if successful would result in the third party owning a majority of its outstanding stock. Except as\nprovided above, each party also agrees not to request the other party (or its Representatives) to amend or waive any provision of this paragraph.\nNotwithstanding the foregoing, (1) the Representative of party that is an investment banking., law, or independent accounting firm may after the\ntermination of this Agreement request that the other party consent that such firm may advise a third party with respect to the other party and not be in\nviolation of this Section 9 and the other party agrees in good faith to consider such request and (2) either party may vote shares of the other party\nacquired after the date of this Agreement with the approval of the other party.\n10.0 NON-SOLICITATION. Each party agrees not to solicit for employment any employees of the other party to whom such party may be\nintroduced or with whom such party otherwise had contact as a result of such party’s consideration of a Transaction until\nPage3of4\none year from the date of this Agreement, provided that such party shall not be restricted in any general solicitation for employees (including through\nthe use of employment agencies) not specifically directed at any such persons, and provided further that such party shall not be restricted in hiring\nany such person who responds to any such general solicitation.\n11.0 ANTITRUST COMPLIANCE. As the parties may be deemed to be competitors in some product lines, they agree that disclosures of\ncompetitively sensitive Evaluation Material (e.g ., information concerning prices, pricing plans and strategies, bidding and costs for competitive\nproduct lines) should not occur until the parties have determined based upon their due diligence that there is a reasonable likelihood that they will\nwant to engage in a Transaction and that such disclosure is necessary in order for the parties to evaluate the business and prospects and hence\nwhether to undertake a Transaction. The parties further agree that any such disclosures will be made only in accordance with applicable antitrust\nlaws. The parties understand that any Transaction may be subject to the US Hart-Scott-Rodino Act and require that Notification and Report Forms be\nsubmitted to the antitrust authorities. The parties further understand that the definitive agreement concerning a Transaction will contain further\nprovisions on the sharing of competitively sensitive Evaluation Material in order to ensure compliance with all applicable antitrust laws until the\nTransaction closes (or in the event the Transaction does not close). The parties may determine that, in order to evaluate the transaction under antitrust\nor competition laws, it would further their common interest to exchange more detailed information under appropriate conditions.\n12.0 ATTORNEY CLIENT PRIVILEGE. To the extent that any Evaluation Material may include material or information that is subject to\nthe attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or\ngovernmental investigations, the parties hereby agree and acknowledge that the sharing of such material is not intended to, and shall not, waive or\ndiminish in any way the confidentiality of such material or its continued privilege. Any Evaluation Material provided by Discloser that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection and nothing\nin this agreement shall obligate any party to reveal material or information that is subject to the attorney-client privilege, work product doctrine or\nother applicable privilege.\n“ON”\nBy: /s/ KEITH JACKSON\nKeith Jackson\nNAME (PRINT OR TYPE)\nCEO\nTITLE\n“COMPANY”\nBy: /s/ ROBERT V. DICKINSON\nRobert V. Dickinson\nNAME (PRINT OR TYPE)\nPresident and CEO\nTITLE\nPage4of4 EX-99.(D)(4) 9 dex99d4.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (d)(4)\nMUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT\nThis MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT is made to be effective on 30th day of April, 2009, between California\nMicro Devices Corporation , a Delaware corporation having its principal place of business at 490 N. McCarthy Blvd., #100, Milpitas, CA 95035\ntogether with its Affiliates (the “Company”), and ON Semiconductor Corporation, a Delaware corporation having its principal place of business at\n5005 East McDowell Road, Phoenix, AZ 85008 USA together with its Affiliates (“ON”). ON and the Company propose to enter into discussions\nconcerning a corporate strategic transaction in which ON would acquire the Company via merger (a “Transaction”). In these discussions, each party\n(the “Discloser’”) will disclose information to the other party (the “Recipient”).\n1.0 DEFINITIONS. The term “Evaluation Material” shall mean information relating to the Discloser provided to the Recipient, and any other\ninformation derived by the Recipient or its directors, officers, employees, financial advisors, independent auditors, legal counsel or other agents or\nrepresentatives engaged for the Purpose (its “Representatives”) from the foregoing information related to the Discloser. The parties shall use\ncommercially reasonable efforts so that Evaluation Material provided in written form (including where provided in electronic or soft copy form) is\nlabeled as confidential or proprietary and Evaluation Material provided orally is designated as confidential or proprietary at the time of disclosure;\nprovided, however, that failure to do so shall not impact whether such information is Evaluation Material. “Affiliate” shall have the meaning given\nsuch term in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended (the “1934 Act”).\n2.0 PURPOSE. Each party agrees not to use, or allow the use by any of its Representatives, any portion of the other party’s Evaluation\nMaterial for any purpose other than evaluating a possible Transaction (the “Purpose”). Thus, for example, the Recipient will not interfere with any\nbusiness of Discloser through the use of any Evaluation Material or knowledge acquired under this Agreement nor use any such Evaluation Material\nfor its own account other than for the Purpose. In furtherance of the Purpose and subject to the terms and conditions of this Agreement, each party\nagrees to make available to the other party certain Evaluation Material.\n3.0 OBLIGATIONS OF CONFIDENTIALITY; LIMITATION OF USE.\n3.1 Each party agrees to keep confidential, and not to disclose or allow disclosure by any of its Representatives to others of any portion of, the\nother party’s Evaluation Material, except as provided for in this Agreement and except to its Representatives on a need to know basis after they have\nbeen informed of and have agreed to abide by the confidentiality and use restrictions in this Agreement. Each party shall be responsible for any\nbreach of this Agreement by its Representatives or Affiliates. Recipient shall protect the Evaluation Material with at least the same standard of care\nas it exercises to protect its own confidential information of like importance, but in no event less than reasonable care.\n3.2 Without limiting Section 3.1 above, a party will not, nor will it allow any of its Representatives to, (except as provided for in this\nAgreement or as required by applicable law or legal process) disclose to any third party, any information regarding the Transaction or any\ninformation relating in any way to the Evaluation Material, including, without limitation (i) that any investigations, discussions or negotiations are\ntaking or have taken place concerning a possible Transaction, including the status thereof or the termination of such discussions or negotiations,\n(ii) any of the terms, conditions or other facts with respect to any such possible Transaction or its consideration of a possible Transaction, (iii) that\nthis Agreement exists, that Evaluation Material exist or has been requested or made available or (iv) any opinion or view with respect to the\nTransaction or the Evaluation Material.\n3.3 The Recipient will only make such number of copies of the Evaluation Material as are necessary for the Purpose. Recipient shall reproduce\nand include in all copies of Evaluation Material prepared by Recipient the copyright notices and proprietary legends of Discloser as they appear\ntherein as furnished to Recipient by Discloser. Recipient shall not remove any proprietary, copyright, mask work, trade secret or other legend from\nany form of Evaluation Material. The Recipient shall not attempt to reverse-engineer any Evaluation Material and/or tangible objects containing the\nEvaluation Material.\n3.4 Recipient shall have no obligation hereunder as to Evaluation Material that (i) is known to Recipient at the time of disclosure, as evidenced\nby written documentation or other reasonably convincing proof; (ii) the Recipient independently develops without use of Evaluation Material;\n(iii) becomes rightfully known to Recipient without, to the Recipient’s knowledge, any confidentiality obligation; or (iv) is or becomes publicly\nknown through no wrongful act or omission of the Recipient.\n3.5 Each party hereby acknowledges that it is aware, and further agrees that it will advise its Representatives, that US Federal and state\nsecurities laws limit the circumstances in which any person who has material, non-public information about a company from purchasing or selling\nsecurities of such a company and prohibit any such person from communicating such information to any other\nPage 1 of 4\nperson under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities or derivative securities\nrelating to such securities.\n4.0 TRANSACTION AGREEMENT. Each party agrees that no contract or agreement providing for a Transaction shall be deemed to exist\nbetween the parties and/or any of the parties’ stockholders unless and until a detailed definitive written agreement providing for a Transaction (a\n“Transaction Agreement”) has been executed and delivered by both parties, and each party hereby waives, in advance, any claims (including,\nwithout limitation, claims for breach of contract) in connection with any possible Transaction unless and until the parties shall have entered into such\ndefinitive Transaction Agreement. Each party also agrees that unless and until such definitive Transaction Agreement has been executed and\ndelivered by both parties, neither party has any legal obligation of any kind whatsoever with respect to any Transaction by virtue of this Agreement\nor any other written or oral expression with respect to such Transaction except, in the case of this Agreement, for the matters specifically agreed to\nherein. The term “Transaction Agreement” does not include an executed letter of intent or any other preliminary written agreement, nor does it\ninclude any written or oral acceptance of any offer or bid by any party.\n \n5.0 JUDICIAL OR GOVERNMENTAL DISCLOSURE. If any party or any of its Representatives becomes legally compelled (by judicial\nor governmental request, requirement or order, deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar\nprocess) to disclose any of the other party’s Evaluation Material, or is threatened to become so legally compelled, such party shall provide the other\nparty with prompt prior written notice so that the other party may attempt to prevent, and/or assist such party in its attempts to prevent, such legal\ncompulsion and such party may ultimately disclose only that portion of the other party’s Evaluation Material that is legally required and shall\nexercise best efforts to obtain assurance that confidential treatment will be accorded the other party’s Evaluation Material. In the event either party is\nadvised by counsel that such party is required by law to make any public disclosure otherwise prohibited by this Agreement, such party may make\nsuch public disclosure but shall give as much prior notice as is practicable to the other party and shall give the other party a reasonable opportunity to\ncomment on or to attempt to prevent the proposed disclosure.\n6.0 TERM; TERMINATION.\n6.1This Agreement shall terminate in its entirety one year after the date of this Agreement or, if earlier, upon the execution and delivery of a\nTransaction Agreement, unless the Transaction Agreement expressly otherwise provides.\n6.2 Either party may terminate this Agreement for any or no reason, by providing written notice of termination to the other party. The\nobligations of each of the parties under this Agreement shall remain in effect and survive any such termination for a period of three (3) years from\nthe date of this Agreement, except as otherwise stated in this Agreement.\n6.3 Each party agrees that if this Agreement is terminated or if the other party so requests in writing, Recipient shall promptly return to\nDiscloser (or at Recipient’s option destroy, subject to the next sentence of this Section, with such destruction to be certified to Discloser by an officer\nof Recipient) all copies of the Discloser’s Evaluation Material in its possession or in the possession of its Representatives. Notwithstanding the\nforegoing, Recipient may, pursuant to its standard retention policy, retain one archival copy and copies contained on routine back-ups of its email\nsystem subject to the confidentiality provisions of this Agreement.\n7.0 GENERAL.\n7.1. Assignment. Neither party may assign or transfer any of its rights or obligations under this Agreement.\n7.2 Waiver. No failure or delay by either party regarding any right, power or privilege hereunder shall operate as a waiver thereof and no single\nor partial exercise thereof shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\n7.3 No Other Rights. The Recipient does not acquire any license, rights or title in any Evaluation Material, except the limited right to use as\ndescribed above. The parties agree that nothing herein (i) requires the disclosure of any Evaluation Material to the other party or (ii) requires either\nparty to proceed with any transaction or relationship. Further, each party understands and acknowledges that neither party makes any representation\nor warranty, express or implied, as to the accuracy or completeness of the Evaluation Material exchanged. Evaluation Material IS DELIVERED “AS\nIS,” AND ALL REPRESENTATIVES AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING FITNESS FOR A PARTICULAR\nPURPOSE, MERCHANTABILITY AND NONINFRINGEMENT ARE HEREBY DISCLAIMED except that, as its sole representation and\nwarranty, Discloser represents and warrants that it and its Representatives may rightfully disclose and make available the Evaluation Material it\ndiscloses to the Recipient without violating any contractual, legal, fiduciary, or other obligation or restriction applicable to the Discloser. Each party\nagrees that neither party shall have any liability to the other party relating to or resulting from the use permitted under this Agreement of or reliance\nupon such other party’s Evaluation Material or any errors therein or omissions therefrom. Only those subsequent\nPage 2 of 4\nrepresentations or warranties, which are made in a final definitive agreement regarding a possible transaction or business combination, when, and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n7.4 No Agency. The parties hereto are independent contractors, and nothing herein shall be construed to create an agency, joint venture,\npartnership or other form of business association between the parties hereto.\n75. No Export. The parties agree to comply with all laws, rules and regulations applicable to the export or re-export of Evaluation Material,\nincluding obtaining any export licenses or other permissions required.\n7.6 Enforcement. Recipient acknowledges and agrees that in the event of an unauthorized use, reproduction, distribution or disclosure of any\nEvaluation Material, Discloser will not have an adequate remedy at law, and, therefore, injunctive or other equitable relief would be appropriate to\nrestrain such use, reproduction, distribution or disclosure, threatened or actual. Such remedy shall not be deemed to be the exclusive remedy for\nbreach of this Agreement, but shall be in addition to all other remedies available at law or equity to the Discloser.\n7.7. Notices. All notices or demands hereunder shall be in writing and sent to the other party and will be deemed delivered upon\nacknowledgment of receipt by the other party. Notices shall be sent to the addresses in the introduction or such other address as the parties provide\none another.\n7.8. Governing Law and Venue. This Agreement shall be governed by and interpreted in accordance with the laws of the state of Delaware.\nThe parties hereby submit to the jurisdiction of, and waive venue objections to, the Delaware Court of Chancery in the State of Delaware for the\npurposes of any action , suit, or proceeding arising out of or related to this Agreement and agree that they will commence any such matter in\nconnection with this Agreement only in such courts.\n7.9. Unenforceable Provisions. In the event that any provisions of this Agreement are held to be unenforceable, the remainder of this\nAgreement shall remain in full force and effect, and the parties agree to negotiate in good faith substitute enforceable provisions that most nearly\neffect the intent of the parties.\n8.0 COMPLETE AGREEMENT. This Agreement constitutes the entire agreement and understanding of the parties concerning its subject\nmatter, superseding all previous representations, agreements, and understandings, whether oral or written, relating to the subject matter hereof. Any\namendment to this Agreement shall be in a writing signed by both parties.\n9.0 STAND-STILL. Each party agrees that, until one year from the date of this Agreement, such party and its Representatives and its\n“Affiliates” as defined in the Securities Exchange Act of 1934, as amended (the “1934 Act”), will not in any manner, directly or indirectly, without\nthe prior written invitation or approval of the Board of Directors of the other party (a) effect or seek, offer or propose (whether publicly or otherwise)\nto effect, or cause or participate in or in any way knowingly assist any other person to effect or seek, offer or propose (whether publicly or otherwise)\nto effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof) or a material portion of the assets of the other party or\nany of its subsidiaries; (ii) any tender or exchange offer, merger or other business combination involving the other party or any of its subsidiaries;\n(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other party or any of its\nsubsidiaries; or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of\nthe other party or otherwise seek to advise or influence any person with respect to the voting of any securities of the other party; (b) form, join or in\nany way participate) in a “group” (as defined under the 1934 Act) in connection with any securities of the other party; (c) otherwise act, alone or in\nconcert with others, or seek to control or influence the Board of Directors or policies of the other party; (d) disclose any intention, plan or\narrangement inconsistent with the foregoing; (e) take any action which might force the other party to make a public announcement regarding any of\nthe types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing;\nprovided, however, that the foregoing obligations shall terminate as to a party if the other party publicly discloses that (a) it has entered into a merger\nagreement or an agreement for the sale of all or substantially all of that party’s assets with a third party which would result in that party’s\nstockholders receiving cash or stock of such third party in exchange for their shares or (b) the other party has endorsed or otherwise agreed to\nsupport the tender offer of a third party which if successful would result in the third party owning a majority of its outstanding stock. Except as\nprovided above, each party also agrees not to request the other party (or its Representatives) to amend or waive any provision of this paragraph.\nNotwithstanding the foregoing, (1) the Representative of party that is an investment banking., law, or independent accounting firm may after the\ntermination of this Agreement request that the other party consent that such firm may advise a third party with respect to the other party and not be in\nviolation of this Section 9 and the other party agrees in good faith to consider such request and (2) either party may vote shares of the other party\nacquired after the date of this Agreement with the approval of the other party.\n10.0 NON-SOLICITATION. Each party agrees not to solicit for employment any employees of the other party to whom such party may be\nintroduced or with whom such party otherwise had contact as a result of such party’s consideration of a Transaction until\nPage 3 of 4\none year from the date of this Agreement, provided that such party shall not be restricted in any general solicitation for employees (including through\nthe use of employment agencies) not specifically directed at any such persons, and provided further that such party shall not be restricted in hiring\nany such person who responds to any such general solicitation.\n11.0 ANTITRUST COMPLIANCE. As the parties may be deemed to be competitors in some product lines, they agree that disclosures of\ncompetitively sensitive Evaluation Material (e.g., information concerning prices, pricing plans and strategies, bidding and costs for competitive\nproduct lines) should not occur until the parties have determined based upon their due diligence that there is a reasonable likelihood that they will\nwant to engage in a Transaction and that such disclosure is necessary in order for the parties to evaluate the business and prospects and hence\nwhether to undertake a Transaction. The parties further agree that any such disclosures will be made only in accordance with applicable antitrust\nlaws. The parties understand that any Transaction may be subject to the US Hart-Scott-Rodino Act and require that Notification and Report Forms be\nsubmitted to the antitrust authorities. The parties further understand that the definitive agreement concerning a Transaction will contain further\nprovisions on the sharing of competitively sensitive Evaluation Material in order to ensure compliance with all applicable antitrust laws until the\nTransaction closes (or in the event the Transaction does not close). The parties may determine that, in order to evaluate the transaction under antitrust\nor competition laws, it would further their common interest to exchange more detailed information under appropriate conditions.\n12.0 ATTORNEY CLIENT PRIVILEGE. To the extent that any Evaluation Material may include material or information that is subject to\nthe attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or\ngovernmental investigations, the parties hereby agree and acknowledge that the sharing of such material is not intended to, and shall not, waive or\ndiminish in any way the confidentiality of such material or its continued privilege. Any Evaluation Material provided by Discloser that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection and nothing\nin this agreement shall obligate any party to reveal material or information that is subject to the attorney-client privilege, work product doctrine or\nother applicable privilege.\n“ON”\nBy: /s/ KEITH JACKSON\nKeith Jackson\nNAME (PRINT OR TYPE)\nCEO\nTITLE\n“COMPANY”\nBy: /s/ ROBERT V. DICKINSON\nRobert V. Dickinson\nNAME (PRINT OR TYPE)\nPresident and CEO\nTITLE\nPage 4 of 4 EX-99.(D)(4) 9 dex99d4.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (d)(4)\nMUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT\nThis MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT is made to be effective on 30th day of April, 2009, between California\nMicro Devices Corporation a Delaware corporation having its principal place of business at 490 N. McCarthy Blvd., #100, Milpitas, CA 95035\ntogether with its Affiliates (the "Company"), and ON Semiconductor Corporation, a Delaware corporation having its principal place of business at\n5005 East McDowell Road, Phoenix, AZ 85008 USA together with its Affiliates ("ON"). ON and the Company propose to enter into discussions\nconcerning a corporate strategic transaction in which ON would acquire the Company via merger (a "Transaction"). In these discussions, each party\n(the "Discloser"") will disclose information to the other party (the "Recipient").\n1.0 DEFINITIONS. The term "Evaluation Material" shall mean information relating to the Discloser provided to the Recipient, and any other\ninformation derived by the Recipient or its directors, officers, employees, financial advisors, independent auditors, legal counsel or other agents or\nrepresentatives engaged for the Purpose (its "Representatives") from the foregoing information related to the Discloser. The parties shall use\ncommercially reasonable efforts so that Evaluation Material provided in written form (including where provided in electronic or soft copy form) is\nlabeled as confidential or proprietary and Evaluation Material provided orally is designated as confidential or proprietary at the time of disclosure;\nprovided, however, that failure to do so shall not impact whether such information is Evaluation Material. "Affiliate" shall have the meaning given\nsuch term in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended (the "1934 Act").\n2.0 PURPOSE. Each party agrees not to use, or allow the use by any of its Representatives, any portion of the other party's Evaluation\nMaterial for any purpose other than evaluating a possible Transaction (the "Purpose"). Thus, for example, the Recipient will not interfere with any\nbusiness of Discloser through the use of any Evaluation Material or knowledge acquired under this Agreement nor use any such Evaluation Material\nfor its own account other than for the Purpose. In furtherance of the Purpose and subject to the terms and conditions of this Agreement, each party\nagrees to make available to the other party certain Evaluation Material.\n3.0 OBLIGATIONS OF CONFIDENTIALITY; LIMITATION OF USE.\n3.1 Each party agrees to keep confidential, and not to disclose or allow disclosure by any of its Representatives to others of any portion of, the\nother party's Evaluation Material, except as provided for in this Agreement and except to its Representatives on a need to know basis after they have\nbeen informed of and have agreed to abide by the confidentiality and use restrictions in this Agreement. Each party shall be responsible for any\nbreach of this Agreement by its Representatives or Affiliates. Recipient shall protect the Evaluation Material with at least the same standard of care\nas it exercises to protect its own confidential information of like importance, but in no event less than reasonable care.\n3.2 Without limiting Section 3.1 above, a party will not, nor will it allow any of its Representatives to, (except as provided for in this\nAgreement or as required by applicable law or legal process) disclose to any third party, any information regarding the Transaction or any\ninformation relating in any way to the Evaluation Material, including, without limitation (i) that any investigations, discussions or negotiations\nare\ntaking or have taken place concerning a possible Transaction, including the status thereof or the termination of such discussions or negotiations,\n(ii) any of the terms, conditions or other facts with respect to any such possible Transaction or its consideration of a possible Transaction, (iii) that\nthis Agreement exists, that Evaluation Material exist or has been requested or made available or (iv) any opinion or view with respect to the\nTransaction or the Evaluation Material.\n3.3 The Recipient will only make such number of copies of the Evaluation Material as are necessary for the Purpose. Recipient shall reproduce\nand include in all copies of Evaluation Material prepared by Recipient the copyright notices and proprietary legends of Discloser as they appear\ntherein as furnished to Recipient by Discloser. Recipient shall not remove any proprietary, copyright, mask work, trade secret or other legend from\nany form of Evaluation Material. The Recipient shall not attempt to reverse-engineer any Evaluation Material and/or tangible objects containing the\nEvaluation Material.\n3.4\nRecipient shall have no obligation hereunder as to Evaluation Material that (i) is known to Recipient at the time of disclosure,\nas\nevidenced\nby written documentation or other reasonably convincing proof; (ii) the Recipient independently develops without use of Evaluation Material;\n(iii) becomes rightfully known to Recipient without, to the Recipient's knowledge, any confidentiality obligation; or (iv) is or becomes publicly\nknown through no wrongful act or omission of the Recipient.\n3.5 Each party hereby acknowledges that it is aware, and further agrees that it will advise its Representatives, that US Federal and state\nsecurities laws limit the circumstances in which any person who has material, non-public information about a company from purchasing or selling\nsecurities of such a company and prohibit any such person from communicating such information to any other\nPage 1 of 4\nperson under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities or derivative securities\nrelating to such securities.\n4.0 TRANSACTION AGREEMENT. Each party agrees that no contract or agreement providing for a Transaction shall be deemed to exist\nbetween the parties and/or any of the parties' stockholders unless and until a detailed definitive written agreement providing for a Transaction (a\n"Transaction Agreement") has been executed and delivered by both parties, and each party hereby waives, in advance, any claims (including,\nwithout limitation, claims for breach of contract) in connection with any possible Transaction unless and until the parties shall have entered into such\ndefinitive Transaction Agreement. Each party also agrees that unless and until such definitive Transaction Agreement has been executed and\ndelivered by both parties, neither party has any legal obligation of any kind whatsoever with respect to any Transaction by virtue of this Agreement\nor any other written or oral expression with respect to such Transaction except, in the case of this Agreement, for the matters specifically agreed to\nherein. The term "Transaction Agreement" does not include an executed letter of intent or any other preliminary written agreement, nor does it\ninclude any written or oral acceptance of any offer or bid by any party.\n5.0 JUDICIAL OR GOVERNMENTAL DISCLOSURE. If any party or any of its Representatives becomes legally compelled (by judicial\nor governmental request, requirement or order, deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar\nprocess) to disclose any of the other party's Evaluation Material, or is threatened to become so legally compelled, such party shall provide the other\nparty with prompt prior written notice so that the other party may attempt to prevent, and/or assist such party in its attempts to prevent, such legal\ncompulsion and such party may ultimately disclose only that portion of the other party's Evaluation Material that is legally required and shall\nexercise best efforts to obtain assurance that confidential treatment will be accorded the other party's Evaluation Material. In the event either party is\nadvised by counsel that such party is required by law to make any public disclosure otherwise prohibited by this Agreement, such party may make\nsuch public disclosure but shall give as much prior notice as is practicable to the other party and shall give the other party a reasonable opportunity\nto\ncomment on or to attempt to prevent the proposed disclosure.\n6.0 TERM; TERMINATION.\n6.1This Agreement shall terminate in its entirety one year after the date of this Agreement or, if earlier, upon the execution and delivery of\na\nTransaction Agreement, unless the Transaction Agreement expressly otherwise provides.\n6.2 Either party may terminate this Agreement for any or no reason, by providing written notice of termination to the other party. The\nobligations of each of the parties under this Agreement shall remain in effect and survive any such termination for a period of three (3) years from\nthe date of this Agreement, except as otherwise stated in this Agreement.\n6.3 Each party agrees that if this Agreement is terminated or if the other party so requests in writing, Recipient shall promptly return to\nDiscloser (or at Recipient's option destroy, subject to the next sentence of this Section, with such destruction to be certified to Discloser by an officer\nof Recipient) all copies of the Discloser's Evaluation Material in its possession or in the possession of its Representatives. Notwithstanding the\nforegoing, Recipient may, pursuant to its standard retention policy, retain one archival copy and copies contained on routine back-ups of its email\nsystem subject to the confidentiality provisions of this Agreement.\n7.0 GENERAL.\n7.1. Assignment. Neither party may assign or transfer any of its rights or obligations under this Agreement.\n7.2 Waiver. No failure or delay by either party regarding any right, power or privilege hereunder shall operate as a waiver thereof and no single\nor\npartial exercise thereof shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\n7.3 No Other Rights. The Recipient does not acquire any license, rights or title in any Evaluation Material, except the limited right to use as\ndescribed above. The parties agree that nothing herein (i) requires the disclosure of any Evaluation Material to the other party or (ii) requires either\nparty to proceed with any transaction or relationship. Further, each party understands and acknowledges that neither party makes any representation\nor warranty, express or implied, as to the accuracy or completeness of the Evaluation Material exchanged. Evaluation Material IS DELIVERED "AS\nIS," AND ALL REPRESENTATIVES AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING FITNESS FOR A PARTICULAR\nPURPOSE, MERCHANTABILITY AND NONINFRINGEMENT ARE HEREBY DISCLAIMED except that, as its sole representation and\nwarranty, Discloser represents and warrants that it and its Representatives may rightfully disclose and make available the Evaluation Material\nit\ndiscloses to the Recipient without violating any contractual, legal, fiduciary, or other obligation or restriction applicable to the Discloser. Each party\nagrees that neither party shall have any liability to the other party relating to or resulting from the use permitted under this Agreement of or reliance\nupon such other party's Evaluation Material or any errors therein or omissions therefrom. Only those subsequent\nPage 2 of 4\nrepresentations or warranties, which are made in a final definitive agreement regarding a possible transaction or business combination, when, and\nif\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n7.4 No Agency. The parties hereto are independent contractors, and nothing herein shall be construed to create an agency, joint venture,\npartnership or other form of business association between the parties hereto.\n75. No Export. The parties agree to comply with all laws, rules and regulations applicable to the export or re-export of Evaluation Material,\nincluding obtaining any export licenses or other permissions required.\n7.6 Enforcement. Recipient acknowledges and agrees that in the event of an unauthorized use, reproduction, distribution or disclosure of any\nEvaluation Material, Discloser will not have an adequate remedy at law, and, therefore, injunctive or other equitable relief would be appropriate to\nrestrain such use, reproduction, distribution or disclosure, threatened or actual. Such remedy shall not be deemed to be the exclusive remedy for\nbreach of this Agreement, but shall be in addition to all other remedies available at law or equity to the Discloser.\n7.7. Notices. All notices or demands hereunder shall be in writing and sent to the other party and will be deemed delivered upon\nacknowledgment of receipt by the other party. Notices shall be sent to the addresses in the introduction or such other address as the parties provide\none another.\n7.8. Governing Law and Venue. This Agreement shall be governed by and interpreted in accordance with the laws of the state of Delaware.\nThe parties hereby submit to the jurisdiction of, and waive venue objections to, the Delaware Court of Chancery in the State of Delaware for the\npurposes of any action suit, or proceeding arising out of or related to this Agreement and agree that they will commence any such matter\nin\nconnection with this Agreement only in such courts.\n7.9. Unenforceable Provisions. In the event that any provisions of this Agreement are held to be unenforceable, the remainder of this\nAgreement shall remain in full force and effect, and the parties agree to negotiate in good faith substitute enforceable provisions that most nearly\neffect the intent of the parties.\n8.0 COMPLETE AGREEMENT. This Agreement constitutes the entire agreement and understanding of the parties concerning its subject\nmatter, superseding all previous representations, agreements, and understandings, whether oral or written, relating to the subject matter hereof. Any\namendment to this Agreement shall be in a writing signed by both parties.\n9.0 STAND-STILL. Each party agrees that, until one year from the date of this Agreement, such party and its Representatives and its\n"Affiliates" as defined in the Securities Exchange Act of 1934, as amended (the "1934 Act"), will not in any manner, directly or indirectly, without\nthe prior written invitation or approval of the Board of Directors of the other party (a) effect or seek, offer or propose (whether publicly or otherwise)\nto effect, or cause or participate in or in any way knowingly assist any other person to effect or seek, offer or propose (whether publicly or otherwise)\nto effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof) or a material portion of the assets of the other party or\nany of its subsidiaries; (ii) any tender or exchange offer, merger or other business combination involving the other party or any of its subsidiaries;\n(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other party or any of its\nsubsidiaries; or (iv) any "solicitation" of "proxies" (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of\nthe other party or otherwise seek to advise or influence any person with respect to the voting of any securities of the other party; (b) form, join or\nin\nany way participate) in a "group" (as defined under the 1934 Act) in connection with any securities of the other party; (c) otherwise act, alone or in\nconcert with others, or seek to control or influence the Board of Directors or policies of the other party; (d) disclose any intention, plan or\narrangement inconsistent with the foregoing; (e) take any action which might force the other party to make a public announcement regarding any of\nthe types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing;\nprovided, however, that the foregoing obligations shall terminate as to a party if the other party publicly discloses that (a) it has entered into a merger\nagreement or an agreement for the sale of all or substantially all of that party's assets with a third party which would result in that party's\nstockholders receiving cash or stock of such third party in exchange for their shares or (b) the other party has endorsed or otherwise agreed to\nsupport the tender offer of a third party which if successful would result in the third party owning a majority of its outstanding stock. Except as\nprovided above, each party also agrees not to request the other party (or its Representatives) to amend or waive any provision of this paragraph.\nNotwithstanding the foregoing, (1) the Representative of party that is an investment banking., law, or independent accounting firm may after the\ntermination of this Agreement request that the other party consent that such firm may advise a third party with respect to the other party and not\nbe\nin\nviolation of this Section 9 and the other party agrees in good faith to consider such request and (2) either party may vote shares of the other party\nacquired after the date of this Agreement with the approval of the other party.\n10.0 NON-SOLICITATION. Each party agrees not to solicit for employment any employees of the other party to whom such party may be\nintroduced or with whom such party otherwise had contact as a result of such party's consideration of a Transaction until\nPage 3 of 4\none year from the date of this Agreement, provided that such party shall not be restricted in any general solicitation for employees (including through\nthe use of employment agencies) not specifically directed at any such persons, and provided further that such party shall not be restricted in hiring\nany such person who responds to any such general solicitation.\n11.0 ANTITRUST COMPLIANCE. As the parties may be deemed to be competitors in some product lines, they agree that disclosures of\ncompetitively sensitive Evaluation Material (e.g., information concerning prices, pricing plans and strategies, bidding and costs for competitive\nproduct lines) should not occur until the parties have determined based upon their due diligence that there is a reasonable likelihood that they will\nwant to engage in a Transaction and that such disclosure is necessary in order for the parties to evaluate the business and prospects and hence\nwhether to undertake a Transaction. The parties further agree that any such disclosures will be made only in accordance with applicable antitrust\nlaws. The parties understand that any Transaction may be subject to the US Hart-Scott-Rodino Act and require that Notification and Report Forms be\nsubmitted to the antitrust authorities. The parties further understand that the definitive agreement concerning a Transaction will contain further\nprovisions on the sharing of competitively sensitive Evaluation Material in order to ensure compliance with all applicable antitrust laws until the\nTransaction closes (or in the event the Transaction does not close). The parties may determine that, in order to evaluate the transaction under antitrust\nor competition laws, it would further their common interest to exchange more detailed information under appropriate conditions.\n12.0 ATTORNEY CLIENT PRIVILEGE. To the extent that any Evaluation Material may include material or information that is subject to\nthe attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or\ngovernmental investigations, the parties hereby agree and acknowledge that the sharing of such material is not intended to, and shall not, waive\nor\ndiminish in any way the confidentiality of such material or its continued privilege. Any Evaluation Material provided by Discloser that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection and nothing\nin this agreement shall obligate any party to reveal material or information that is subject to the attorney-client privilege, work product doctrine or\nother applicable privilege.\n"ON"\nBy: /s/ KEITH JACKSON\nKeith Jackson\nNAME (PRINT OR TYPE)\nCEO\nTITLE\n"COMPANY"\nBy: /s/ ROBERT V. DICKINSON\nRobert V. Dickinson\nNAME (PRINT OR TYPE)\nPresident and CEO\nTITLE\nPage 4 of 4 EX-99.(D)(4) 9 dex99d4.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (d)(4)\nMUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT\nThis MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT is made to be effective on 30th day of April, 2009, between California\nMicro Devices Corporation , a Delaware corporation having its principal place of business at 490 N. McCarthy Blvd., #100, Milpitas, CA 95035\ntogether with its Affiliates (the “Company”), and ON Semiconductor Corporation, a Delaware corporation having its principal place of business at\n5005 East McDowell Road, Phoenix, AZ 85008 USA together with its Affiliates (“ON”). ON and the Company propose to enter into discussions\nconcerning a corporate strategic transaction in which ON would acquire the Company via merger (a “Transaction”). In these discussions, each party\n(the “Discloser’”) will disclose information to the other party (the “Recipient”).\n1.0 DEFINITIONS. The term “Evaluation Material” shall mean information relating to the Discloser provided to the Recipient, and any other\ninformation derived by the Recipient or its directors, officers, employees, financial advisors, independent auditors, legal counsel or other agents or\nrepresentatives engaged for the Purpose (its “Representatives”) from the foregoing information related to the Discloser. The parties shall use\ncommercially reasonable efforts so that Evaluation Material provided in written form (including where provided in electronic or soft copy form) is\nlabeled as confidential or proprietary and Evaluation Material provided orally is designated as confidential or proprietary at the time of disclosure;\nprovided, however, that failure to do so shall not impact whether such information is Evaluation Material. “Affiliate” shall have the meaning given\nsuch term in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended (the “1934 Act”).\n2.0 PURPOSE. Each party agrees not to use, or allow the use by any of its Representatives, any portion of the other party’s Evaluation\nMaterial for any purpose other than evaluating a possible Transaction (the “Purpose”). Thus, for example, the Recipient will not interfere with any\nbusiness of Discloser through the use of any Evaluation Material or knowledge acquired under this Agreement nor use any such Evaluation Material\nfor its own account other than for the Purpose. In furtherance of the Purpose and subject to the terms and conditions of this Agreement, each party\nagrees to make available to the other party certain Evaluation Material.\n3.0 OBLIGATIONS OF CONFIDENTIALITY; LIMITATION OF USE.\n3.1 Each party agrees to keep confidential, and not to disclose or allow disclosure by any of its Representatives to others of any portion of, the\nother party’s Evaluation Material, except as provided for in this Agreement and except to its Representatives on a need to know basis after they have\nbeen informed of and have agreed to abide by the confidentiality and use restrictions in this Agreement. Each party shall be responsible for any\nbreach of this Agreement by its Representatives or Affiliates. Recipient shall protect the Evaluation Material with at least the same standard of care\nas it exercises to protect its own confidential information of like importance, but in no event less than reasonable care.\n3.2 Without limiting Section 3.1 above, a party will not, nor will it allow any of its Representatives to, (except as provided for in this\nAgreement or as required by applicable law or legal process) disclose to any third party, any information regarding the Transaction or any\ninformation relating in any way to the Evaluation Material, including, without limitation (i) that any investigations, discussions or negotiations are\ntaking or have taken place concerning a possible Transaction, including the status thereof or the termination of such discussions or negotiations,\n(ii) any of the terms, conditions or other facts with respect to any such possible Transaction or its consideration of a possible Transaction, (iii) that\nthis Agreement exists, that Evaluation Material exist or has been requested or made available or (iv) any opinion or view with respect to the\nTransaction or the Evaluation Material.\n3.3 The Recipient will only make such number of copies of the Evaluation Material as are necessary for the Purpose. Recipient shall reproduce\nand include in all copies of Evaluation Material prepared by Recipient the copyright notices and proprietary legends of Discloser as they appear\ntherein as furnished to Recipient by Discloser. Recipient shall not remove any proprietary, copyright, mask work, trade secret or other legend from\nany form of Evaluation Material. The Recipient shall not attempt to reverse-engineer any Evaluation Material and/or tangible objects containing the\nEvaluation Material.\n3.4 Recipient shall have no obligation hereunder as to Evaluation Material that (i) is known to Recipient at the time of disclosure, as evidenced\nby written documentation or other reasonably convincing proof; (ii) the Recipient independently develops without use of Evaluation Material;\n(iii) becomes rightfully known to Recipient without, to the Recipient’s knowledge, any confidentiality obligation; or (iv) is or becomes publicly\nknown through no wrongful act or omission of the Recipient.\n3.5 Each party hereby acknowledges that it is aware, and further agrees that it will advise its Representatives, that US Federal and state\nsecurities laws limit the circumstances in which any person who has material, non-public information about a company from purchasing or selling\nsecurities of such a company and prohibit any such person from communicating such information to any other\nPage1of4\nperson under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities or derivative securities\nrelating to such securities.\n4.0 TRANSACTION AGREEMENT. Each party agrees that no contract or agreement providing for a Transaction shall be deemed to exist\nbetween the parties and/or any of the parties’ stockholders unless and until a detailed definitive written agreement providing for a Transaction (a\n“Transaction Agreement”) has been executed and delivered by both parties, and each party hereby waives, in advance, any claims (including,\nwithout limitation, claims for breach of contract) in connection with any possible Transaction unless and until the parties shall have entered into such\ndefinitive Transaction Agreement. Each party also agrees that unless and until such definitive Transaction Agreement has been executed and\ndelivered by both parties, neither party has any legal obligation of any kind whatsoever with respect to any Transaction by virtue of this Agreement\nor any other written or oral expression with respect to such Transaction except, in the case of this Agreement, for the matters specifically agreed to\nherein. The term “Transaction Agreement” does not include an executed letter of intent or any other preliminary written agreement, nor does it\ninclude any written or oral acceptance of any offer or bid by any party.\n5.0 JUDICIAL OR GOVERNMENTAL DISCLOSURE. If any party or any of its Representatives becomes legally compelled (by judicial\nor governmental request, requirement or order, deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar\nprocess) to disclose any of the other party’s Evaluation Material, or is threatened to become so legally compelled, such party shall provide the other\nparty with prompt prior written notice so that the other party may attempt to prevent, and/or assist such party in its attempts to prevent, such legal\ncompulsion and such party may ultimately disclose only that portion of the other party’s Evaluation Material that is legally required and shall\nexercise best efforts to obtain assurance that confidential treatment will be accorded the other party’s Evaluation Material. In the event either party is\nadvised by counsel that such party is required by law to make any public disclosure otherwise prohibited by this Agreement, such party may make\nsuch public disclosure but shall give as much prior notice as is practicable to the other party and shall give the other party a reasonable opportunity to\ncomment on or to attempt to prevent the proposed disclosure.\n6.0 TERM; TERMINATION.\n6.1This Agreement shall terminate in its entirety one year after the date of this Agreement or, if earlier, upon the execution and delivery of a\nTransaction Agreement, unless the Transaction Agreement expressly otherwise provides.\n6.2 Either party may terminate this Agreement for any or no reason, by providing written notice of termination to the other party. The\nobligations of each of the parties under this Agreement shall remain in effect and survive any such termination for a period of three (3) years from\nthe date of this Agreement, except as otherwise stated in this Agreement.\n6.3 Each party agrees that if this Agreement is terminated or if the other party so requests in writing, Recipient shall promptly return to\nDiscloser (or at Recipient’s option destroy, subject to the next sentence of this Section, with such destruction to be certified to Discloser by an officer\nof Recipient) all copies of the Discloser’s Evaluation Material in its possession or in the possession of its Representatives. Notwithstanding the\nforegoing, Recipient may, pursuant to its standard retention policy, retain one archival copy and copies contained on routine back-ups of its email\nsystem subject to the confidentiality provisions of this Agreement.\n7.0 GENERAL.\n7.1. Assignment. Neither party may assign or transfer any of its rights or obligations under this Agreement.\n7.2 Waiver. No failure or delay by either party regarding any right, power or privilege hereunder shall operate as a waiver thereof and no single\nor partial exercise thereof shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\n7.3 No Other Rights. The Recipient does not acquire any license, rights or title in any Evaluation Material, except the limited right to use as\ndescribed above. The parties agree that nothing herein (i) requires the disclosure of any Evaluation Material to the other party or (ii) requires either\nparty to proceed with any transaction or relationship. Further, each party understands and acknowledges that neither party makes any representation\nor warranty, express or implied, as to the accuracy or completeness of the Evaluation Material exchanged. Evaluation Material IS DELIVERED “AS\nIS,” AND ALL REPRESENTATIVES AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING FITNESS FOR A PARTICULAR\nPURPOSE, MERCHANTABILITY AND NONINFRINGEMENT ARE HEREBY DISCLAIMED except that, as its sole representation and\nwarranty, Discloser represents and warrants that it and its Representatives may rightfully disclose and make available the Evaluation Material it\ndiscloses to the Recipient without violating any contractual, legal, fiduciary, or other obligation or restriction applicable to the Discloser. Each party\nagrees that neither party shall have any liability to the other party relating to or resulting from the use permitted under this Agreement of or reliance\nupon such other party’s Evaluation Material or any errors therein or omissions therefrom. Only those subsequent\nPage2of4\nrepresentations or warranties, which are made in a final definitive agreement regarding a possible transaction or business combination, when, and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n7.4 No Agency. The parties hereto are independent contractors, and nothing herein shall be construed to create an agency, joint venture,\npartnership or other form of business association between the parties hereto.\n75. No Export. The parties agree to comply with all laws, rules and regulations applicable to the export or re-export of Evaluation Material,\nincluding obtaining any export licenses or other permissions required.\n7.6 Enforcement. Recipient acknowledges and agrees that in the event of an unauthorized use, reproduction, distribution or disclosure of any\nEvaluation Material, Discloser will not have an adequate remedy at law, and, therefore, injunctive or other equitable relief would be appropriate to\nrestrain such use, reproduction, distribution or disclosure, threatened or actual. Such remedy shall not be deemed to be the exclusive remedy for\nbreach of this Agreement, but shall be in addition to all other remedies available at law or equity to the Discloser.\n7.7. Notices. All notices or demands hereunder shall be in writing and sent to the other party and will be deemed delivered upon\nacknowledgment of receipt by the other party. Notices shall be sent to the addresses in the introduction or such other address as the parties provide\none another.\n7.8. Governing Law and Venue. This Agreement shall be governed by and interpreted in accordance with the laws of the state of Delaware.\nThe parties hereby submit to the jurisdiction of, and waive venue objections to, the Delaware Court of Chancery in the State of Delaware for the\npurposes of any action , suit, or proceeding arising out of or related to this Agreement and agree that they will commence any such matter in\nconnection with this Agreement only in such courts.\n7.9. Unenforceable Provisions. In the event that any provisions of this Agreement are held to be unenforceable, the remainder of this\nAgreement shall remain in full force and effect, and the parties agree to negotiate in good faith substitute enforceable provisions that most nearly\neffect the intent of the parties.\n8.0 COMPLETE AGREEMENT. This Agreement constitutes the entire agreement and understanding of the parties concerning its subject\nmatter, superseding all previous representations, agreements, and understandings, whether oral or written, relating to the subject matter hereof. Any\namendment to this Agreement shall be in a writing signed by both parties.\n9.0 STAND-STILL. Each party agrees that, until one year from the date of this Agreement, such party and its Representatives and its\n“Affiliates” as defined in the Securities Exchange Act of 1934, as amended (the “1934 Act”), will not in any manner, directly or indirectly, without\nthe prior written invitation or approval of the Board of Directors of the other party (a) effect or seek, offer or propose (whether publicly or otherwise)\nto effect, or cause or participate in or in any way knowingly assist any other person to effect or seek, offer or propose (whether publicly or otherwise)\nto effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof) or a material portion of the assets of the other party or\nany of its subsidiaries; (ii) any tender or exchange offer, merger or other business combination involving the other party or any of its subsidiaries;\n(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other party or any of its\nsubsidiaries; or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of\nthe other party or otherwise seek to advise or influence any person with respect to the voting of any securities of the other party; (b) form, join or in\nany way participate) in a “group” (as defined under the 1934 Act) in connection with any securities of the other party; (c) otherwise act, alone or in\nconcert with others, or seek to control or influence the Board of Directors or policies of the other party; (d) disclose any intention, plan or\narrangement inconsistent with the foregoing; (e) take any action which might force the other party to make a public announcement regarding any of\nthe types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing;\nprovided, however, that the foregoing obligations shall terminate as to a party if the other party publicly discloses that (a) it has entered into a merger\nagreement or an agreement for the sale of all or substantially all of that party’s assets with a third party which would result in that party’s\nstockholders receiving cash or stock of such third party in exchange for their shares or (b) the other party has endorsed or otherwise agreed to\nsupport the tender offer of a third party which if successful would result in the third party owning a majority of its outstanding stock. Except as\nprovided above, each party also agrees not to request the other party (or its Representatives) to amend or waive any provision of this paragraph.\nNotwithstanding the foregoing, (1) the Representative of party that is an investment banking., law, or independent accounting firm may after the\ntermination of this Agreement request that the other party consent that such firm may advise a third party with respect to the other party and not be in\nviolation of this Section 9 and the other party agrees in good faith to consider such request and (2) either party may vote shares of the other party\nacquired after the date of this Agreement with the approval of the other party.\n10.0 NON-SOLICITATION. Each party agrees not to solicit for employment any employees of the other party to whom such party may be\nintroduced or with whom such party otherwise had contact as a result of such party’s consideration of a Transaction until\nPage3of4\none year from the date of this Agreement, provided that such party shall not be restricted in any general solicitation for employees (including through\nthe use of employment agencies) not specifically directed at any such persons, and provided further that such party shall not be restricted in hiring\nany such person who responds to any such general solicitation.\n11.0 ANTITRUST COMPLIANCE. As the parties may be deemed to be competitors in some product lines, they agree that disclosures of\ncompetitively sensitive Evaluation Material (e.g ., information concerning prices, pricing plans and strategies, bidding and costs for competitive\nproduct lines) should not occur until the parties have determined based upon their due diligence that there is a reasonable likelihood that they will\nwant to engage in a Transaction and that such disclosure is necessary in order for the parties to evaluate the business and prospects and hence\nwhether to undertake a Transaction. The parties further agree that any such disclosures will be made only in accordance with applicable antitrust\nlaws. The parties understand that any Transaction may be subject to the US Hart-Scott-Rodino Act and require that Notification and Report Forms be\nsubmitted to the antitrust authorities. The parties further understand that the definitive agreement concerning a Transaction will contain further\nprovisions on the sharing of competitively sensitive Evaluation Material in order to ensure compliance with all applicable antitrust laws until the\nTransaction closes (or in the event the Transaction does not close). The parties may determine that, in order to evaluate the transaction under antitrust\nor competition laws, it would further their common interest to exchange more detailed information under appropriate conditions.\n12.0 ATTORNEY CLIENT PRIVILEGE. To the extent that any Evaluation Material may include material or information that is subject to\nthe attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or\ngovernmental investigations, the parties hereby agree and acknowledge that the sharing of such material is not intended to, and shall not, waive or\ndiminish in any way the confidentiality of such material or its continued privilege. Any Evaluation Material provided by Discloser that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection and nothing\nin this agreement shall obligate any party to reveal material or information that is subject to the attorney-client privilege, work product doctrine or\nother applicable privilege.\n“ON”\nBy: /s/ KEITH JACKSON\nKeith Jackson\nNAME (PRINT OR TYPE)\nCEO\nTITLE\n“COMPANY”\nBy: /s/ ROBERT V. DICKINSON\nRobert V. Dickinson\nNAME (PRINT OR TYPE)\nPresident and CEO\nTITLE\nPage4of4 14b0b2208aaab4da5388590f9ed8e03c.pdf effective_date jurisdiction party term EX-10 .2 3 ex10-2.htm EXHIBIT 10.2\nExhibit 10.2\nEXHIBIT A\nCONFIDENTIAL INFORMATION, NON-DISCLOSURE, NON-SOLICITATION,\nNON-COMPETE, AND RIGHTS TO INTELLECTUAL PROPERTY AGREEMENT\nThis CONFIDENTIAL INFORMATION, NON-DISCLOSURE, NON-SOLICITATION, NON-COMPETE, AND RIGHTS\nTO INTELLECTUAL PROPERTY AGREEMENT (hereinafter this “Agreement” or this “Confidentiality Agreement”) is made as of June 22,\n2016, by and between Nat Krishnamurti, who currently resides at [ ] (“Employee”) and Interpace Diagnostics Group, Inc. (formerly PDI,\nInc. and hereinafter together with PDI, Inc., Interpace Diagnostics Corporation, and Interpace Diagnostics, LLC referred to as “Employer”),\nhaving its principal place of business at Morris Corporate Center 1-Building A/B, 300 Interpace Parkway, Parsippany, New Jersey 07054\n(collectively the “Parties”).\nWHEREAS, Employee is presently serving and continues to serve as Chief Financial Officer, Treasurer, and Secretary of\nEmployer;\nWHEREAS, Employer will continue to employ Employee in a position of trust and confidence to aid Employer in its\nBusiness;\nWHEREAS, Employer desires to receive from Employee a covenant not to disclose certain information relating to\nEmployer ’s Business and certain other covenants;\nWHEREAS, as a material inducement to Employer to employ and continue to employ Employee and pay Employee salary\nand other remuneration and benefits during his employment, Employee has agreed to such covenants; and\nWHEREAS, Employer and Employee desire to set forth, in writing, the terms and conditions of their agreements and\nunderstandings with respect to such covenants.\nNOW, THEREFORE, in consideration of the foregoing, of the mutual promises herein contained, and for other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto intending to be legally bound, agree as\nfollows:\n1. Business. For purposes of this Agreement, the Business of Employer consists of developing and conducting molecular\ndiagnostic testing to assist in the treatment of pancreatic, biliary, esophageal and thyroid cancers (the “Business”). The Business is highly\ncompetitive and specialized involving highly sensitive information.\n2. Employer. As used herein, the term “Employer” shall mean Interpace Diagnostics Group, Inc. (formerly and including\nPDI, Inc.); Interpace Diagnostics, LLC; Interpace Diagnostics Corporation; and any and all related or affiliated entities, including, but not\nlimited to any other business entity which is, was, or becomes a predecessor, subsidiary, or parent of the above-listed entities and/or which is,\nwas, or becomes an affiliate of one or more of the above-listed entities by virtue of common (although not identical) ownership and for which\nEmployee is providing services in any form during his employment with Employer.\n1\n3. Notice.\nAny notice required to, or permitted to, be given hereunder shall be sufficient if in writing (a) delivered\npersonally, (b) sent by first class certified mail, return receipt requested, postage and fees prepaid, or (c) sent by prepaid overnight delivery\nservice, to the parties at the following addresses (or at such other addresses as shall be specified by the parties in a like notice):\nIf to Employer:\nInterpace Diagnostics Group, Inc.\nMorris Corporate Center I\nBuilding A/B\n300 Interpace Parkway\nParsippany, New Jersey 07054\nAttn.: Chief Executive Officer\nIf to Employee:\nNat Krishnamurti\n[]\n[]\nAll notices shall be deemed to have been given upon receipt if delivered personally, or by recognized overnight courier, or five\n(5) days after mailing if mailed.\n4.\nConfidential Information, Non-Disclosure. Employee understands and recognizes that in his position as Chief\nFinancial Officer, Treasurer, and Secretary of Employer, he has been and will be afforded substantial access to Confidential Information (as that\nterm is defined below) the unauthorized use, disclosure and/or publication of which would cause Employer to suffer substantial damage to and\ninterfere with the current or contemplated Business of Employer and cause irreparable injury to Employer. Employee further understands and\nrecognizes, therefore, that it is in Employer’s legitimate business interest to restrict Employee’s use of Confidential Information for any purposes\nother than the discharge of Employee’s duties at Employer in furtherance of the Business, and to limit any potential appropriation of\nConfidential Information by Employee for the benefit of Employer’s competitors and to the detriment of Employer. Accordingly, Employee\nagrees as follows:\na. During and after Employee’s employment with Employer, Employee will not, without the prior written consent\nof Employer, or as may otherwise be required by law or legal process, communicate or disclose to any other person or company, or use for\nEmployee’s own personal benefit, except as may be necessary in the performance of Employee’s duties as an employee of Employer, any\nConfidential Information disclosed to him or of which Employee became aware or developed or was given access to by reason of Employee’s\nemployment or association with Employer.\nb. The term “Confidential Information” means any and all data and information relating to Employer and/or its\nBusiness (whether or not it constitutes a trade secret) or data and information received by Employer from third parties including, but not limited\nto, customers, clients, patients and business partners in confidence (or subject to a Non-Disclosure covenant), which is, or has been, disclosed to\nEmployee or of which Employee became or becomes aware as a consequence of his employment relationship with Employer, and which has\nvalue to Employer and is not generally known by Employer’s competitors including, but not limited to, information concerning Employer’s\nbusiness, and information of third parties, which Employer is required to maintain as confidential. Confidential Information shall not include\nany data or information that has been disclosed voluntarily to the public by Employer (except when such public disclosure has been made by\nEmployee or some other person without authorization from Employer), or that has been independently developed and disclosed by others, or\nthat otherwise enters the public domain through lawful and legitimate means.\n2\nEmployee hereby expressly agrees that Confidential Information is the exclusive property of Employer, to be held by\nEmployee in trust and solely for Employer’s benefit and shall not be used by Employee or disclosed by Employee to others, either during or\nafter Employee’s employment without Employer’s advance written consent, except where required for Employee to properly perform\nEmployee’s job duties for Employer. This promise is binding on Employee regardless of the reason(s) for the termination of Employee’s\nemployment. Employee further agrees to comply with all rules, policies and procedures established by Employer from time-to-time, which are\ndesigned to protect and ensure the continued confidentiality of the Confidential Information and all applicable law.\nc. Employee understands and agrees that upon termination of Employee’s employment with Employer, Employee\nwill not take with him, or retain, without written authorization from Employer, any documents, files or other property of Employer, and\nEmployee will promptly return to Employer any such documents, files or property in his possession or control, including all copies, extracts,\nreproductions or notes, as may have been made by or on behalf of Employee. If Employee has stored Confidential Information on any personal\ndesktop or laptop devices, Personal Digital Assistants (“PDAs”), mobile/smart phones, external hard drives, “flash” or similar USB storages\ndevices, Fire Wire storage devices, digital music players, digital tapes, floppy diskettes, CDs, DVDs, memory cards, zip diskettes, as well as\nmaintained in personal e-mail accounts (including web based e-mail accounts such as Hotmail, Gmail, Yahoo, etc.) and other electronic or\nonline communications applications, such as text messaging, social media networks (i.e . Facebook, LinkedIn, My Space, etc.), chat rooms and\nsimilar environments and all other media, which can be utilized to store or transmit electronic data and communications (regardless of whether\nthe media utilized is owned by Employer, Employee or a third party, or where the media is located) then Employee must make those devices\navailable to Employer or provide access to those accounts or communications in order to enable Employer to search for such Confidential\nInformation and to remove and/or make complete copies of the media/communications and all information stored to the extent permitted by law\nor to the extent not permitted by law to otherwise arrange for the return and/or removal of such Confidential Information to Employer, as\nappropriate.\nEmployee acknowledges and agrees that this list is not comprehensive and includes technological advancements in methods,\ndevices and locations for storing and communicating data that could include Confidential Information covered by this provision. For this\npurpose, Employee agrees that he has no expectation of privacy with respect to the various media and communications referred to above, except\nto the extent otherwise provided by law.\n3\nIn connection with this Confidentiality Agreement, Employee recognizes that all documents, files and property, which\nEmployee has received or will receive from Employer, including, but not limited to, handbooks, memoranda, policy manuals, product\nspecifications and other materials, with the exception of documents relating to benefits to which Employee might be entitled following the\ntermination of his employment with Employer, are for the exclusive use of Employer and employees discharging their responsibilities on behalf\nof Employer, and that Employee has no claim or right to the continued use, possession or custody of such material following the termination of\nhis employment with Employer.\nIf Employee becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative\ndemand or similar process) to disclose any Confidential Information, Employee shall provide Employer with prompt written notice of such\nrequirement so Employer may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Paragraph 4\nof this Confidentiality Agreement. If such protective order or other remedy is not obtained, or Employer waives compliance with the provisions\nof this Paragraph 4, Employee agrees to furnish only that portion of the Confidential Information, which he is advised by written opinion of\nlegal counsel is legally required and to exercise best efforts to obtain assurances that confidential treatment will be accorded such Confidential\nInformation.\n5. Non-Solicitation. Except as otherwise approved in writing by Employer, Employee agrees that Employee will not,\ndirectly or indirectly, with or through any family member, or former directors, officers or employees of Employer, or acting alone or as a\nmember of a partnership or limited liability company or as an officer, holder of or investor in as much as five (5%) percent of any security of\nany class, director, employee, consultant or representative of any corporation or other business entity at any time during Employee’s\nemployment with Employer, and for a period of two (2) years following cessation of Employee’s employment with Employer for any reason,\ninterfere with, or seek to interfere with the relationship or otherwise alter, limit or terminate such relationship between Employer and the\nfollowing: (a) any employee of Employer or any person who was employed by Employer at any time within one (1) year prior to the cessation\nof Employee’s employment with Employer, which prohibited interference includes inducing or attempting to induce any person to leave\nemployment with Employer or hiring any such person; (b) any of the customers or clients of Employer then existing or existing at any time\nwithin one (1) year prior to the cessation of Employee’s employment with Employer with which Employee personally had contact or access to\nConfidential Information about, or (c) any of the suppliers or licensees of Employer, then existing or existing at any time within one (1) year\nprior to cessation of Employee’s employment with Employer.\n6.\nNon-Competition.\nIt is recognized and understood by the parties hereto that Employee, through Employee’s\nassociation with Employer, has acquired and shall continue to acquire a considerable amount of knowledge and goodwill with respect to the\nBusiness of Employer, as well as access to Employer’s clients and customers, which knowledge, goodwill and relationships are extremely\nvaluable to Employer and which would be extremely detrimental to Employer if used by Employee to compete with Employer. It is therefore\nunderstood and agreed to by the parties hereto that because of the nature of the Business of Employer, it is necessary to afford fair protection to\nEmployer from competition by Employee. Consequently, as a material inducement to employ and continue to employ Employee, Employee\ncovenants and agrees that he will not, directly or indirectly, with or through any family member, or former director, officer or employee of\nEmployer, or acting alone or as a member of a partnership or limited liability company, or as an officer of or investor in as much as five (5%)\npercent of any security of any class, director, employee, consultant or representative of any corporation or other business entity at any time while\nemployed by Employer, and for a period of one (1) year following cessation of Employee’s employment with Employer for any reason, own,\nmanage, operate, control, consult with, or be employed by or with any person, firm, partnership, association, corporation or other business entity\nwhich competes with Employer or performs services which are substantially similar to its Business in the United States of America.\n4\n7. Rights to Intellectual Property. All inventions, improvements, modifications, ideas, styles, trade names and the like,\nwhether or not reduced to writing or stored electronically or otherwise and whether or not protectable by patent, trademark, copyright or other\nintellectual property law, which relate or are susceptible for use directly or indirectly in Employer ’s Business that are originated in whole, or in\npart, by Employee (alone or jointly with others) during his term of employment with Employer, irrespective of whether they were conceived,\ndeveloped, suggested or perfected (i) during Employee’s regular working hours, (ii) with the use of Employer ’s time, materials or facilities or\n(iii) within one (1) year following the termination of Employee’s employment with Employer or otherwise attributable to Employee’s\nemployment with Employer shall become and remain the exclusive property of Employer. If any one or more of the aforementioned are deemed\nin any way to fall within the definition of “work made for hire,” as such term is defined in 17 U.S.C. §101, such work shall be considered a\n“work made for hire,” the copyright of which shall be owned solely by, or assigned or transferred completely and exclusively to Employer. At\nthe request and expense of Employer, Employee shall cooperate with Employer, in applying for, prosecuting, and obtaining patent, trademark,\nservice mark, trade name and copyright registrations in the name of Employer.\nEmployee shall promptly disclose, grant and assign ownership to Employer, for its sole use and benefit, any and all inventions,\nimprovements, information and copyrights (whether patentable or not), which he may develop, acquire, conceive or reduce to practice, while\nemployed by Employer (whether or not during usual working hours) together with all patent applications, letters, patent, copyrights and reissues\nthereof, that may at any time be granted for or upon any such invention, improvement or information; provided, however, that Employee shall\nown any invention, which Employee can demonstrate has no relationship to the Business, and which was neither conceived, nor made by use of\nany of the time, facilities or materials of Employer. In connection therewith:\na.\nEmployee shall without charge, but at the expense of Employer, promptly at all times thereafter execute and\ndeliver such applications, assignments, descriptions and other instruments, as may be reasonably necessary or proper in the opinion of Employer\nto vest title to any such inventions, improvements, technical information, patent applications, patents, copyrights or reissues thereof in\nEmployer, and to enable it to obtain and maintain the entire right and title thereto throughout the world; and\nb. Employee shall render to Employer at its expense (including reimbursement to Employee of reasonable out-of-\npocket expenses incurred by Employee and a reasonable payment for Employee’s time involved in case he is not then in its employ) all such\nassistance as it may require in the prosecution of applications for said patents, copyright or reissues thereof, in the prosecution, or defense of\ninterferences, which may be declared involving any said applications, patents or copyrights and in any litigation in which Employer may be\ninvolved relating to any such patents, inventions, improvements or technical improvements.\n5\nIn the event that Employer is unable to, after reasonable effort, secure Employee’s signature on any document(s) needed to\napply for or secure any copyright or patent, for any reason whatsoever, Employee hereby designates Employer, and its duly authorized officers\nand agents, as Employee’s agent and attorney-in-fact to execute and file any such application(s), and to perform all other legally permitted acts\nto further the prosecution and issuance of copyrights and patents, or similar protection thereon, which shall have the same legal form and effect\nas if executed by Employee.\nEmployee hereby represents and warrants that Employee has fully described to Employer on Schedule A appended hereto any\nidea, invention, product, improvement, computer software program or other equipment or technology related to the Business of Employer\n(“Inventions”), not covered in this Paragraph 7, which prior to his employment with Employer, Employee conceived of or developed, wholly or\nin part, and in which Employee has any right, title or proprietary interest, and whether directly related to Employer’s Business, but which has not\nbeen published or filed with the United States Patent and Trademark or Copyright Offices or any other patent or copyright office or assigned or\ntransferred to Employer. If there is no such Schedule A, Employee represents that Employee has made no such Inventions at the time of signing\nthis Agreement or Employee hereby assigns such Inventions to Employer.\nWith respect to this Paragraph 7, it is agreed and acknowledged that during Employee’s employment, Employer may enter\nother lines of business, which are related or unrelated to its Business, in which case this Agreement would be expanded to cover such new lines\nof business.\nIn the event that Employer gives written notice to Employee that Employer elects not to apply for a patent in a jurisdiction for\nan item above, which is patentable then Employee may, at his own cost and expense, apply for a patent therefor in his own name in such\njurisdiction.\n8. Reasonableness of Restrictions.\na.\nEmployee has carefully read and considered the provisions of Paragraphs 4 through 7 hereof, and having done\nso agrees that the restrictions set forth therein are fair and reasonable and are reasonably required for the protection of the interests of Employer,\nits stockholders, directors, officers, employees, and successors and assigns and that Employer would not have employed Employee in the\nabsence of agreement to such restrictions and that any violation of any provisions of Paragraphs 4 through 7 will result in irreparable injury to\nEmployer. Employee further represents and acknowledges that (i) Employee has been advised by Employer to consult his counsel prior to\nexecution and delivery of this Agreement, and (ii) that Employee has had full opportunity, prior to execution and delivery of this Agreement, to\nreview thoroughly this Agreement with his counsel.\n6\nEmployee further understands and agrees that Employer shall be entitled to preliminary and permanent injunctive relief,\nwithout the necessity of proving actual damages, as well as an equitable accounting of all earnings, profits and other benefit, arising from any\nviolation of Paragraphs 4 through 7, which rights shall be cumulative, and in addition to any other rights or remedies to which Employer may be\nentitled hereunder or now or hereafter existing in law or equity. No delay or omission by a party hereto in exercising any right, remedy or power\nhereunder or existing at law or in equity shall be construed as a waiver thereof.\nb. To the extent any portion of any provision of this Agreement is held to be invalid or unenforceable, the language\nshall be construed by limiting and/or reducing it so as to be enforceable to the extent compatible with applicable law. All remaining provisions\nand/or portions thereof shall remain in full force and effect.\n9. Binding Effect. This Agreement shall be binding upon and inure to the benefit of and be enforceable by Employer and its\nsuccessors and assigns, and shall be binding upon and inure to the benefit of and be enforceable by Employee and his estate, heirs,\nadministrators and legal representatives. This Agreement is not assignable by Employee but is assignable by Employer to any successor to all, or\nsubstantially all, of its Business, assets or other reorganization to which it may become a party, provided that, such assignee assumes all of the\nobligations of Employer hereunder.\n10.\nEntire Agreement and Amendment. This Agreement constitutes the entire agreement between Employer and\nEmployee with respect to the restrictive covenants set forth in Paragraphs 4 through 7 of this Agreement and supersedes all prior agreements,\nwritten or oral with respect thereto. This Agreement cannot be changed or modified, except upon written amendment executed by Employee and\nexecuted on Employer’s behalf by a duly authorized officer.\nNothing in this Agreement shall be construed as changing or modifying the “at will” nature of Employee’s employment with\nEmployer, pursuant to which the Parties acknowledge and agree that Employee’s employment with Employer is “at will” and that Employee’s\nemployment may be terminated by Employee or Employer at any time, for any reason or for no reason.\n11. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New\nJersey, without regard to its conflicts of law provisions.\nAny claim arising out of, or relating to this Agreement including, without limitation, any action commenced by Employer for\npreliminary and permanent injunctive relief or other equitable relief, shall be instituted in any federal or state court in the State of New Jersey.\nEach party agrees not to assert by way of motion, as a defense or otherwise, in any such claim, that such party is not subject personally to the\njurisdiction of such court, that the claim is brought in an inconvenient forum, that the venue of the claim is improper or that this Agreement or\nthe subject matter hereof may not be enforced in or by such court. Each party further irrevocably submits to the exclusive jurisdiction of such\ncourt in any such claim.\n7\nAny and all service of process and any other notice in any such claim shall be effective against any party if given personally or\nby registered mail, return receipt requested, mailed to such party as provided herein. Nothing herein contained shall be deemed to affect the right\nof any party to serve process in any manner permitted by law.\n12. Usage.\nAll pronouns and any variations thereof shall be considered to refer to the masculine, feminine or neuter,\nsingular or plural, as the context may require. All terms defined in the Agreement in their singular or plural forms have correlative meanings\nwhen used herein in their singular or plural forms, respectively. Unless otherwise expressly provided the words “include” “includes” and\n“including” do not limit the preceding words or terms and shall be deemed followed by the words “without limitation.”\n13.\nHeadings. The headings in this Agreement are for reference only, and shall not affect the interpretation of this\nAgreement.\n14. Counterparts. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so\nexecuted and delivered shall be an original, but all such counterparts, together shall constitute one, and the same, instrument. Each counterpart\nmay consist of a number of copies hereof each signed by less than all, but together signed by all of the parties hereto.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.\nINTERPACE DIAGNOSTICS GROUP, INC.\nBy: /s/ Jack Stover\nName: Jack\nStover\nTitle: Chief Executive Officer\nEMPLOYEE\n/s/ Nat Krishnamurti\nName: Nat Krishnamurti\nTitle: Chief Financial Officer, Treasurer, and Secretary\n8 EX-10.2 3 ex10-2.htm EXHIBIT 10.2\nExhibit 10.2\nEXHIBIT A\nCONFIDENTIAL INFORMATION, NON-DISCLOSURE, NON-SOLICITATION,\nNON-COMPETE, AND RIGHTS TO INTELLECTUAL PROPERTY AGREEMENT\nThis CONFIDENTIAL INFORMATION, NON-DISCLOSURE, NON-SOLICITATION, NON-COMPETE, AND RIGHTS\nTO INTELLECTUAL PROPERTY AGREEMENT (hereinafter this “Agreement” or this “Confidentiality Agreement”) is made as of June 22,\n2016, by and between Nat Krishnamurti, who currently resides at [ ] (“Employee”) and Interpace Diagnostics Group, Inc. (formerly PDI,\nInc. and hereinafter together with PDI, Inc., Interpace Diagnostics Corporation, and Interpace Diagnostics, LLC referred to as “Employer”),\nhaving its principal place of business at Morris Corporate Center 1-Building A/B, 300 Interpace Parkway, Parsippany, New Jersey 07054\n(collectively the “Parties”).\nWHEREAS, Employee is presently serving and continues to serve as Chief Financial Officer, Treasurer, and Secretary of\nEmployer;\nWHEREAS, Employer will continue to employ Employee in a position of trust and confidence to aid Employer in its\nBusiness;\nWHEREAS, Employer desires to receive from Employee a covenant not to disclose certain information relating to\nEmployer’s Business and certain other covenants;\nWHEREAS, as a material inducement to Employer to employ and continue to employ Employee and pay Employee salary\nand other remuneration and benefits during his employment, Employee has agreed to such covenants; and\nWHEREAS, Employer and Employee desire to set forth, in writing, the terms and conditions of their agreements and\nunderstandings with respect to such covenants.\nNOW, THEREFORE, in consideration of the foregoing, of the mutual promises herein contained, and for other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto intending to be legally bound, agree as\nfollows:\n1. Business. For purposes of this Agreement, the Business of Employer consists of developing and conducting molecular\ndiagnostic testing to assist in the treatment of pancreatic, biliary, esophageal and thyroid cancers (the “Business”). The Business is highly\ncompetitive and specialized involving highly sensitive information.\n2. Employer. As used herein, the term “Employer” shall mean Interpace Diagnostics Group, Inc. (formerly and including\nPDI, Inc.); Interpace Diagnostics, LLC; Interpace Diagnostics Corporation; and any and all related or affiliated entities, including, but not\nlimited to any other business entity which is, was, or becomes a predecessor, subsidiary, or parent of the above-listed entities and/or which is,\nwas, or becomes an affiliate of one or more of the above-listed entities by virtue of common (although not identical) ownership and for which\nEmployee is providing services in any form during his employment with Employer.\n \n3. Notice. Any notice required to, or permitted to, be given hereunder shall be sufficient if in writing (a) delivered\npersonally, (b) sent by first class certified mail, return receipt requested, postage and fees prepaid, or (c) sent by prepaid overnight delivery\nservice, to the parties at the following addresses (or at such other addresses as shall be specified by the parties in a like notice):\nIf to Employer: Interpace Diagnostics Group, Inc.\nMorris Corporate Center I\nBuilding A/B\n300 Interpace Parkway\nParsippany, New Jersey 07054\nAttn.: Chief Executive Officer\nIf to Employee: Nat Krishnamurti\n[]\n[]\nAll notices shall be deemed to have been given upon receipt if delivered personally, or by recognized overnight courier, or five\n(5) days after mailing if mailed.\n4. Confidential Information, Non-Disclosure. Employee understands and recognizes that in his position as Chief\nFinancial Officer, Treasurer, and Secretary of Employer, he has been and will be afforded substantial access to Confidential Information (as that\nterm is defined below) the unauthorized use, disclosure and/or publication of which would cause Employer to suffer substantial damage to and\ninterfere with the current or contemplated Business of Employer and cause irreparable injury to Employer. Employee further understands and\nrecognizes, therefore, that it is in Employer’s legitimate business interest to restrict Employee’s use of Confidential Information for any purposes\nother than the discharge of Employee’s duties at Employer in furtherance of the Business, and to limit any potential appropriation of\nConfidential Information by Employee for the benefit of Employer’s competitors and to the detriment of Employer. Accordingly, Employee\nagrees as follows:\na. During and after Employee’s employment with Employer, Employee will not, without the prior written consent\nof Employer, or as may otherwise be required by law or legal process, communicate or disclose to any other person or company, or use for\nEmployee’s own personal benefit, except as may be necessary in the performance of Employee’s duties as an employee of Employer, any\nConfidential Information disclosed to him or of which Employee became aware or developed or was given access to by reason of Employee’s\nemployment or association with Employer.\nb. The term “Confidential Information” means any and all data and information relating to Employer and/or its\nBusiness (whether or not it constitutes a trade secret) or data and information received by Employer from third parties including, but not limited\nto, customers, clients, patients and business partners in confidence (or subject to a Non-Disclosure covenant), which is, or has been, disclosed to\nEmployee or of which Employee became or becomes aware as a consequence of his employment relationship with Employer, and which has\nvalue to Employer and is not generally known by Employer’s competitors including, but not limited to, information concerning Employer’s\nbusiness, and information of third parties, which Employer is required to maintain as confidential. Confidential Information shall not include\nany data or information that has been disclosed voluntarily to the public by Employer (except when such public disclosure has been made by\nEmployee or some other person without authorization from Employer), or that has been independently developed and disclosed by others, or\nthat otherwise enters the public domain through lawful and legitimate means.\nEmployee hereby expressly agrees that Confidential Information is the exclusive property of Employer, to be held by\nEmployee in trust and solely for Employer’s benefit and shall not be used by Employee or disclosed by Employee to others, either during or\nafter Employee’s employment without Employer’s advance written consent, except where required for Employee to properly perform\nEmployee’s job duties for Employer. This promise is binding on Employee regardless of the reason(s) for the termination of Employee’s\nemployment. Employee further agrees to comply with all rules, policies and procedures established by Employer from time-to-time, which are\ndesigned to protect and ensure the continued confidentiality of the Confidential Information and all applicable law.\nc. Employee understands and agrees that upon termination of Employee’s employment with Employer, Employee\nwill not take with him, or retain, without written authorization from Employer, any documents, files or other property of Employer, and\nEmployee will promptly return to Employer any such documents, files or property in his possession or control, including all copies, extracts,\nreproductions or notes, as may have been made by or on behalf of Employee. If Employee has stored Confidential Information on any personal\ndesktop or laptop devices, Personal Digital Assistants (“PDAs”), mobile/smart phones, external hard drives, “flash” or similar USB storages\ndevices, Fire Wire storage devices, digital music players, digital tapes, floppy diskettes, CDs, DVDs, memory cards, zip diskettes, as well as\nmaintained in personal e-mail accounts (including web based e-mail accounts such as Hotmail, Gmail, Yahoo, etc.) and other electronic or\nonline communications applications, such as text messaging, social media networks (i.e. Facebook, LinkedIn, My Space, etc.), chat rooms and\nsimilar environments and all other media, which can be utilized to store or transmit electronic data and communications (regardless of whether\nthe media utilized is owned by Employer, Employee or a third party, or where the media is located) then Employee must make those devices\navailable to Employer or provide access to those accounts or communications in order to enable Employer to search for such Confidential\nInformation and to remove and/or make complete copies of the media/communications and all information stored to the extent permitted by law\nor to the extent not permitted by law to otherwise arrange for the return and/or removal of such Confidential Information to Employer, as\nappropriate.\nEmployee acknowledges and agrees that this list is not comprehensive and includes technological advancements in methods,\ndevices and locations for storing and communicating data that could include Confidential Information covered by this provision. For this\npurpose, Employee agrees that he has no expectation of privacy with respect to the various media and communications referred to above, except\nto the extent otherwise provided by law.\nIn connection with this Confidentiality Agreement, Employee recognizes that all documents, files and property, which\nEmployee has received or will receive from Employer, including, but not limited to, handbooks, memoranda, policy manuals, product\nspecifications and other materials, with the exception of documents relating to benefits to which Employee might be entitled following the\ntermination of his employment with Employer, are for the exclusive use of Employer and employees discharging their responsibilities on behalf\nof Employer, and that Employee has no claim or right to the continued use, possession or custody of such material following the termination of\nhis employment with Employer.\nIf Employee becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative\ndemand or similar process) to disclose any Confidential Information, Employee shall provide Employer with prompt written notice of such\nrequirement so Employer may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Paragraph 4\nof this Confidentiality Agreement. If such protective order or other remedy is not obtained, or Employer waives compliance with the provisions\nof this Paragraph 4, Employee agrees to furnish only that portion of the Confidential Information, which he is advised by written opinion of\nlegal counsel is legally required and to exercise best efforts to obtain assurances that confidential treatment will be accorded such Confidential\nInformation.\n5. Non-Solicitation. Except as otherwise approved in writing by Employer, Employee agrees that Employee will not,\ndirectly or indirectly, with or through any family member, or former directors, officers or employees of Employer, or acting alone or as a\nmember of a partnership or limited liability company or as an officer, holder of or investor in as much as five (5%) percent of any security of\nany class, director, employee, consultant or representative of any corporation or other business entity at any time during Employee’s\nemployment with Employer, and for a period of two (2) years following cessation of Employee’s employment with Employer for any reason,\ninterfere with, or seek to interfere with the relationship or otherwise alter, limit or terminate such relationship between Employer and the\nfollowing: (a) any employee of Employer or any person who was employed by Employer at any time within one (1) year prior to the cessation\nof Employee’s employment with Employer, which prohibited interference includes inducing or attempting to induce any person to leave\nemployment with Employer or hiring any such person; (b) any of the customers or clients of Employer then existing or existing at any time\nwithin one (1) year prior to the cessation of Employee’s employment with Employer with which Employee personally had contact or access to\nConfidential Information about, or (c) any of the suppliers or licensees of Employer, then existing or existing at any time within one (1) year\nprior to cessation of Employee’s employment with Employer.\n6. Non-Competition. It is recognized and understood by the parties hereto that Employee, through Employee’s\nassociation with Employer, has acquired and shall continue to acquire a considerable amount of knowledge and goodwill with respect to the\nBusiness of Employer, as well as access to Employer’s clients and customers, which knowledge, goodwill and relationships are extremely\nvaluable to Employer and which would be extremely detrimental to Employer if used by Employee to compete with Employer. It is therefore\nunderstood and agreed to by the parties hereto that because of the nature of the Business of Employer, it is necessary to afford fair protection to\nEmployer from competition by Employee. Consequently, as a material inducement to employ and continue to employ Employee, Employee\ncovenants and agrees that he will not, directly or indirectly, with or through any family member, or former director, officer or employee of\nEmployer, or acting alone or as a member of a partnership or limited liability company, or as an officer of or investor in as much as five (5%)\npercent of any security of any class, director, employee, consultant or representative of any corporation or other business entity at any time while\nemployed by Employer, and for a period of one (1) year following cessation of Employee’s employment with Employer for any reason, own,\nmanage, operate, control, consult with, or be employed by or with any person, firm, partnership, association, corporation or other business entity\nwhich competes with Employer or performs services which are substantially similar to its Business in the United States of America.\n \n7. Rights to Intellectual Property. All inventions, improvements, modifications, ideas, styles, trade names and the like,\nwhether or not reduced to writing or stored electronically or otherwise and whether or not protectable by patent, trademark, copyright or other\nintellectual property law, which relate or are susceptible for use directly or indirectly in Employer’s Business that are originated in whole, or in\npart, by Employee (alone or jointly with others) during his term of employment with Employer, irrespective of whether they were conceived,\ndeveloped, suggested or perfected (i) during Employee’s regular working hours, (ii) with the use of Employer’s time, materials or facilities or\n(iii) within one (1) year following the termination of Employee’s employment with Employer or otherwise attributable to Employee’s\nemployment with Employer shall become and remain the exclusive property of Employer. If any one or more of the aforementioned are deemed\nin any way to fall within the definition of “work made for hire,” as such term is defined in 17 U.S.C. §101, such work shall be considered a\n“work made for hire,” the copyright of which shall be owned solely by, or assigned or transferred completely and exclusively to Employer. At\nthe request and expense of Employer, Employee shall cooperate with Employer, in applying for, prosecuting, and obtaining patent, trademark,\nservice mark, trade name and copyright registrations in the name of Employer.\nEmployee shall promptly disclose, grant and assign ownership to Employer, for its sole use and benefit, any and all inventions,\nimprovements, information and copyrights (whether patentable or not), which he may develop, acquire, conceive or reduce to practice, while\nemployed by Employer (whether or not during usual working hours) together with all patent applications, letters, patent, copyrights and reissues\nthereof, that may at any time be granted for or upon any such invention, improvement or information; provided, however, that Employee shall\nown any invention, which Employee can demonstrate has no relationship to the Business, and which was neither conceived, nor made by use of\nany of the time, facilities or materials of Employer. In connection therewith:\na. Employee shall without charge, but at the expense of Employer, promptly at all times thereafter execute and\ndeliver such applications, assignments, descriptions and other instruments, as may be reasonably necessary or proper in the opinion of Employer\nto vest title to any such inventions, improvements, technical information, patent applications, patents, copyrights or reissues thereof in\nEmployer, and to enable it to obtain and maintain the entire right and title thereto throughout the world; and\nb. Employee shall render to Employer at its expense (including reimbursement to Employee of reasonable out-of-\npocket expenses incurred by Employee and a reasonable payment for Employee’s time involved in case he is not then in its employ) all such\nassistance as it may require in the prosecution of applications for said patents, copyright or reissues thereof, in the prosecution, or defense of\ninterferences, which may be declared involving any said applications, patents or copyrights and in any litigation in which Employer may be\ninvolved relating to any such patents, inventions, improvements or technical improvements.\nIn the event that Employer is unable to, after reasonable effort, secure Employee’s signature on any document(s) needed to\napply for or secure any copyright or patent, for any reason whatsoever, Employee hereby designates Employer, and its duly authorized officers\nand agents, as Employee’s agent and attorney-in-fact to execute and file any such application(s), and to perform all other legally permitted acts\nto further the prosecution and issuance of copyrights and patents, or similar protection thereon, which shall have the same legal form and effect\nas if executed by Employee.\nEmployee hereby represents and warrants that Employee has fully described to Employer on Schedule A appended hereto any\nidea, invention, product, improvement, computer software program or other equipment or technology related to the Business of Employer\n(“Inventions”), not covered in this Paragraph 7, which prior to his employment with Employer, Employee conceived of or developed, wholly or\nin part, and in which Employee has any right, title or proprietary interest, and whether directly related to Employer’s Business, but which has not\nbeen published or filed with the United States Patent and Trademark or Copyright Offices or any other patent or copyright office or assigned or\ntransferred to Employer. If there is no such Schedule A, Employee represents that Employee has made no such Inventions at the time of signing\nthis Agreement or Employee hereby assigns such Inventions to Employer.\nWith respect to this Paragraph 7, it is agreed and acknowledged that during Employee’s employment, Employer may enter\nother lines of business, which are related or unrelated to its Business, in which case this Agreement would be expanded to cover such new lines\nof business.\nIn the event that Employer gives written notice to Employee that Employer elects not to apply for a patent in a jurisdiction for\nan item above, which is patentable then Employee may, at his own cost and expense, apply for a patent therefor in his own name in such\njurisdiction.\n8. Reasonableness of Restrictions.\na. Employee has carefully read and considered the provisions of Paragraphs 4 through 7 hereof, and having done\nso agrees that the restrictions set forth therein are fair and reasonable and are reasonably required for the protection of the interests of Employer,\nits stockholders, directors, officers, employees, and successors and assigns and that Employer would not have employed Employee in the\nabsence of agreement to such restrictions and that any violation of any provisions of Paragraphs 4 through 7 will result in irreparable injury to\nEmployer. Employee further represents and acknowledges that (i) Employee has been advised by Employer to consult his counsel prior to\nexecution and delivery of this Agreement, and (ii) that Employee has had full opportunity, prior to execution and delivery of this Agreement, to\nreview thoroughly this Agreement with his counsel.\n \nEmployee further understands and agrees that Employer shall be entitled to preliminary and permanent injunctive relief,\nwithout the necessity of proving actual damages, as well as an equitable accounting of all earnings, profits and other benefit, arising from any\nviolation of Paragraphs 4 through 7, which rights shall be cumulative, and in addition to any other rights or remedies to which Employer may be\nentitled hereunder or now or hereafter existing in law or equity. No delay or omission by a party hereto in exercising any right, remedy or power\nhereunder or existing at law or in equity shall be construed as a waiver thereof.\nb. To the extent any portion of any provision of this Agreement is held to be invalid or unenforceable, the language\nshall be construed by limiting and/or reducing it so as to be enforceable to the extent compatible with applicable law. All remaining provisions\nand/or portions thereof shall remain in full force and effect.\n9. Binding Effect. This Agreement shall be binding upon and inure to the benefit of and be enforceable by Employer and its\nsuccessors and assigns, and shall be binding upon and inure to the benefit of and be enforceable by Employee and his estate, heirs,\nadministrators and legal representatives. This Agreement is not assignable by Employee but is assignable by Employer to any successor to all, or\nsubstantially all, of its Business, assets or other reorganization to which it may become a party, provided that, such assignee assumes all of the\nobligations of Employer hereunder.\n10. Entire Agreement and Amendment. This Agreement constitutes the entire agreement between Employer and\nEmployee with respect to the restrictive covenants set forth in Paragraphs 4 through 7 of this Agreement and supersedes all prior agreements,\nwritten or oral with respect thereto. This Agreement cannot be changed or modified, except upon written amendment executed by Employee and\nexecuted on Employer’s behalf by a duly authorized officer.\nNothing in this Agreement shall be construed as changing or modifying the “at will” nature of Employee’s employment with\nEmployer, pursuant to which the Parties acknowledge and agree that Employee’s employment with Employer is “at will” and that Employee’s\nemployment may be terminated by Employee or Employer at any time, for any reason or for no reason.\n11. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New\nJersey, without regard to its conflicts of law provisions.\nAny claim arising out of, or relating to this Agreement including, without limitation, any action commenced by Employer for\npreliminary and permanent injunctive relief or other equitable relief, shall be instituted in any federal or state court in the State of New Jersey.\nEach party agrees not to assert by way of motion, as a defense or otherwise, in any such claim, that such party is not subject personally to the\njurisdiction of such court, that the claim is brought in an inconvenient forum, that the venue of the claim is improper or that this Agreement or\nthe subject matter hereof may not be enforced in or by such court. Each party further irrevocably submits to the exclusive jurisdiction of such\ncourt in any such claim.\n \nAny and all service of process and any other notice in any such claim shall be effective against any party if given personally or\nby registered mail, return receipt requested, mailed to such party as provided herein. Nothing herein contained shall be deemed to affect the right\nof any party to serve process in any manner permitted by law.\n12. Usage. All pronouns and any variations thereof shall be considered to refer to the masculine, feminine or neuter,\nsingular or plural, as the context may require. All terms defined in the Agreement in their singular or plural forms have correlative meanings\nwhen used herein in their singular or plural forms, respectively. Unless otherwise expressly provided the words “include” “includes” and\n“including” do not limit the preceding words or terms and shall be deemed followed by the words “without limitation.”\n13. Headings. The headings in this Agreement are for reference only, and shall not affect the interpretation of this\nAgreement.\n14. Counterparts. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so\nexecuted and delivered shall be an original, but all such counterparts, together shall constitute one, and the same, instrument. Each counterpart\nmay consist of a number of copies hereof each signed by less than all, but together signed by all of the parties hereto.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.\nINTERPACE DIAGNOSTICS GROUP, INC.\nBy: /s/ Jack Stover\nName: Jack\nStover\nTitle: Chief Executive Officer\nEMPLOYEE\n/s/ Nat Krishnamurti\nName: Nat Krishnamurti\nTitle: Chief Financial Officer, Treasurer, and Secretary EX-10.2 ex10-2.htm EXHIBIT 10.2\nExhibit 10.2\nEXHIBIT A\nCONFIDENTIAL INFORMATION, NON-DISCLOSURE, NON-SOLICITATION,\nNON-COMPETE, AND RIGHTS TO INTELLECTUAL PROPERTY AGREEMENT\nThis CONFIDENTIAL INFORMATION, NON-DISCLOSURE, NON-SOLICITATION, NON-COMPETE, AND RIGHTS\nTO INTELLECTUAL PROPERTY AGREEMENT (hereinafter this "Agreement" or this "Confidentiality Agreement") is made as of June 22,\n2016, by and between Nat Krishnamurti, who currently resides at [ 1 ("Employee") and Interpace Diagnostics Group, Inc. (formerly PDI,\nInc. and hereinafter together with PDI, Inc., Interpace Diagnostics Corporation, and Interpace Diagnostics, LLC referred to as "Employer"),\nhaving its principal place of business at Morris Corporate Center 1-Building A/B, 300 Interpace Parkway, Parsippany, New Jersey 07054\n(collectively the "Parties").\nWHEREAS, Employee is presently serving and continues to serve as Chief Financial Officer, Treasurer, and Secretary of\nEmployer;\nWHEREAS, Employer will continue to employ Employee in a position of trust and confidence to aid Employer in its\nBusiness;\nWHEREAS, Employer desires to receive from Employee a covenant not to disclose certain information relating to\nEmployer's Business and certain other covenants;\nWHEREAS, as a material inducement to Employer to employ and continue to employ Employee and pay Employee salary\nand other remuneration and benefits during his employment, Employee has agreed to such covenants; and\nWHEREAS, Employer and Employee desire to set forth, in writing, the terms and conditions of their agreements and\nunderstandings with respect to such covenants.\nNOW, THEREFORE, in consideration of the foregoing, of the mutual promises herein contained, and for other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto intending to be legally bound, agree as\nfollows:\n1.\nBusiness. For purposes of this Agreement, the Business of Employer consists of developing and conducting molecular\ndiagnostic testing to assist in the treatment of pancreatic, biliary, esophageal and thyroid cancers (the "Business"). The Business is highly\ncompetitive and specialized involving highly sensitive information.\n2. Employer. As used herein, the term "Employer" shall mean Interpace Diagnostics Group, Inc. (formerly and including\nPDI, Inc.); Interpace Diagnostics, LLC; Interpace Diagnostics Corporation; and any and all related or affiliated entities, including, but not\nlimited to any other business entity which is, was, or becomes a predecessor, subsidiary, or parent of the above-listed entities and/or which is,\nwas, or becomes an affiliate of one or more of the above-listed entities by virtue of common (although not identical) ownership and for which\nEmployee is providing services in any form during his employment with Employer.\n1\n3.\nNotice. Any notice required to, or permitted to, be given hereunder shall be sufficient if in writing (a) delivered\npersonally, (b) sent by first class certified mail, return receipt requested, postage and fees prepaid, or (c) sent by prepaid overnight delivery\nservice, to the parties at the following addresses (or at such other addresses as shall be specified by the parties in a like notice):\nIf to Employer:\nInterpace Diagnostics Group, Inc.\nMorris Corporate Center I\nBuilding A/B\n300 Interpace Parkway\nParsippany, New Jersey 07054\nAttn.: Chief Executive Officer\nIf to Employee:\nNat Krishnamurti\nAll notices shall be deemed to have been given upon receipt if delivered personally, or by recognized overnight courier, or five\n(5) days after mailing if mailed.\n4.\nConfidential Information, Non-Disclosure. Employee understands and recognizes that in his position as Chief\nFinancial Officer, Treasurer, and Secretary of Employer, he has been and will be afforded substantial access to Confidential Information (as that\nterm is defined below) the unauthorized use, disclosure and/or publication of which would cause Employer to suffer substantial damage to and\ninterfere with the current or contemplated Business of Employer and cause irreparable injury to Employer. Employee further understands and\nrecognizes, therefore, that it is in Employer's legitimate business interest to restrict Employee's use of Confidential Information for any purposes\nother than the discharge of Employee's duties at Employer in furtherance of the Business, and to limit any potential appropriation of\nConfidential Information by Employee for the benefit of Employer's competitors and to the detriment of Employer. Accordingly, Employee\nagrees as follows:\na.\nDuring and after Employee's employment with Employer, Employee will not, without the prior written consent\nof Employer, or as may otherwise be required by law or legal process, communicate or disclose to any other person or company, or use for\nEmployee's own personal benefit, except as may be necessary in the performance of Employee's duties as an employee of Employer, any\nConfidential Information disclosed to him or of which Employee became aware or developed or was given access to by reason of Employee's\nemployment or association with Employer.\nb.\nThe term "Confidential Information" means any and all data and information relating to Employer and/or its\nBusiness (whether or not it constitutes a trade secret) or data and information received by Employer from third parties including, but not limited\nto,\ncustomers,\nclients, patients and business partners in confidence (or subject to a Non-Disclosure covenant), which is, or has been, disclosed to\nEmployee or of which Employee became or becomes aware as a consequence of his employment relationship with Employer, and which has\nvalue to Employer and is not generally known by Employer's competitors including, but not limited to, information concerning Employer's\nbusiness, and information of third parties, which Employer is required to maintain as confidential. Confidential Information shall not include\nany data or information that has been disclosed voluntarily to the public by Employer (except when such public disclosure has been made by\nEmployee or some other person without authorization from Employer), or that has been independently developed and disclosed by others, or\nthat otherwise enters the public domain through lawful and legitimate means.\n2\nEmployee hereby expressly agrees that Confidential Information is the exclusive property of Employer, to be held by\nEmployee in trust and solely for Employer's benefit and shall not be used by Employee or disclosed by Employee to others, either during or\nafter Employee's employment without Employer's advance written consent, except where required for Employee to properly perform\nEmployee's job duties for Employer. This promise is binding on Employee regardless of the reason(s) for the termination of Employee's\nemployment. Employee further agrees to comply with all rules, policies and procedures established by Employer from time-to-time, which\nare\ndesigned to protect and ensure the continued confidentiality of the Confidential Information and all applicable law.\nC. Employee understands and agrees that upon termination of Employee's employment with Employer, Employee\nwill not take with him, or retain, without written authorization from Employer, any documents, files or other property of Employer, and\nEmployee will promptly return to Employer any such documents, files or property in his possession or control, including all copies, extracts,\nreproductions or notes, as may have been made by or on behalf of Employee. If Employee has stored Confidential Information on any personal\ndesktop or laptop devices, Personal Digital Assistants ("PDAs"), mobile/smart phones, external hard drives, "flash" or similar USB storages\ndevices, Fire Wire storage devices, digital music players, digital tapes, floppy diskettes, CDs, DVDs, memory cards, zip diskettes, as well\nas\nmaintained in personal e-mail accounts (including web based e-mail accounts such as Hotmail, Gmail, Yahoo, etc.) and other electronic or\nonline communications applications, such as text messaging, social media networks (i.e. Facebook, LinkedIn, My Space, etc.), chat rooms\nand\nsimilar\nenvironments and all other media, which can be utilized to store or transmit electronic data and communications (regardless of whether\nthe media utilized is owned by Employer, Employee or a third party, or where the media is located) then Employee must make those devices\navailable to Employer or provide access to those accounts or communications in order to enable Employer to search for such Confidential\nInformation and to remove and/or make complete copies of the media/communications and all information stored to the extent permitted by law\nor to the extent not permitted by law to otherwise arrange for the return and/or removal of such Confidential Information to Employer, as\nappropriate.\nEmployee acknowledges and agrees that this list is not comprehensive and includes technological advancements in methods,\ndevices and locations for storing and communicating data that could include Confidentia Information covered by this provision. For this\npurpose, Employee agrees that he has no expectation of privacy with respect to the various media and communications referred to above, except\nto the extent otherwise provided by law.\n3\nIn connection with this Confidentiality Agreement, Employee recognizes that all documents, files and property, which\nEmployee has received or will receive from Employer, including, but not limited to, handbooks, memoranda, policy manuals, product\nspecifications and other materials, with the exception of documents relating to benefits to which Employee might be entitled following the\ntermination of his employment with Employer, are for the exclusive use of Employer and employees discharging their responsibilities on behalf\nof Employer, and that Employee has no claim or right to the continued use, possession or custody of such material following the termination of\nhis employment with Employer.\nIf Employee becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative\ndemand or similar process) to disclose any Confidential Information, Employee shall provide Employer with prompt written notice of such\nrequirement so Employer may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Paragraph\n4\nof this Confidentiality Agreement. If such protective order or other remedy is not obtained, or Employer waives compliance with the provisions\nof this Paragraph 4, Employee agrees to furnish only that portion of the Confidential Information, which he is advised by written opinion\nof\nlegal counsel is legally required and to exercise best efforts to obtain assurances that confidential treatment will be accorded such Confidential\nInformation.\n5.\nNon-Solicitation. Except as otherwise approved in writing by Employer, Employee agrees that Employee will not,\ndirectly or indirectly, with or through any family member, or former directors, officers or employees of Employer, or acting alone or as a\nmember of a partnership or limited liability company or as an officer, holder of or investor in as much as five (5%) percent of any security of\nany class, director, employee, consultant or representative of any corporation or other business entity at any time during Employee's\nemployment with Employer, and for a period of two (2) years following cessation of Employee's employment with Employer for any reason,\ninterfere with, or seek to interfere with the relationship or otherwise alter, limit or terminate such relationship between Employer and the\nfollowing: (a) any employee of Employer or any person who was employed by Employer at any time within one (1) year prior to the cessation\nof Employee's employment with Employer, which prohibited interference includes inducing or attempting to induce any person to leave\nemployment with Employer or hiring any such person; (b) any of the customers or clients of Employer then existing or existing at any time\nwithin one (1) year prior to the cessation of Employee's employment with Employer with which Employee personally had contact or access to\nConfidential Information about, or (c) any of the suppliers or licensees of Employer, then existing or existing at any time within one (1) year\nprior to cessation of Employee's employment with Employer.\n6.\nNon-Competition. It is recognized and understood by the parties hereto that Employee, through Employee's\nassociation with Employer, has acquired and shall continue to acquire a considerable amount of knowledge and goodwill with respect to the\nBusiness of Employer, as well as access to Employer's clients and customers, which knowledge, goodwill and relationships are extremely\nvaluable to Employer and which would be extremely detrimental to Employer if used by Employee to compete with Employer. It is therefore\nunderstood and agreed to by the parties hereto that because of the nature of the Business of Employer, it is necessary to afford fair protection\nto\nEmployer from competition by Employee. Consequently, as a material inducement to employ and continue to employ Employee, Employee\ncovenants and agrees that he will not, directly or indirectly, with or through any family member, or former director, officer or employee of\nEmployer, or acting alone or as a member of a partnership or limited liability company, or as an officer of or investor in as much as five (5%)\npercent of any security of any class, director, employee, consultant or representative of any corporation or other business entity at any time while\nemployed by Employer, and for a period of one (1) year following cessation of Employee's employment with Employer for any reason, own,\nmanage, operate, control, consult with, or be employed by or with any person, firm, partnership, association, corporation or other business entity\nwhich competes with Employer or performs services which are substantially similar to its Business in the United States of America.\n4\n7. Rights to Intellectual Property.. All inventions, improvements, modifications, ideas, styles, trade names and the like,\nwhether or not reduced to writing or stored electronically or otherwise and whether or not protectable by patent, trademark, copyright or other\nintellectual property law, which relate or are susceptible for use directly or indirectly in Employer's Business that are originated in whole, or in\npart, by Employee (alone or jointly with others) during his term of employment with Employer, irrespective of whether they were conceived,\ndeveloped, suggested or perfected (i) during Employee's regular working hours, (ii) with the use of Employer's time, materials or facilities or\n(iii) within one (1) year following the termination of Employee's employment with Employer or otherwise attributable to Employee's\nemployment\nwith Employer shall become and remain the exclusive property of Employer. If any one or more of the aforementioned are deemed\nin any way to fall within the definition of "work made for hire," as such term is defined in 17 U.S.C. 8101, such work shall be considered\na\n"work made for hire," the copyright of which shall be owned solely by, or assigned or transferred completely and exclusively to Employer. At\nthe request and expense of Employer, Employee shall cooperate with Employer, in applying for, prosecuting, and obtaining patent, trademark,\nservice mark, trade name and copyright registrations in the name of Employer.\nEmployee shall promptly disclose, grant and assign ownership to Employer, for its sole use and benefit, any and all inventions,\nimprovements, information and copyrights (whether patentable or not), which he may develop, acquire, conceive or reduce to practice, while\nemployed by Employer (whether or not during usual working hours) together with all patent applications, letters, patent, copyrights and reissues\nthereof, that may at any time be granted for or upon any such invention, improvement or information; provided, however, that Employee shall\nown any invention, which Employee can demonstrate has no relationship to the Business, and which was neither conceived, nor made by use of\nany of the time, facilities or materials of Employer. In connection therewith:\na. Employee shall without charge, but at the expense of Employer, promptly at all times thereafter execute and\ndeliver such applications, assignments, descriptions and other instruments, as may be reasonably necessary or proper in the opinion of Employer\nto vest title to any such inventions, improvements, technical information, patent applications, patents, copyrights or reissues thereof\nin\nEmployer, and to enable it to obtain and maintain the entire right and title thereto throughout the world; and\nb.\nEmployee shall render to Employer at its expense (including reimbursement to Employee of reasonable out-of-\npocket expenses incurred by Employee and a reasonable payment for Employee's time involved in case he is not then in its employ) all such\nassistance as it may require in the prosecution of applications for said patents, copyright or reissues thereof, in the prosecution, or defense of\ninterferences, which may be declared involving any said applications, patents or copyrights and in any litigation in which Employer may be\ninvolved relating to any such patents, inventions, improvements or technical improvements.\n5\nIn the event that Employer is unable to, after reasonable effort, secure Employee's signature on any document(s) needed to\napply for or secure any copyright or patent, for any reason whatsoever, Employee hereby designates Employer, and its duly authorized officers\nand agents, as Employee's agent and attorney-in-fact to execute and file any such application(s), and to perform all other legally permitted acts\nto further the prosecution and issuance of copyrights and patents, or similar protection thereon, which shall have the same legal form and effect\nas if executed by Employee.\nEmployee hereby represents and warrants that Employee has fully described to Employer on Schedule A appended hereto any\nidea, invention, product, improvement, computer software program or other equipment or technology related to the Business of Employer\n("Inventions"), not covered in this Paragraph 7, which prior to his employment with Employer, Employee conceived of or developed, wholly or\nin\npart,\nand in which Employee has any right, title or proprietary interest, and whether directly related to Employer's Business, but which has not\nbeen published or filed with the United States Patent and Trademark or Copyright Offices or any other patent or copyright office or assigned or\ntransferred to Employer. If there is no such Schedule A, Employee represents that Employee has made no such Inventions at the time of signing\nthis Agreement or Employee hereby assigns such Inventions to Employer.\nWith respect to this Paragraph 7, it is agreed and acknowledged that during Employee's employment, Employer may enter\nother lines of business, which are related or unrelated to its Business, in which case this Agreement would be expanded to cover such new lines\nof business.\nIn the event that Employer gives written notice to Employee that Employer elects not to apply for a patent in a jurisdiction for\nan item above, which is patentable then Employee may, at his own cost and expense, apply for a patent therefor in his own name in such\njurisdiction.\n8. Reasonableness of Restrictions.\na. Employee has carefully read and considered the provisions of Paragraphs 4 through 7 hereof, and having done\nso agrees that the restrictions set forth therein are fair and reasonable and are reasonably required for the protection of the interests of Employer,\nits stockholders, directors, officers, employees, and successors and assigns and that Employer would not have employed Employee in the\nabsence of agreement to such restrictions and that any violation of any provisions of Paragraphs 4 through 7 will result in irreparable injury to\nEmployer. Employee further represents and acknowledges that (i) Employee has been advised by Employer to consult his counsel prior to\nexecution and delivery of this Agreement, and (ii) that Employee has had full opportunity, prior to execution and delivery of this Agreement, to\nreview thoroughly this Agreement with his counsel.\n6\nEmployee further understands and agrees that Employer shall be entitled to preliminary and permanent injunctive relief,\nwithout the necessity of proving actual damages, as well as an equitable accounting of all earnings, profits and other benefit, arising from any\nviolation of Paragraphs 4 through 7, which rights shall be cumulative, and in addition to any other rights or remedies to which Employer may be\nentitled hereunder or now or hereafter existing in law or equity. No delay or omission by a party hereto in exercising any right, remedy or power\nhereunder or existing at law or in equity shall be construed as a waiver thereof.\nb. To the extent any portion of any provision of this Agreement is held to be invalid or unenforceable, the language\nshall be construed by limiting and/or reducing it so as to be enforceable to the extent compatible with applicable law. All remaining provisions\nand/or portions thereof shall remain in full force and effect.\n9. Binding Effect. This Agreement shall be binding upon and inure to the benefit of and be enforceable by Employer and its\nsuccessors and assigns, and shall be binding upon and inure to the benefit of and be enforceable by Employee and his estate, heirs,\nadministrators and legal representatives. This Agreement is not assignable by Employee but is assignable by Employer to any successor to all, or\nsubstantially all, of its Business, assets or other reorganization to which it may become party,_provided that, such assignee assumes all of the\nobligations of Employer hereunder.\n10.\nEntire Agreement and Amendment. This Agreement constitutes the entire agreement between Employer and\nEmployee with respect to the restrictive covenants set forth in Paragraphs 4 through 7 of this Agreement and supersedes all prior agreements,\nwritten or oral with respect thereto. This Agreement cannot be changed or modified, except upon written amendment executed by Employee and\nexecuted on Employer's behalf by a duly authorized officer.\nNothing in this Agreement shall be construed as changing or modifying the "at will" nature of Employee's employment with\nEmployer, pursuant to which the Parties acknowledge and agree that Employee's employment with Employer is "at will" and that Employee's\nemployment may be terminated by Employee or Employer at any time, for any reason or for no reason.\n11. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New\nJersey, without regard to its conflicts of law provisions.\nAny claim arising out of, or relating to this Agreement including, without limitation, any action commenced by Employer for\npreliminary and permanent injunctive relief or other equitable relief, shall be instituted in any federal or state court in the State of New Jersey.\nEach party agrees not to assert by way of motion, as a defense or otherwise, in any such claim, that such party is not subject personally to the\njurisdiction of such court, that the claim is brought in an inconvenient forum, that the venue of the claim is improper or that this Agreement or\nthe subject matter hereof may not be enforced in or by such court. Each party further irrevocably submits to the exclusive jurisdiction of such\ncourt in any such claim.\n7\nAny and all service of process and any other notice in any such claim shall be effective against any party if given personally or\nby registered mail, return receipt requested, mailed to such party as provided herein. Nothing herein contained shall be deemed to affect the right\nof any party to serve process in any manner permitted by law.\n12.\nUsage. All pronouns and any variations thereof shall be considered to refer to the masculine, feminine or neuter,\nsingular or plural, as the context may require. All terms defined in the Agreement in their singular or plural forms have correlative meanings\nwhen\nused herein in their singular or plural forms, respectively. Unless otherwise expressly provided the words "include" "includes"\nand\n"including" do not limit the preceding words or terms and shall be deemed followed by the words "without limitation."\n13.\nHeadings. The headings in this Agreement are for reference only, and shall not affect the interpretation of this\nAgreement.\n14. Counterparts. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so\nexecuted and delivered shall be an original, but all such counterparts, together shall constitute one, and the same, instrument. Each counterpart\nmay consist of a number of copies hereof each signed by less than all, but together signed by all of the parties hereto.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.\nINTERPACE DIAGNOSTICS GROUP, INC.\nBy: /s/ Jack Stover\nName: Jack\nStover\nTitle: Chief Executive Officer\nEMPLOYEE\n/s/ Nat Krishnamurti\nName: Nat Krishnamurti\nTitle: Chief Financial Officer, Treasurer, and Secretary\n8 EX-10 .2 3 ex10-2.htm EXHIBIT 10.2\nExhibit 10.2\nEXHIBIT A\nCONFIDENTIAL INFORMATION, NON-DISCLOSURE, NON-SOLICITATION,\nNON-COMPETE, AND RIGHTS TO INTELLECTUAL PROPERTY AGREEMENT\nThis CONFIDENTIAL INFORMATION, NON-DISCLOSURE, NON-SOLICITATION, NON-COMPETE, AND RIGHTS\nTO INTELLECTUAL PROPERTY AGREEMENT (hereinafter this “Agreement” or this “Confidentiality Agreement”) is made as of June 22,\n2016, by and between Nat Krishnamurti, who currently resides at [ ] (“Employee”) and Interpace Diagnostics Group, Inc. (formerly PDI,\nInc. and hereinafter together with PDI, Inc., Interpace Diagnostics Corporation, and Interpace Diagnostics, LLC referred to as “Employer”),\nhaving its principal place of business at Morris Corporate Center 1-Building A/B, 300 Interpace Parkway, Parsippany, New Jersey 07054\n(collectively the “Parties”).\nWHEREAS, Employee is presently serving and continues to serve as Chief Financial Officer, Treasurer, and Secretary of\nEmployer;\nWHEREAS, Employer will continue to employ Employee in a position of trust and confidence to aid Employer in its\nBusiness;\nWHEREAS, Employer desires to receive from Employee a covenant not to disclose certain information relating to\nEmployer ’s Business and certain other covenants;\nWHEREAS, as a material inducement to Employer to employ and continue to employ Employee and pay Employee salary\nand other remuneration and benefits during his employment, Employee has agreed to such covenants; and\nWHEREAS, Employer and Employee desire to set forth, in writing, the terms and conditions of their agreements and\nunderstandings with respect to such covenants.\nNOW, THEREFORE, in consideration of the foregoing, of the mutual promises herein contained, and for other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto intending to be legally bound, agree as\nfollows:\n1. Business. For purposes of this Agreement, the Business of Employer consists of developing and conducting molecular\ndiagnostic testing to assist in the treatment of pancreatic, biliary, esophageal and thyroid cancers (the “Business”). The Business is highly\ncompetitive and specialized involving highly sensitive information.\n2. Employer. As used herein, the term “Employer” shall mean Interpace Diagnostics Group, Inc. (formerly and including\nPDI, Inc.); Interpace Diagnostics, LLC; Interpace Diagnostics Corporation; and any and all related or affiliated entities, including, but not\nlimited to any other business entity which is, was, or becomes a predecessor, subsidiary, or parent of the above-listed entities and/or which is,\nwas, or becomes an affiliate of one or more of the above-listed entities by virtue of common (although not identical) ownership and for which\nEmployee is providing services in any form during his employment with Employer.\n1\n3. Notice.\nAny notice required to, or permitted to, be given hereunder shall be sufficient if in writing (a) delivered\npersonally, (b) sent by first class certified mail, return receipt requested, postage and fees prepaid, or (c) sent by prepaid overnight delivery\nservice, to the parties at the following addresses (or at such other addresses as shall be specified by the parties in a like notice):\nIf to Employer:\nInterpace Diagnostics Group, Inc.\nMorris Corporate Center I\nBuilding A/B\n300 Interpace Parkway\nParsippany, New Jersey 07054\nAttn.: Chief Executive Officer\nIf to Employee:\nNat Krishnamurti\n[]\n[]\nAll notices shall be deemed to have been given upon receipt if delivered personally, or by recognized overnight courier, or five\n(5) days after mailing if mailed.\n4.\nConfidential Information, Non-Disclosure. Employee understands and recognizes that in his position as Chief\nFinancial Officer, Treasurer, and Secretary of Employer, he has been and will be afforded substantial access to Confidential Information (as that\nterm is defined below) the unauthorized use, disclosure and/or publication of which would cause Employer to suffer substantial damage to and\ninterfere with the current or contemplated Business of Employer and cause irreparable injury to Employer. Employee further understands and\nrecognizes, therefore, that it is in Employer’s legitimate business interest to restrict Employee’s use of Confidential Information for any purposes\nother than the discharge of Employee’s duties at Employer in furtherance of the Business, and to limit any potential appropriation of\nConfidential Information by Employee for the benefit of Employer’s competitors and to the detriment of Employer. Accordingly, Employee\nagrees as follows:\na. During and after Employee’s employment with Employer, Employee will not, without the prior written consent\nof Employer, or as may otherwise be required by law or legal process, communicate or disclose to any other person or company, or use for\nEmployee’s own personal benefit, except as may be necessary in the performance of Employee’s duties as an employee of Employer, any\nConfidential Information disclosed to him or of which Employee became aware or developed or was given access to by reason of Employee’s\nemployment or association with Employer.\nb. The term “Confidential Information” means any and all data and information relating to Employer and/or its\nBusiness (whether or not it constitutes a trade secret) or data and information received by Employer from third parties including, but not limited\nto, customers, clients, patients and business partners in confidence (or subject to a Non-Disclosure covenant), which is, or has been, disclosed to\nEmployee or of which Employee became or becomes aware as a consequence of his employment relationship with Employer, and which has\nvalue to Employer and is not generally known by Employer’s competitors including, but not limited to, information concerning Employer’s\nbusiness, and information of third parties, which Employer is required to maintain as confidential. Confidential Information shall not include\nany data or information that has been disclosed voluntarily to the public by Employer (except when such public disclosure has been made by\nEmployee or some other person without authorization from Employer), or that has been independently developed and disclosed by others, or\nthat otherwise enters the public domain through lawful and legitimate means.\n2\nEmployee hereby expressly agrees that Confidential Information is the exclusive property of Employer, to be held by\nEmployee in trust and solely for Employer’s benefit and shall not be used by Employee or disclosed by Employee to others, either during or\nafter Employee’s employment without Employer’s advance written consent, except where required for Employee to properly perform\nEmployee’s job duties for Employer. This promise is binding on Employee regardless of the reason(s) for the termination of Employee’s\nemployment. Employee further agrees to comply with all rules, policies and procedures established by Employer from time-to-time, which are\ndesigned to protect and ensure the continued confidentiality of the Confidential Information and all applicable law.\nc. Employee understands and agrees that upon termination of Employee’s employment with Employer, Employee\nwill not take with him, or retain, without written authorization from Employer, any documents, files or other property of Employer, and\nEmployee will promptly return to Employer any such documents, files or property in his possession or control, including all copies, extracts,\nreproductions or notes, as may have been made by or on behalf of Employee. If Employee has stored Confidential Information on any personal\ndesktop or laptop devices, Personal Digital Assistants (“PDAs”), mobile/smart phones, external hard drives, “flash” or similar USB storages\ndevices, Fire Wire storage devices, digital music players, digital tapes, floppy diskettes, CDs, DVDs, memory cards, zip diskettes, as well as\nmaintained in personal e-mail accounts (including web based e-mail accounts such as Hotmail, Gmail, Yahoo, etc.) and other electronic or\nonline communications applications, such as text messaging, social media networks (i.e . Facebook, LinkedIn, My Space, etc.), chat rooms and\nsimilar environments and all other media, which can be utilized to store or transmit electronic data and communications (regardless of whether\nthe media utilized is owned by Employer, Employee or a third party, or where the media is located) then Employee must make those devices\navailable to Employer or provide access to those accounts or communications in order to enable Employer to search for such Confidential\nInformation and to remove and/or make complete copies of the media/communications and all information stored to the extent permitted by law\nor to the extent not permitted by law to otherwise arrange for the return and/or removal of such Confidential Information to Employer, as\nappropriate.\nEmployee acknowledges and agrees that this list is not comprehensive and includes technological advancements in methods,\ndevices and locations for storing and communicating data that could include Confidential Information covered by this provision. For this\npurpose, Employee agrees that he has no expectation of privacy with respect to the various media and communications referred to above, except\nto the extent otherwise provided by law.\n3\nIn connection with this Confidentiality Agreement, Employee recognizes that all documents, files and property, which\nEmployee has received or will receive from Employer, including, but not limited to, handbooks, memoranda, policy manuals, product\nspecifications and other materials, with the exception of documents relating to benefits to which Employee might be entitled following the\ntermination of his employment with Employer, are for the exclusive use of Employer and employees discharging their responsibilities on behalf\nof Employer, and that Employee has no claim or right to the continued use, possession or custody of such material following the termination of\nhis employment with Employer.\nIf Employee becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative\ndemand or similar process) to disclose any Confidential Information, Employee shall provide Employer with prompt written notice of such\nrequirement so Employer may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Paragraph 4\nof this Confidentiality Agreement. If such protective order or other remedy is not obtained, or Employer waives compliance with the provisions\nof this Paragraph 4, Employee agrees to furnish only that portion of the Confidential Information, which he is advised by written opinion of\nlegal counsel is legally required and to exercise best efforts to obtain assurances that confidential treatment will be accorded such Confidential\nInformation.\n5. Non-Solicitation. Except as otherwise approved in writing by Employer, Employee agrees that Employee will not,\ndirectly or indirectly, with or through any family member, or former directors, officers or employees of Employer, or acting alone or as a\nmember of a partnership or limited liability company or as an officer, holder of or investor in as much as five (5%) percent of any security of\nany class, director, employee, consultant or representative of any corporation or other business entity at any time during Employee’s\nemployment with Employer, and for a period of two (2) years following cessation of Employee’s employment with Employer for any reason,\ninterfere with, or seek to interfere with the relationship or otherwise alter, limit or terminate such relationship between Employer and the\nfollowing: (a) any employee of Employer or any person who was employed by Employer at any time within one (1) year prior to the cessation\nof Employee’s employment with Employer, which prohibited interference includes inducing or attempting to induce any person to leave\nemployment with Employer or hiring any such person; (b) any of the customers or clients of Employer then existing or existing at any time\nwithin one (1) year prior to the cessation of Employee’s employment with Employer with which Employee personally had contact or access to\nConfidential Information about, or (c) any of the suppliers or licensees of Employer, then existing or existing at any time within one (1) year\nprior to cessation of Employee’s employment with Employer.\n6.\nNon-Competition.\nIt is recognized and understood by the parties hereto that Employee, through Employee’s\nassociation with Employer, has acquired and shall continue to acquire a considerable amount of knowledge and goodwill with respect to the\nBusiness of Employer, as well as access to Employer’s clients and customers, which knowledge, goodwill and relationships are extremely\nvaluable to Employer and which would be extremely detrimental to Employer if used by Employee to compete with Employer. It is therefore\nunderstood and agreed to by the parties hereto that because of the nature of the Business of Employer, it is necessary to afford fair protection to\nEmployer from competition by Employee. Consequently, as a material inducement to employ and continue to employ Employee, Employee\ncovenants and agrees that he will not, directly or indirectly, with or through any family member, or former director, officer or employee of\nEmployer, or acting alone or as a member of a partnership or limited liability company, or as an officer of or investor in as much as five (5%)\npercent of any security of any class, director, employee, consultant or representative of any corporation or other business entity at any time while\nemployed by Employer, and for a period of one (1) year following cessation of Employee’s employment with Employer for any reason, own,\nmanage, operate, control, consult with, or be employed by or with any person, firm, partnership, association, corporation or other business entity\nwhich competes with Employer or performs services which are substantially similar to its Business in the United States of America.\n4\n7. Rights to Intellectual Property. All inventions, improvements, modifications, ideas, styles, trade names and the like,\nwhether or not reduced to writing or stored electronically or otherwise and whether or not protectable by patent, trademark, copyright or other\nintellectual property law, which relate or are susceptible for use directly or indirectly in Employer ’s Business that are originated in whole, or in\npart, by Employee (alone or jointly with others) during his term of employment with Employer, irrespective of whether they were conceived,\ndeveloped, suggested or perfected (i) during Employee’s regular working hours, (ii) with the use of Employer ’s time, materials or facilities or\n(iii) within one (1) year following the termination of Employee’s employment with Employer or otherwise attributable to Employee’s\nemployment with Employer shall become and remain the exclusive property of Employer. If any one or more of the aforementioned are deemed\nin any way to fall within the definition of “work made for hire,” as such term is defined in 17 U.S.C. §101, such work shall be considered a\n“work made for hire,” the copyright of which shall be owned solely by, or assigned or transferred completely and exclusively to Employer. At\nthe request and expense of Employer, Employee shall cooperate with Employer, in applying for, prosecuting, and obtaining patent, trademark,\nservice mark, trade name and copyright registrations in the name of Employer.\nEmployee shall promptly disclose, grant and assign ownership to Employer, for its sole use and benefit, any and all inventions,\nimprovements, information and copyrights (whether patentable or not), which he may develop, acquire, conceive or reduce to practice, while\nemployed by Employer (whether or not during usual working hours) together with all patent applications, letters, patent, copyrights and reissues\nthereof, that may at any time be granted for or upon any such invention, improvement or information; provided, however, that Employee shall\nown any invention, which Employee can demonstrate has no relationship to the Business, and which was neither conceived, nor made by use of\nany of the time, facilities or materials of Employer. In connection therewith:\na.\nEmployee shall without charge, but at the expense of Employer, promptly at all times thereafter execute and\ndeliver such applications, assignments, descriptions and other instruments, as may be reasonably necessary or proper in the opinion of Employer\nto vest title to any such inventions, improvements, technical information, patent applications, patents, copyrights or reissues thereof in\nEmployer, and to enable it to obtain and maintain the entire right and title thereto throughout the world; and\nb. Employee shall render to Employer at its expense (including reimbursement to Employee of reasonable out-of-\npocket expenses incurred by Employee and a reasonable payment for Employee’s time involved in case he is not then in its employ) all such\nassistance as it may require in the prosecution of applications for said patents, copyright or reissues thereof, in the prosecution, or defense of\ninterferences, which may be declared involving any said applications, patents or copyrights and in any litigation in which Employer may be\ninvolved relating to any such patents, inventions, improvements or technical improvements.\n5\nIn the event that Employer is unable to, after reasonable effort, secure Employee’s signature on any document(s) needed to\napply for or secure any copyright or patent, for any reason whatsoever, Employee hereby designates Employer, and its duly authorized officers\nand agents, as Employee’s agent and attorney-in-fact to execute and file any such application(s), and to perform all other legally permitted acts\nto further the prosecution and issuance of copyrights and patents, or similar protection thereon, which shall have the same legal form and effect\nas if executed by Employee.\nEmployee hereby represents and warrants that Employee has fully described to Employer on Schedule A appended hereto any\nidea, invention, product, improvement, computer software program or other equipment or technology related to the Business of Employer\n(“Inventions”), not covered in this Paragraph 7, which prior to his employment with Employer, Employee conceived of or developed, wholly or\nin part, and in which Employee has any right, title or proprietary interest, and whether directly related to Employer’s Business, but which has not\nbeen published or filed with the United States Patent and Trademark or Copyright Offices or any other patent or copyright office or assigned or\ntransferred to Employer. If there is no such Schedule A, Employee represents that Employee has made no such Inventions at the time of signing\nthis Agreement or Employee hereby assigns such Inventions to Employer.\nWith respect to this Paragraph 7, it is agreed and acknowledged that during Employee’s employment, Employer may enter\nother lines of business, which are related or unrelated to its Business, in which case this Agreement would be expanded to cover such new lines\nof business.\nIn the event that Employer gives written notice to Employee that Employer elects not to apply for a patent in a jurisdiction for\nan item above, which is patentable then Employee may, at his own cost and expense, apply for a patent therefor in his own name in such\njurisdiction.\n8. Reasonableness of Restrictions.\na.\nEmployee has carefully read and considered the provisions of Paragraphs 4 through 7 hereof, and having done\nso agrees that the restrictions set forth therein are fair and reasonable and are reasonably required for the protection of the interests of Employer,\nits stockholders, directors, officers, employees, and successors and assigns and that Employer would not have employed Employee in the\nabsence of agreement to such restrictions and that any violation of any provisions of Paragraphs 4 through 7 will result in irreparable injury to\nEmployer. Employee further represents and acknowledges that (i) Employee has been advised by Employer to consult his counsel prior to\nexecution and delivery of this Agreement, and (ii) that Employee has had full opportunity, prior to execution and delivery of this Agreement, to\nreview thoroughly this Agreement with his counsel.\n6\nEmployee further understands and agrees that Employer shall be entitled to preliminary and permanent injunctive relief,\nwithout the necessity of proving actual damages, as well as an equitable accounting of all earnings, profits and other benefit, arising from any\nviolation of Paragraphs 4 through 7, which rights shall be cumulative, and in addition to any other rights or remedies to which Employer may be\nentitled hereunder or now or hereafter existing in law or equity. No delay or omission by a party hereto in exercising any right, remedy or power\nhereunder or existing at law or in equity shall be construed as a waiver thereof.\nb. To the extent any portion of any provision of this Agreement is held to be invalid or unenforceable, the language\nshall be construed by limiting and/or reducing it so as to be enforceable to the extent compatible with applicable law. All remaining provisions\nand/or portions thereof shall remain in full force and effect.\n9. Binding Effect. This Agreement shall be binding upon and inure to the benefit of and be enforceable by Employer and its\nsuccessors and assigns, and shall be binding upon and inure to the benefit of and be enforceable by Employee and his estate, heirs,\nadministrators and legal representatives. This Agreement is not assignable by Employee but is assignable by Employer to any successor to all, or\nsubstantially all, of its Business, assets or other reorganization to which it may become a party, provided that, such assignee assumes all of the\nobligations of Employer hereunder.\n10.\nEntire Agreement and Amendment. This Agreement constitutes the entire agreement between Employer and\nEmployee with respect to the restrictive covenants set forth in Paragraphs 4 through 7 of this Agreement and supersedes all prior agreements,\nwritten or oral with respect thereto. This Agreement cannot be changed or modified, except upon written amendment executed by Employee and\nexecuted on Employer’s behalf by a duly authorized officer.\nNothing in this Agreement shall be construed as changing or modifying the “at will” nature of Employee’s employment with\nEmployer, pursuant to which the Parties acknowledge and agree that Employee’s employment with Employer is “at will” and that Employee’s\nemployment may be terminated by Employee or Employer at any time, for any reason or for no reason.\n11. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New\nJersey, without regard to its conflicts of law provisions.\nAny claim arising out of, or relating to this Agreement including, without limitation, any action commenced by Employer for\npreliminary and permanent injunctive relief or other equitable relief, shall be instituted in any federal or state court in the State of New Jersey.\nEach party agrees not to assert by way of motion, as a defense or otherwise, in any such claim, that such party is not subject personally to the\njurisdiction of such court, that the claim is brought in an inconvenient forum, that the venue of the claim is improper or that this Agreement or\nthe subject matter hereof may not be enforced in or by such court. Each party further irrevocably submits to the exclusive jurisdiction of such\ncourt in any such claim.\n7\nAny and all service of process and any other notice in any such claim shall be effective against any party if given personally or\nby registered mail, return receipt requested, mailed to such party as provided herein. Nothing herein contained shall be deemed to affect the right\nof any party to serve process in any manner permitted by law.\n12. Usage.\nAll pronouns and any variations thereof shall be considered to refer to the masculine, feminine or neuter,\nsingular or plural, as the context may require. All terms defined in the Agreement in their singular or plural forms have correlative meanings\nwhen used herein in their singular or plural forms, respectively. Unless otherwise expressly provided the words “include” “includes” and\n“including” do not limit the preceding words or terms and shall be deemed followed by the words “without limitation.”\n13.\nHeadings. The headings in this Agreement are for reference only, and shall not affect the interpretation of this\nAgreement.\n14. Counterparts. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so\nexecuted and delivered shall be an original, but all such counterparts, together shall constitute one, and the same, instrument. Each counterpart\nmay consist of a number of copies hereof each signed by less than all, but together signed by all of the parties hereto.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.\nINTERPACE DIAGNOSTICS GROUP, INC.\nBy: /s/ Jack Stover\nName: Jack\nStover\nTitle: Chief Executive Officer\nEMPLOYEE\n/s/ Nat Krishnamurti\nName: Nat Krishnamurti\nTitle: Chief Financial Officer, Treasurer, and Secretary\n8 159ce2a2e6936e25efdc717e2a623497.pdf effective_date jurisdiction party term EX-10 .6 .2 22 v321826_ex10-6x2.htm EXHIBIT 10.6 .2\nExhibit 10.6.2\nINVENTION, NON-DISCLOSURE, AND NON-SOLICITATION AGREEMENT\nThis Invention, Non-Disclosure, and Non-Solicitation Agreement is made by and between Intercept Pharmaceuticals, Inc. (the\n“Company”) and David Shapiro (the “Employee”).\nIN CONSIDERATION of the Employee's employment by the Company, and for other good and valuable consideration, the sufficiency\nof which is hereby acknowledged, the Employee agrees as follows:\n1.\nCondition of Employment.\nThe Employee acknowledges that his/her employment with the Company is contingent upon his/her agreement to sign and adhere to the\nprovisions of this Invention, Non-Disclosure, and Non-Solicitation Agreement (the “Agreement”).\n2.\nProprietary and Confidential Information.\n(a)\nThe Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive property of\nthe Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods,\ntechniques, formulas, compositions, compounds, projects, developments, plans (including business and marketing plans), research data, clinical\ndata, financial data (including sales costs, profits, pricing methods), personnel data, computer programs (including software used pursuant to a\nlicense agreement), customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The\nEmployee will not disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any\npurposes (other than in the performance of his/her duties as an employee of the Company) without written approval by an officer of the\nCompany, either during or after his/her employment with the Company, unless and until such Proprietary Information has become public\nknowledge without fault by the Employee.\n(b) The Employee agrees that all files, documents, letters, memoranda, reports, records, data, sketches, drawings, models,\nlaboratory notebooks, program listings, computer equipment or devices, computer programs or other written, photographic, or other tangible\nmaterial containing Proprietary Information, whether created by the Employee or others, which shall come into his/her custody or possession,\nshall be and are the exclusive property of the Company to be used by the Employee only in the performance of his/her duties for the Company\nand shall not be copied or removed from the Company premises except in the pursuit of the business of the Company. All such materials or\ncopies thereof and all tangible property of the Company in the custody or possession of the Employee shall be delivered to the Company, upon\nthe earlier of (i) a request by the Company or (ii) termination of his/her employment. After such delivery, the Employee shall not retain any such\nmaterials or copies thereof or any such tangible property.\n(c)\nThe Employee agrees that his/her obligation not to disclose or to use information and materials of the types set forth in\nparagraphs (a) and (b) above, and his/her obligation to return materials and tangible property set forth in paragraph (b) above also extends to such\ntypes of information, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who may\nhave disclosed or entrusted the same to the Company or to the Employee.\n3.\nInventions.\n(a)\nThe Employee will make full and prompt disclosure to the Company of all inventions, creations, improvements, discoveries,\ntrade secrets, secret processes, technology, know-how, methods, developments, software, and works of authorship or other creative works,\nwhether patentable or not, which are created, made, conceived or reduced to practice by the Employee or under the Employee's direction or\njointly with others during his/her employment by the Company, whether or not during normal working hours or on the premises of the Company\n(all of which are collectively referred to in this Agreement as “Inventions”).\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all\nhis/her right, title and interest in and to all Inventions and all related patents, patent applications, copyrights and copyright applications to the\nmaximum extent permitted by Section 2870 of the California Labor Code or any like statute of any other state. The Employee hereby also waives\nall claims to moral rights in any Inventions. The Employee understands that the provisions of this Agreement requiring assignment of Inventions\nto the Company do not apply to any invention which qualifies fully under the provisions of California Labor Code Section 2870 (attached hereto\nas Exhibit A). The Employee agrees to advise the Company promptly in writing of any inventions that he/she believes meets the criteria in\nSection 2870 and not otherwise disclosed on Exhibit B.\n(c)\nThe Employee agrees to cooperate fully with the Company and to take such further actions as may be necessary or desirable,\nboth during and after his/her employment with the Company, with respect to the procurement, maintenance and enforcement of copyrights,\npatents and other intellectual property rights (both in the United States and foreign countries) relating to Inventions. The Employee shall sign all\npapers, including, without limitation, copyright applications, patent applications, declarations, oaths, formal assignments, assignments of priority\nrights, and powers of attorney, which the Company may deem necessary or desirable in order to protect its rights and interests in any Invention.\nThe Employee further agrees that if the Company is unable, after reasonable effort, to secure the signature of the Employee on any such papers,\nany executive officer of the Company shall be entitled to execute any such papers as the agent and the attorney-in-fact of the Employee, and the\nEmployee hereby irrevocably designates and appoints each executive officer of the Company as his/her agent and attorney-in-fact to execute any\nsuch papers on his/her behalf, and to take any and all actions as the Company may deem necessary or desirable in order to protect its rights and\ninterests in any Invention, under the conditions described in this sentence.\n2\n4.\nOther Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not\nbound by the terms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or\nconfidential or proprietary information in the course of his/her employment with the Company, to refrain from competing, directly or indirectly,\nwith the business of such previous employer or any other party, or to refrain from soliciting employees, customers or suppliers of such previous\nemployer or other party. The Employee further represents that his/her performance of all the terms of this Agreement and the performance of\nhis/her duties as an employee of the Company do not and will not breach any agreement with any prior employer or other party to which the\nEmployee is a party (including without limitation any non-disclosure or non-competition agreement), and that the Employee will not disclose to\nthe Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or\nothers.\n5.\nUnited States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with other persons or with the United\nStates Government, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course\nof work under such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions that are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n6.\nNot An Employment Contract.\nThe Employee acknowledges that this Agreement does not constitute a contract of employment, either express or implied, and does not\nimply that the Company will continue the Employee’s employment for any period of time.\n7.\nGeneral Provisions.\n(a)\nNo Conflict. The Employee represents that the execution and performance by him/her of this Agreement does not and\nwill not conflict with or breach the terms of any other agreement by which the Employee is bound.\n(b)\nEntire Agreement. This Agreement supersedes all prior agreements, written or oral, between the Employee and the\nCompany relating to the subject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in\npart, except by an agreement in writing signed by the Employee and the Company. The Employee agrees that any change or changes in\nhis/her duties, salary or compensation after the signing of this Agreement shall not affect the validity or scope of this Agreement.\n3\n(c)\nSeverability. The invalidity or unenforceability of any provision of this Agreement shall not affect or impair the\nvalidity or enforceability of any other provision of this Agreement.\n(d)\nWaiver. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of\nthat or any other right. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be\nconstrued as a bar to or waiver of any right on any other occasion.\n(e)\nEmployee Acknowledgment and Equitable Remedies. The Employee acknowledges that the restrictions contained in\nthis Agreement are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be\nreasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the Company substantial and\nirrevocable damage and therefore, in the event of any breach or threatened breach of this Agreement, the Employee agrees that the\nCompany, in addition to such other remedies that may be available, shall be entitled to specific performance and other injunctive relief\nwithout posting a bond, and the Employee hereby waives the adequacy of a remedy at law as a defense to such relief.\n(f)\nSuccessors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their\nrespective successors and assigns, including any corporation or entity with which or into which the Company may be merged or which\nmay succeed to all or substantially all of its assets or business, provided however that the obligations of the Employee are personal and\nshall not be assigned by the Employee.\n(g)\nSubsidiaries and Affiliates. The Employee expressly consents to be bound by the provisions of this Agreement for the\nbenefit of the Company or any subsidiary or affiliate thereof to whose employ the Employee may be transferred without the necessity\nthat this Agreement be re-signed at the time of such transfer.\n(h)\nGoverning Law, Forum and Jurisdiction. This Agreement shall be governed by and construed as a sealed instrument\nunder and in accordance with the laws of the State of New York without regard to conflict of laws provisions. Any action, suit, or other\nlegal proceeding which is commenced to resolve any matter arising under or relating to any provision of this Agreement shall be\ncommenced only in a court of the State of New York (or, if appropriate, a federal court located within New York), and the Company and\nthe Employee each consents to the jurisdiction of such a court.\n(i)\nCaptions. The captions of the sections of this Agreement are for convenience of reference only and in no way define,\nlimit or affect the scope or substance of any section of this Agreement.\n4\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS\nAND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nWITNESS our hands and seals:\nINTERCEPT PHARMACEUTICALS, INC.\n/s/ Mark Pruzanski\nMarch 21, 2008\nBy: Mark E. Pruzanski, MD\nDate\nPresident and Chief Executive Officer\nDavid Shapiro, MD\n/s/ David Shapiro\nMarch 31st 2008\nDate\n5\nExhibit A\nCALIFORNIA LABOR CODE SECTION 2870\n(a)\nAny provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her\nrights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time\nwithout using the employer's equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1)\nRelate at the time of conception or reduction to practice of the invention to the employer's business, or actual or\ndemonstrably anticipated research or development of the employer, or\n(2)\nResult from any work performed by the employee for his employer.\n(b)\nTo the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise\nexcluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is\nunenforceable.\n6\nExhibit B\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP:\nTitle\nDate\nIdentifying Number or Brief Description\nX\nNo inventions or improvements\nAdditional Sheets Attached\nSignature of Employee:\n/s/ David Shapiro\nPrinted Name of Employee:\nDavid Shapiro\nDate: 31st March 2008\n7 EX-10.6.2 22 v321826_ex10-6x2.htm EXHIBIT 10.6.2\nExhibit 10.6.2\nINVENTION, NON-DISCLOSURE, AND NON-SOLICITATION AGREEMENT\nThis Invention, Non-Disclosure, and Non-Solicitation Agreement is made by and between Intercept Pharmaceuticals, Inc. (the\n“Company”) and David Shapiro (the “Employee”).\nIN CONSIDERATION of the Employee's employment by the Company, and for other good and valuable consideration, the sufficiency\nof which is hereby acknowledged, the Employee agrees as follows:\n1. Condition of Employment.\nThe Employee acknowledges that his/her employment with the Company is contingent upon his/her agreement to sign and adhere to the\nprovisions of this Invention, Non-Disclosure, and Non-Solicitation Agreement (the “Agreement”).\n2. Proprietary and Confidential Information.\n@) The Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information™) is and shall be the exclusive property of\nthe Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods,\ntechniques, formulas, compositions, compounds, projects, developments, plans (including business and marketing plans), research data, clinical\ndata, financial data (including sales costs, profits, pricing methods), personnel data, computer programs (including software used pursuant to a\nlicense agreement), customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The\nEmployee will not disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any\npurposes (other than in the performance of his/her duties as an employee of the Company) without written approval by an officer of the\nCompany, either during or after his/her employment with the Company, unless and until such Proprietary Information has become public\nknowledge without fault by the Employee.\n(b) The Employee agrees that all files, documents, letters, memoranda, reports, records, data, sketches, drawings, models,\nlaboratory notebooks, program listings, computer equipment or devices, computer programs or other written, photographic, or other tangible\nmaterial containing Proprietary Information, whether created by the Employee or others, which shall come into his/her custody or possession,\nshall be and are the exclusive property of the Company to be used by the Employee only in the performance of his/her duties for the Company\nand shall not be copied or removed from the Company premises except in the pursuit of the business of the Company. All such materials or\ncopies thereof and all tangible property of the Company in the custody or possession of the Employee shall be delivered to the Company, upon\nthe earlier of (i) a request by the Company or (ii) termination of his/her employment. After such delivery, the Employee shall not retain any such\nmaterials or copies thereof or any such tangible property.\n(0 The Employee agrees that his/her obligation not to disclose or to use information and materials of the types set forth in\nparagraphs (a) and (b) above, and his/her obligation to return materials and tangible property set forth in paragraph (b) above also extends to such\ntypes of information, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who may\nhave disclosed or entrusted the same to the Company or to the Employee.\n3. Inventions.\n@) The Employee will make full and prompt disclosure to the Company of all inventions, creations, improvements, discoveries,\ntrade secrets, secret processes, technology, know-how, methods, developments, software, and works of authorship or other creative works,\nwhether patentable or not, which are created, made, conceived or reduced to practice by the Employee or under the Employee's direction or\njointly with others during his/her employment by the Company, whether or not during normal working hours or on the premises of the Company\n(all of which are collectively referred to in this Agreement as “Inventions”).\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all\nhis/her right, title and interest in and to all Inventions and all related patents, patent applications, copyrights and copyright applications to the\nmaximum extent permitted by Section 2870 of the California Labor Code or any like statute of any other state. The Employee hereby also waives\nall claims to moral rights in any Inventions. The Employee understands that the provisions of this Agreement requiring assignment of Inventions\nto the Company do not apply to any invention which qualifies fully under the provisions of California Labor Code Section 2870 (attached hereto\nas Exhibit A). The Employee agrees to advise the Company promptly in writing of any inventions that he/she believes meets the criteria in\nSection 2870 and not otherwise disclosed on Exhibit B.\n(0 The Employee agrees to cooperate fully with the Company and to take such further actions as may be necessary or desirable,\nboth during and after his/her employment with the Company, with respect to the procurement, maintenance and enforcement of copyrights,\npatents and other intellectual property rights (both in the United States and foreign countries) relating to Inventions. The Employee shall sign all\npapers, including, without limitation, copyright applications, patent applications, declarations, oaths, formal assignments, assignments of priority\nrights, and powers of attorney, which the Company may deem necessary or desirable in order to protect its rights and interests in any Invention.\nThe Employee further agrees that if the Company is unable, after reasonable effort, to secure the signature of the Employee on any such papers,\nany executive officer of the Company shall be entitled to execute any such papers as the agent and the attorney-in-fact of the Employee, and the\nEmployee hereby irrevocably designates and appoints each executive officer of the Company as his/her agent and attorney-in-fact to execute any\nsuch papers on his/her behalf, and to take any and all actions as the Company may deem necessary or desirable in order to protect its rights and\ninterests in any Invention, under the conditions described in this sentence.\n4. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not\nbound by the terms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or\nconfidential or proprietary information in the course of his/her employment with the Company, to refrain from competing, directly or indirectly,\nwith the business of such previous employer or any other party, or to refrain from soliciting employees, customers or suppliers of such previous\nemployer or other party. The Employee further represents that his/her performance of all the terms of this Agreement and the performance of\nhis/her duties as an employee of the Company do not and will not breach any agreement with any prior employer or other party to which the\nEmployee is a party (including without limitation any non-disclosure or non-competition agreement), and that the Employee will not disclose to\nthe Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or\nothers.\n5. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with other persons or with the United\nStates Government, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course\nof work under such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions that are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n6. Not An Employment Contract.\nThe Employee acknowledges that this Agreement does not constitute a contract of employment, either express or implied, and does not\nimply that the Company will continue the Employee’s employment for any period of time.\n7. General Provisions.\n@) No Conflict. The Employee represents that the execution and performance by him/her of this Agreement does not and\nwill not conflict with or breach the terms of any other agreement by which the Employee is bound.\n(b) Entire Agreement. This Agreement supersedes all prior agreements, written or oral, between the Employee and the\nCompany relating to the subject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in\npart, except by an agreement in writing signed by the Employee and the Company. The Employee agrees that any change or changes in\nhis/her duties, salary or compensation after the signing of this Agreement shall not affect the validity or scope of this Agreement.\n \n(©) Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect or impair the\nvalidity or enforceability of any other provision of this Agreement.\n(d Waiver. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of\nthat or any other right. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be\nconstrued as a bar to or waiver of any right on any other occasion.\n(e) Employee Acknowledgment and Equitable Remedies. The Employee acknowledges that the restrictions contained in\nthis Agreement are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be\nreasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the Company substantial and\nirrevocable damage and therefore, in the event of any breach or threatened breach of this Agreement, the Employee agrees that the\nCompany, in addition to such other remedies that may be available, shall be entitled to specific performance and other injunctive relief\nwithout posting a bond, and the Employee hereby waives the adequacy of a remedy at law as a defense to such relief.\n® Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their\nrespective successors and assigns, including any corporation or entity with which or into which the Company may be merged or which\nmay succeed to all or substantially all of its assets or business, provided however that the obligations of the Employee are personal and\nshall not be assigned by the Employee.\n(® Subsidiaries and Affiliates. The Employee expressly consents to be bound by the provisions of this Agreement for the\nbenefit of the Company or any subsidiary or affiliate thereof to whose employ the Employee may be transferred without the necessity\nthat this Agreement be re-signed at the time of such transfer.\n(h) Governing Law, Forum and Jurisdiction. This Agreement shall be governed by and construed as a sealed instrument\nunder and in accordance with the laws of the State of New York without regard to conflict of laws provisions. Any action, suit, or other\nlegal proceeding which is commenced to resolve any matter arising under or relating to any provision of this Agreement shall be\ncommenced only in a court of the State of New York (or, if appropriate, a federal court located within New York), and the Company and\nthe Employee each consents to the jurisdiction of such a court.\n@) Captions. The captions of the sections of this Agreement are for convenience of reference only and in no way define,\nlimit or affect the scope or substance of any section of this Agreement.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS\nAND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nWITNESS our hands and seals:\nINTERCEPT PHARMACEUTICALS, INC.\n/s/ Mark Pruzanski March 21, 2008 By: Mark E. Pruzanski, MD Date\nPresident and Chief Executive Officer\nDavid Shapiro, MD\n/s/ David Shapiro March 3152008 Date\nExhibit A\nCALIFORNIA LABOR CODE SECTION 2870\n@) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her\nrights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time\nwithout using the employer's equipment, supplies, facilities, or trade secret information except for those inventions that either:\nD Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or\ndemonstrably anticipated research or development of the employer, or\n2 Result from any work performed by the employee for his employer.\n(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise\nexcluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is\nunenforceable.\nTitle Date\nSignature of Employee:\nPrinted Name of Employee:\nDate: 315! March 2008\nExhibit B\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP:\nIdentifying Number or Brief Description\nNo inventions or improvements\nAdditional Sheets Attached\n/s/ David Shapiro\nDavid Shapiro EX-10.6.2 22 v321826_ex10-6x2.htm EXHIBIT 10.6.2\nExhibit 10.6.2\nINVENTION, NON-DISCLOSURE, AND NON-SOLICITATION AGREEMENT\nThis Invention, Non-Disclosure, and Non-Solicitation Agreement is made by and between Intercept Pharmaceuticals, Inc. (the\n"Company") and David Shapiro (the "Employee").\nIN CONSIDERATION of the Employee's employment by the Company, and for other good and valuable consideration, the sufficiency\nof which is hereby acknowledged, the Employee agrees as follows:\n1.\nCondition of Employment.\nThe Employee acknowledges that his/her employment with the Company is contingent upon his/her agreement to sign and adhere to the\nprovisions of this Invention, Non-Disclosure, and Non-Solicitation Agreement (the "Agreement").\n2.\nProprietary. and Confidential Information.\n(a)\nThe Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany's business, business relationships or financial affairs (collectively, "Proprietary Information") is and shall be the exclusive property of\nthe Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods,\ntechniques, formulas, compositions, compounds, projects, developments, plans (including business and marketing plans), research data, clinical\ndata, financial data (including sales costs, profits, pricing methods), personnel data, computer programs (including software used pursuant to a\nlicense agreement), customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The\nEmployee will not disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any\npurposes (other than in the performance of his/her duties as an employee of the Company) without written approval by an officer of the\nCompany, either during or after his/her employment with the Company, unless and until such Proprietary Information has become public\nknowledge without fault by the Employee.\n(b)\nThe Employee agrees that all files, documents, letters, memoranda, reports, records, data, sketches, drawings, models,\nlaboratory\nnotebooks,\nprogram listings, computer equipment or devices, computer programs or other written, photographic, or other tangible\nmaterial containing Proprietary Information, whether created by the Employee or others, which shall come into his/her custody or possession,\nshall be and are the exclusive property of the Company to be used by the Employee only in the performance of his/her duties for the Company\nand shall not be copied or removed from the Company premises except in the pursuit of the business of the Company. All such materials or\ncopies thereof and all tangible property of the Company in the custody or possession of the Employee shall be delivered to the Company, upon\nthe earlier of (i) a request by the Company or (ii) termination of his/her employment. After such delivery, the Employee shall not retain any such\nmaterials or copies thereof or any such tangible property.\n(c) The Employee agrees that his/her obligation not to disclose or to use information and materials of the types set forth in\nparagraphs (a) and (b) above, and his/her obligation to return materials and tangible property set forth in paragraph (b) above also extends to such\ntypes of information, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who may\nhave disclosed or entrusted the same to the Company or to the Employee.\n3.\nInventions.\n(a)\nThe Employee will make full and prompt disclosure to the Company of all inventions, creations, improvements, discoveries,\ntrade secrets, secret processes, technology, know-how, methods, developments, software, and works of authorship or other creative works,\nwhether patentable or not, which are created, made, conceived or reduced to practice by the Employee or under the Employee's direction or\njointly with others during his/her employment by the Company, whether or not during normal working hours or on the premises of the Company\n(all of which are collectively referred to in this Agreement as "Inventions").\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all\nhis/her right, title and interest in and to all Inventions and all related patents, patent applications, copyrights and copyright applications to the\nmaximum extent permitted by Section 2870 of the California Labor Code or any like statute of any other state. The Employee hereby also waives\nall claims to moral rights in any Inventions. The Employee understands that the provisions of this Agreement requiring assignment of Inventions\nto the Company do not apply to any invention which qualifies fully under the provisions of California Labor Code Section 2870 (attached hereto\nas Exhibit A). The Employee agrees to advise the Company promptly in writing of any inventions that he/she believes meets the criteria in\nSection 2870 and not otherwise disclosed on Exhibit B.\n(c)\nThe Employee agrees to cooperate fully with the Company and to take such further actions as may be necessary or desirable,\nboth\nduring and after his/her employment with the Company, with respect to the procurement, maintenance and enforcement of copyrights,\npatents and other intellectual property rights (both in the United States and foreign countries) relating to Inventions. The Employee shall sign all\npapers, including, without limitation, copyright applications, patent applications, declarations, oaths, formal assignments, assignments of priority\nrights,\nand powers of attorney, which the Company may deem necessary or desirable in order to protect its rights and interests in any Invention.\nThe Employee further agrees that if the Company is unable, after reasonable effort, to secure the signature of the Employee on any such papers,\nany executive officer of the Company shall be entitled to execute any such papers as the agent and the attorney-in-fact of the Employee, and\nthe\nEmployee\nhereby\nirrevocably\ndesignates\nand\nappoints\neach\nexecutive\nofficer\nof\nthe\nCompany\nas\nhis/her\nagent\nand\nattorney-in-fact\nto\nexecute\nany\nsuch papers on his/her behalf, and to take any and all actions as the Company may deem necessary or desirable in order to protect its rights and\ninterests in any Invention, under the conditions described in this sentence.\n2\n4.\nOther Agreements\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not\nbound by the terms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or\nconfidential or proprietary information in the course of his/her employment with the Company, to refrain from competing, directly or indirectly,\nwith the business of such previous employer or any other party, or to refrain from soliciting employees, customers or suppliers of such previous\nemployer or other party. The Employee further represents that his/her performance of all the terms of this Agreement and the performance of\nhis/her duties as an employee of the Company do not and will not breach any agreement with any prior employer or other party to which the\nEmployee is a party (including without limitation any non-disclosure or non-competition agreement), and that the Employee will not disclose to\nthe Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or\nothers.\n5.\nUnited States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with other persons or with the United\nStates Government, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course\nof work under such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations\nand\nrestrictions that are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n6.\nNot An Employment Contract\nThe Employee acknowledges that this Agreement does not constitute a contract of employment, either express or implied, and does not\nimply that the Company will continue the Employee's employment for any period of time.\n7.\nGeneral Provisions.\n(a)\nNo Conflict. The Employee represents that the execution and performance by him/her of this Agreement does not and\nwill not conflict with or breach the terms of any other agreement by which the Employee is bound.\n(b)\nEntire Agreement. This Agreement supersedes all prior agreements, written or oral, between the Employee and the\nCompany relating to the subject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in\npart, except by an agreement in writing signed by the Employee and the Company. The Employee agrees that any change or changes in\nhis/her duties, salary or compensation after the signing of this Agreement shall not affect the validity or scope of this Agreement.\n3\n(c)\nSeverability.. The invalidity or unenforceability of any provision of this Agreement shall not affect or impair the\nvalidity or enforceability of any other provision of this Agreement.\n(d)\nWaiver. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of\nthat or any other right. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be\nconstrued as a bar to or waiver of any right on any other occasion.\n(e)\nEmployee Acknowledgment and Equitable Remedies. The Employee acknowledges that the restrictions contained in\nthis Agreement are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be\nreasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the Company substantial and\nirrevocable damage and therefore, in the event of any breach or threatened breach of this Agreement, the Employee agrees that the\nCompany, in addition to such other remedies that may be available, shall be entitled to specific performance and other injunctive relief\nwithout posting a bond, and the Employee hereby waives the adequacy of a remedy at law as a defense to such relief.\n(f)\nSuccessors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their\nrespective successors and assigns, including any corporation or entity with which or into which the Company may be merged or which\nmay succeed to all or substantially all of its assets or business, provided however that the obligations of the Employee are persona and\nshall not be assigned by the Employee.\n(g)\nSubsidiaries and Affiliates. The Employee expressly consents to be bound by the provisions of this Agreement for the\nbenefit of the Company or any subsidiary or affiliate thereof to whose employ the Employee may be transferred without the necessity\nthat this Agreement be re-signed at the time of such transfer.\n(h)\nGoverning Law, Forum and Jurisdiction. This Agreement shall be governed by and construed as a sealed instrument\nunder and in accordance with the laws of the State of New York without regard to conflict of laws provisions. Any action, suit, or other\nlegal proceeding which is commenced to resolve any matter arising under or relating to any provision of this Agreement shall be\ncommenced only in a court of the State of New York (or, if appropriate, a federal court located within New York), and the Company and\nthe Employee each consents to the jurisdiction of such a court.\n(i) Captions. The captions of the sections of this Agreement are for convenience of reference only and in no way define,\nlimit or affect the scope or substance of any section of this Agreement.\n4\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS\nAND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nWITNESS our hands and seals:\nINTERCEPT PHARMACEUTICALS, INC.\n/s/ Mark Pruzanski\nMarch 21, 2008\nBy: Mark E. Pruzanski, MD\nDate\nPresident and Chief Executive Officer\nDavid Shapiro, MD\n/s/ David Shapiro\nMarch 31st 2008\nDate\n5\nExhibit A\nCALIFORNIA LABOR CODE SECTION 2870\n(a)\nAny provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her\nrights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time\nwithout using the employer's equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1)\nRelate at the time of conception or reduction to practice of the invention to the employer's business, or actual or\ndemonstrably anticipated research or development of the employer, or\n(2)\nResult from any work performed by the employee for his employer.\n(b)\nTo the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise\nexcluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is\nunenforceable.\n6\nExhibit B\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP:\nTitle\nDate\nIdentifying Number or Brief Description\nX\nNo inventions or improvements\nAdditional Sheets Attached\nSignature of Employee:\n/s/ David Shapiro\nPrinted Name of Employee:\nDavid Shapiro\nDate: 31st March 2008\n7 EX-10 .6 .2 22 v321826_ex10-6x2.htm EXHIBIT 10.6 .2\nExhibit 10.6.2\nINVENTION, NON-DISCLOSURE, AND NON-SOLICITATION AGREEMENT\nThis Invention, Non-Disclosure, and Non-Solicitation Agreement is made by and between Intercept Pharmaceuticals, Inc. (the\n“Company”) and David Shapiro (the “Employee”).\nIN CONSIDERATION of the Employee's employment by the Company, and for other good and valuable consideration, the sufficiency\nof which is hereby acknowledged, the Employee agrees as follows:\n1.\nCondition of Employment.\nThe Employee acknowledges that his/her employment with the Company is contingent upon his/her agreement to sign and adhere to the\nprovisions of this Invention, Non-Disclosure, and Non-Solicitation Agreement (the “Agreement”).\n2.\nProprietary and Confidential Information.\n(a)\nThe Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive property of\nthe Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods,\ntechniques, formulas, compositions, compounds, projects, developments, plans (including business and marketing plans), research data, clinical\ndata, financial data (including sales costs, profits, pricing methods), personnel data, computer programs (including software used pursuant to a\nlicense agreement), customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The\nEmployee will not disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any\npurposes (other than in the performance of his/her duties as an employee of the Company) without written approval by an officer of the\nCompany, either during or after his/her employment with the Company, unless and until such Proprietary Information has become public\nknowledge without fault by the Employee.\n(b) The Employee agrees that all files, documents, letters, memoranda, reports, records, data, sketches, drawings, models,\nlaboratory notebooks, program listings, computer equipment or devices, computer programs or other written, photographic, or other tangible\nmaterial containing Proprietary Information, whether created by the Employee or others, which shall come into his/her custody or possession,\nshall be and are the exclusive property of the Company to be used by the Employee only in the performance of his/her duties for the Company\nand shall not be copied or removed from the Company premises except in the pursuit of the business of the Company. All such materials or\ncopies thereof and all tangible property of the Company in the custody or possession of the Employee shall be delivered to the Company, upon\nthe earlier of (i) a request by the Company or (ii) termination of his/her employment. After such delivery, the Employee shall not retain any such\nmaterials or copies thereof or any such tangible property.\n(c)\nThe Employee agrees that his/her obligation not to disclose or to use information and materials of the types set forth in\nparagraphs (a) and (b) above, and his/her obligation to return materials and tangible property set forth in paragraph (b) above also extends to such\ntypes of information, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who may\nhave disclosed or entrusted the same to the Company or to the Employee.\n3.\nInventions.\n(a)\nThe Employee will make full and prompt disclosure to the Company of all inventions, creations, improvements, discoveries,\ntrade secrets, secret processes, technology, know-how, methods, developments, software, and works of authorship or other creative works,\nwhether patentable or not, which are created, made, conceived or reduced to practice by the Employee or under the Employee's direction or\njointly with others during his/her employment by the Company, whether or not during normal working hours or on the premises of the Company\n(all of which are collectively referred to in this Agreement as “Inventions”).\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all\nhis/her right, title and interest in and to all Inventions and all related patents, patent applications, copyrights and copyright applications to the\nmaximum extent permitted by Section 2870 of the California Labor Code or any like statute of any other state. The Employee hereby also waives\nall claims to moral rights in any Inventions. The Employee understands that the provisions of this Agreement requiring assignment of Inventions\nto the Company do not apply to any invention which qualifies fully under the provisions of California Labor Code Section 2870 (attached hereto\nas Exhibit A). The Employee agrees to advise the Company promptly in writing of any inventions that he/she believes meets the criteria in\nSection 2870 and not otherwise disclosed on Exhibit B.\n(c)\nThe Employee agrees to cooperate fully with the Company and to take such further actions as may be necessary or desirable,\nboth during and after his/her employment with the Company, with respect to the procurement, maintenance and enforcement of copyrights,\npatents and other intellectual property rights (both in the United States and foreign countries) relating to Inventions. The Employee shall sign all\npapers, including, without limitation, copyright applications, patent applications, declarations, oaths, formal assignments, assignments of priority\nrights, and powers of attorney, which the Company may deem necessary or desirable in order to protect its rights and interests in any Invention.\nThe Employee further agrees that if the Company is unable, after reasonable effort, to secure the signature of the Employee on any such papers,\nany executive officer of the Company shall be entitled to execute any such papers as the agent and the attorney-in-fact of the Employee, and the\nEmployee hereby irrevocably designates and appoints each executive officer of the Company as his/her agent and attorney-in-fact to execute any\nsuch papers on his/her behalf, and to take any and all actions as the Company may deem necessary or desirable in order to protect its rights and\ninterests in any Invention, under the conditions described in this sentence.\n2\n4.\nOther Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not\nbound by the terms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or\nconfidential or proprietary information in the course of his/her employment with the Company, to refrain from competing, directly or indirectly,\nwith the business of such previous employer or any other party, or to refrain from soliciting employees, customers or suppliers of such previous\nemployer or other party. The Employee further represents that his/her performance of all the terms of this Agreement and the performance of\nhis/her duties as an employee of the Company do not and will not breach any agreement with any prior employer or other party to which the\nEmployee is a party (including without limitation any non-disclosure or non-competition agreement), and that the Employee will not disclose to\nthe Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or\nothers.\n5.\nUnited States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with other persons or with the United\nStates Government, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course\nof work under such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions that are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n6.\nNot An Employment Contract.\nThe Employee acknowledges that this Agreement does not constitute a contract of employment, either express or implied, and does not\nimply that the Company will continue the Employee’s employment for any period of time.\n7.\nGeneral Provisions.\n(a)\nNo Conflict. The Employee represents that the execution and performance by him/her of this Agreement does not and\nwill not conflict with or breach the terms of any other agreement by which the Employee is bound.\n(b)\nEntire Agreement. This Agreement supersedes all prior agreements, written or oral, between the Employee and the\nCompany relating to the subject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in\npart, except by an agreement in writing signed by the Employee and the Company. The Employee agrees that any change or changes in\nhis/her duties, salary or compensation after the signing of this Agreement shall not affect the validity or scope of this Agreement.\n3\n(c)\nSeverability. The invalidity or unenforceability of any provision of this Agreement shall not affect or impair the\nvalidity or enforceability of any other provision of this Agreement.\n(d)\nWaiver. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of\nthat or any other right. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be\nconstrued as a bar to or waiver of any right on any other occasion.\n(e)\nEmployee Acknowledgment and Equitable Remedies. The Employee acknowledges that the restrictions contained in\nthis Agreement are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be\nreasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the Company substantial and\nirrevocable damage and therefore, in the event of any breach or threatened breach of this Agreement, the Employee agrees that the\nCompany, in addition to such other remedies that may be available, shall be entitled to specific performance and other injunctive relief\nwithout posting a bond, and the Employee hereby waives the adequacy of a remedy at law as a defense to such relief.\n(f)\nSuccessors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their\nrespective successors and assigns, including any corporation or entity with which or into which the Company may be merged or which\nmay succeed to all or substantially all of its assets or business, provided however that the obligations of the Employee are personal and\nshall not be assigned by the Employee.\n(g)\nSubsidiaries and Affiliates. The Employee expressly consents to be bound by the provisions of this Agreement for the\nbenefit of the Company or any subsidiary or affiliate thereof to whose employ the Employee may be transferred without the necessity\nthat this Agreement be re-signed at the time of such transfer.\n(h)\nGoverning Law, Forum and Jurisdiction. This Agreement shall be governed by and construed as a sealed instrument\nunder and in accordance with the laws of the State of New York without regard to conflict of laws provisions. Any action, suit, or other\nlegal proceeding which is commenced to resolve any matter arising under or relating to any provision of this Agreement shall be\ncommenced only in a court of the State of New York (or, if appropriate, a federal court located within New York), and the Company and\nthe Employee each consents to the jurisdiction of such a court.\n(i)\nCaptions. The captions of the sections of this Agreement are for convenience of reference only and in no way define,\nlimit or affect the scope or substance of any section of this Agreement.\n4\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS\nAND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nWITNESS our hands and seals:\nINTERCEPT PHARMACEUTICALS, INC.\n/s/ Mark Pruzanski\nMarch 21, 2008\nBy: Mark E. Pruzanski, MD\nDate\nPresident and Chief Executive Officer\nDavid Shapiro, MD\n/s/ David Shapiro\nMarch 31st 2008\nDate\n5\nExhibit A\nCALIFORNIA LABOR CODE SECTION 2870\n(a)\nAny provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her\nrights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time\nwithout using the employer's equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1)\nRelate at the time of conception or reduction to practice of the invention to the employer's business, or actual or\ndemonstrably anticipated research or development of the employer, or\n(2)\nResult from any work performed by the employee for his employer.\n(b)\nTo the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise\nexcluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is\nunenforceable.\n6\nExhibit B\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP:\nTitle\nDate\nIdentifying Number or Brief Description\nX\nNo inventions or improvements\nAdditional Sheets Attached\nSignature of Employee:\n/s/ David Shapiro\nPrinted Name of Employee:\nDavid Shapiro\nDate: 31st March 2008\n7 2572bba862c654e665039f634c132fea.pdf effective_date jurisdiction party term EX-99.(D)(4) 9 d110802dex99d4.htm EX-99.(D)(4)\nExhibit (d)(4)\nCONFIDENTIAL\nAMENDMENT NO. 1 TO\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Amendment No. 1 to Mutual Non-Disclosure Agreement (this “Amendment”), dated as of December 11, 2015 (the “Amendment\nDate”), is made between Anadigics, Inc. (“Anadigics”) and II-VI Incorporated (“Counterparty”) with reference to the following facts:\nA. Anadigics and Counterparty entered into a Mutual Non-Disclosure Agreement dated as of November 11, 2015 (the “Agreement”).\nB. The parties desire to provide for certain “clean room” procedures as set forth below.\nC. Any term defined in the Agreement and used in this Amendment shall have the meaning ascribed to it in the Agreement.\nNOW, THEREFORE, in respect of the foregoing premises and the covenants set forth herein, the parties hereto agree as follows:\n1. Clean Room Procedures. The parties hereby amend the Agreement to add the following procedures and protocols with respect to the\nreview and analysis by the representatives of Counterparty listed on Exhibit A (the “Clean Room Team”) of certain redacted contracts containing\nconfidential Evaluation Material (as determined by the following procedures and protocols, “Clean Room Information”). The parties agree to\nadhere to the following procedures and protocols in connection with the Clean Room Information:\n(a) A separate electronic, password-protected virtual clean room database on the diligence datasite (the “Clean Room”) will be\nadministered and made available by Anadigics or its designated representatives solely to the Clean Room Team. Any and all and only\nsuch Evaluation Material as is made available in or through the Clean Room and not otherwise made available by Anadigics to\nCounterparty or any of its representatives outside of the Clean Room shall be deemed to be Clean Room Information.\n(b) Anadigics or its designated representatives will determine, in their sole discretion, which Evaluation Material will be made\navailable for review and analysis by the Clean Room Team in the Clean Room.\n(c) Each member of the Clean Room Team will use Clean Room Information only to prepare written analyses or summaries to\nevaluate a Transaction, subject to the restrictions described herein.\n(d) The members of the Clean Room Team will be the only persons (i) permitted access to the Clean Room and (ii) subject to the\nterms of this Amendment, authorized to review Clean Room Information.\n(e) No disclosure, exchange or other communication, direct or indirect, of Clean Room Information, or any analyses, summaries,\nnotes, memos or other\ndocuments or information created from or with respect thereto, are permitted between the Clean Room Team, on one hand, and\nCounterparty or any of Counterparty’s other representatives, on the other hand, other than:\n(i) Written, videotaped, digitized or otherwise recorded analyses or summaries prepared by the Clean Room Team with respect to\nClean Room Information that (A) is general and summary in nature and (B) does not contain or disclose Restricted Information (as\ndefined in Exhibit B). Such written analyses and summaries shall be prepared in accordance with the guidelines set forth on Exhibit\nB.\n(ii) Oral communications between members of the Clean Room Team, on the one hand, and Counterparty and Counterparty’s\nRepresentatives that are not members of the Clean Room Team, on the other hand, of Clean Room Information (or any written,\nvideotaped, digitized or otherwise recorded analyses or summaries thereof prepared by members of the Clean Room Team) (A) shall\nbe general and summary in nature and (B) shall not contain or disclose Restricted Information. Such oral communications shall be\nsubject to the same guidelines set forth on Exhibit B applicable to the preparation of analyses or summaries as provided above.\nAny such analyses or summaries or any oral communications of Clean Room Information shall be deemed to be Evaluation Material\nunder the Agreement and Counterparty shall keep such information confidential in accordance with the terms of the Agreement.\n3. Full Force and Effect. The Agreement, as amended by this Amendment, remains in full force and effect.\n4. Counterparts. This Amendment may be executed in counterparts, all of which together shall constitute one and the same agreement.\nIN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment as of the Amendment Date.\nAnadigics, Inc.\nBy: /s/ Terry Gallagher\nIts: Executive Vice President and CFO\nII-VI Incorporated\nBy: /s/ Walter R. Bashaw\nIts: General Counsel and Secretary\nEXHIBIT A\nClean Team Members\nII-VI Incorporated:\nGiovanni Barbarossa, Chief Technology Officer\nWalter R. Bashaw II, Esquire, General Counsel\nMichelle R. McCreery Repp, Corporate Counsel and Director of Legal Affairs\nSusan J. Messer, Esquire – Sherrard, German & Kelly, P.C .\nD. Mark McMillan, Esquire – K&L Gates:\nSuch other as approved by email upon request by Kristina Brown, General Counsel\nEXHIBIT B\nNo Clean Team Member shall include any of the following information orally or in any written analysis or summary:\n• Technical or other specification information related to products and services supplied by Anadigics (excluding, for the avoidance of doubt, the\nterms of any exclusivity provisions);\n• Prices charged for any products or services; or\n• Quantities sold or planned to be sold.\nIn addition, no Clean Team Member shall include any information that Anadigics specifically requests in writing not to be included in any oral\ndisclosure, written analysis or summary (any such Evaluation Material, collectively known as “Restricted Information”). EX-99.(D)(4) 9 d110802dex99d4.htm EX-99.(D)(4)\nExhibit (d)(4)\nCONFIDENTIAL\nAMENDMENT NO.1TO\nMUTUAL NON-DISCL.OSURE AGREEMENT\nThis Amendment No. 1 to Mutual Non-Disclosure Agreement (this “Amendment”), dated as of December 11, 2015 (the “Amendment\nDate”), is made between Anadigics, Inc. (“Anadigics”) and II-VI Incorporated (“Counterparty”) with reference to the following facts:\n \nA. Anadigics and Counterparty entered into a Mutual Non-Disclosure Agreement dated as of November 11, 2015 (the “Agreement”).\n \nB. The parties desire to provide for certain “clean room” procedures as set forth below.\nC. Any term defined in the Agreement and used in this Amendment shall have the meaning ascribed to it in the Agreement.\nNOW, THEREFORE, in respect of the foregoing premises and the covenants set forth herein, the parties hereto agree as follows:\n1. Clean Room Procedures. The parties hereby amend the Agreement to add the following procedures and protocols with respect to the\nreview and analysis by the representatives of Counterparty listed on Exhibit A (the “Clean Room Team”) of certain redacted contracts containing\nconfidential Evaluation Material (as determined by the following procedures and protocols, “Clean Room Information”). The parties agree to\nadhere to the following procedures and protocols in connection with the Clean Room Information:\n(a) A separate electronic, password-protected virtual clean room database on the diligence datasite (the “Clean Room”) will be\nadministered and made available by Anadigics or its designated representatives solely to the Clean Room Team. Any and all and only\nsuch Evaluation Material as is made available in or through the Clean Room and not otherwise made available by Anadigics to\nCounterparty or any of its representatives outside of the Clean Room shall be deemed to be Clean Room Information.\n(b) Anadigics or its designated representatives will determine, in their sole discretion, which Evaluation Material will be made\navailable for review and analysis by the Clean Room Team in the Clean Room.\n(c) Each member of the Clean Room Team will use Clean Room Information only to prepare written analyses or summaries to\nevaluate a Transaction, subject to the restrictions described herein.\n(d) The members of the Clean Room Team will be the only persons (i) permitted access to the Clean Room and (ii) subject to the\nterms of this Amendment, authorized to review Clean Room Information.\n(e) No disclosure, exchange or other communication, direct or indirect, of Clean Room Information, or any analyses, summaries,\nnotes, memos or other\ndocuments or information created from or with respect thereto, are permitted between the Clean Room Team, on one hand, and\nCounterparty or any of Counterparty’s other representatives, on the other hand, other than:\n(i) Written, videotaped, digitized or otherwise recorded analyses or summaries prepared by the Clean Room Team with respect to\nClean Room Information that (A) is general and summary in nature and (B) does not contain or disclose Restricted Information (as\ndefined in Exhibit B). Such written analyses and summaries shall be prepared in accordance with the guidelines set forth on Exhibit\nB.\n(ii) Oral communications between members of the Clean Room Team, on the one hand, and Counterparty and Counterparty’s\nRepresentatives that are not members of the Clean Room Team, on the other hand, of Clean Room Information (or any written,\nvideotaped, digitized or otherwise recorded analyses or summaries thereof prepared by members of the Clean Room Team) (A) shall\nbe general and summary in nature and (B) shall not contain or disclose Restricted Information. Such oral communications shall be\nsubject to the same guidelines set forth on Exhibit B applicable to the preparation of analyses or summaries as provided above.\nAny such analyses or summaries or any oral communications of Clean Room Information shall be deemed to be Evaluation Material\nunder the Agreement and Counterparty shall keep such information confidential in accordance with the terms of the Agreement.\n3. Full Force and Effect. The Agreement, as amended by this Amendment, remains in full force and effect.\n4. Counterparts. This Amendment may be executed in counterparts, all of which together shall constitute one and the same agreement.\nIN WITNESS WHEREOQF, the parties hereto have executed and delivered this Amendment as of the Amendment Date.\nAnadigics, Inc.\nBy: /s/ Terry Gallagher\nIts: Executive Vice President and CFO\nII-VI Incorporated\nBy: /s/ Walter R. Bashaw\nIts: General Counsel and Secretary\nEXHIBIT A\nClean Team Members\nII-VI Incorporated:\nGiovanni Barbarossa, Chief Technology Officer\nWalter R. Bashaw II, Esquire, General Counsel\nMichelle R. McCreery Repp, Corporate Counsel and Director of Legal Affairs\nSusan J. Messer, Esquire — Sherrard, German & Kelly, P.C.\nD. Mark McMillan, Esquire — K&L Gates:\nSuch other as approved by email upon request by Kristina Brown, General Counsel\nEXHIBIT B\nNo Clean Team Member shall include any of the following information orally or in any written analysis or summary:\n+ Technical or other specification information related to products and services supplied by Anadigics (excluding, for the avoidance of doubt, the\nterms of any exclusivity provisions);\n* Prices charged for any products or services; or\n* Quantities sold or planned to be sold.\nIn addition, no Clean Team Member shall include any information that Anadigics specifically requests in writing not to be included in any oral\ndisclosure, written analysis or summary (any such Evaluation Material, collectively known as “Restricted Information™). EX-99.(D)(4) 9 d110802dex99d4.htm EX-99.(D)(4)\nExhibit (d)(4)\nCONFIDENTIAL\nAMENDMENT NO. 1 TO\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Amendment No. 1 to Mutual Non-Disclosure Agreement (this "Amendment"), dated as of December 11, 2015 (the "Amendment\nDate"), is made between Anadigics, Inc. ("Anadigics") and II-VI Incorporated ("Counterparty.") with reference to the following facts:\nA. Anadigics and Counterparty entered into a Mutual Non-Disclosure Agreement dated as of November 11, 2015 (the "Agreement").\nB.\nThe parties desire to provide for certain "clean room" procedures as set forth below.\nC. Any term defined in the Agreement and used in this Amendment shall have the meaning ascribed to it in the Agreement.\nNOW, THEREFORE, in respect of the foregoing premises and the covenants set forth herein, the parties hereto agree as follows:\n1. Clean Room Procedures. The parties hereby amend the Agreement to add the following procedures and protocols with respect to the\nreview and analysis by the representatives of Counterparty listed on Exhibit A (the "Clean Room Team") of certain redacted contracts containing\nconfidential Evaluation Material (as determined by the following procedures and protocols, "Clean Room Information"). The parties agree to\nadhere to the following procedures and protocols in connection with the Clean Room Information:\n(a) A separate electronic, password-protected virtual clean room database on the diligence datasite (the "Clean Room") will be\nadministered and made available by Anadigics or its designated representatives solely to the Clean Room Team. Any and all and only\nsuch Evaluation Material as is made available in or through the Clean Room and not otherwise made available by Anadigics to\nCounterparty or any of its representatives outside of the Clean Room shall be deemed to be Clean Room Information.\n(b)\nAnadigics or its designated representatives will determine, in their sole discretion, which Evaluation Material will be made\navailable for review and analysis by the Clean Room Team in the Clean Room.\n(c) Each member of the Clean Room Team will use Clean Room Information only to prepare written analyses or summaries to\nevaluate a Transaction, subject to the restrictions described herein.\n(d) The members of the Clean Room Team will be the only persons (i) permitted access to the Clean Room and (ii) subject to the\nterms of this Amendment, authorized to review Clean Room Information.\n(e)\nNo disclosure, exchange or other communication, direct or indirect, of Clean Room Information, or any analyses, summaries,\nnotes, memos or other\ndocuments or information created from or with respect thereto, are permitted between the Clean Room Team, on one hand, and\nCounterparty or any of Counterparty's other representatives, on the other hand, other than:\n(i) Written, videotaped, digitized or otherwise recorded analyses or summaries prepared by the Clean Room Team with respect to\nClean Room Information that (A) is general and summary in nature and (B) does not contain or disclose Restricted Information (as\ndefined in Exhibit B). Such written analyses and summaries shall be prepared in accordance with the guidelines set forth on Exhibit\nB.\n(ii) Oral communications between members of the Clean Room Team, on the one hand, and Counterparty and Counterparty's\nRepresentatives that are not members of the Clean Room Team, on the other hand, of Clean Room Information (or any written,\nvideotaped, digitized or otherwise recorded analyses or summaries thereof prepared by members of the Clean Room Team) (A) shall\nbe general and summary in nature and (B) shall not contain or disclose Restricted Information. Such oral communications shall be\nsubject to the same guidelines set forth on Exhibit B applicable to the preparation of analyses or summaries as provided above.\nAny such analyses or summaries or any oral communications of Clean Room Information shall be deemed to be Evaluation Material\nunder the Agreement and Counterparty shall keep such information confidential in accordance with the terms of the Agreement.\n3. Full Force and Effect. The Agreement, as amended by this Amendment, remains in full force and effect.\n4.\nCounterparts. This Amendment may be executed in counterparts, all of which together shall constitute one and the same agreement.\nIN\nWITNESS WHEREOF, the parties hereto have executed and delivered this Amendment as of the Amendment Date.\nAnadigics, Inc.\nBy: /s/ Terry Gallagher\nIts: Executive Vice President and CFO\nII-VI Incorporated\nBy: /s/ Walter R. Bashaw\nIts: General Counsel and Secretary\nEXHIBIT A\nClean Team Members\nII-VI Incorporated:\nGiovanni Barbarossa, Chief Technology Officer\nWalter R. Bashaw II, Esquire, General Counsel\nMichelle R. McCreery Repp, Corporate Counsel and Director of Legal Affairs\nSusan J. Messer, Esquire - Sherrard, German & Kelly, P.C.\nD. Mark McMillan, Esquire - K&L Gates:\nSuch other as approved by email upon request by Kristina Brown, General Counsel\nEXHIBIT B\nNo Clean Team Member shall include any of the following information orally or in any written analysis or summary:\nTechnical or other specification information related to products and services supplied by Anadigics (excluding, for the avoidance of doubt, the\nterms of any exclusivity provisions);\nPrices charged for any products or services; or\nQuantities sold or planned to be sold.\nIn addition, no Clean Team Member shall include any information that Anadigics specifically requests in writing not to be included in any oral\ndisclosure, written analysis or summary (any such Evaluation Material, collectively known as "Restricted Information"). EX-99.(D)(4) 9 d110802dex99d4.htm EX-99.(D)(4)\nExhibit (d)(4)\nCONFIDENTIAL\nAMENDMENT NO. 1 TO\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Amendment No. 1 to Mutual Non-Disclosure Agreement (this “Amendment”), dated as of December 11, 2015 (the “Amendment\nDate”), is made between Anadigics, Inc. (“Anadigics”) and II-VI Incorporated (“Counterparty”) with reference to the following facts:\nA. Anadigics and Counterparty entered into a Mutual Non-Disclosure Agreement dated as of November 11, 2015 (the “Agreement”).\nB. The parties desire to provide for certain “clean room” procedures as set forth below.\nC. Any term defined in the Agreement and used in this Amendment shall have the meaning ascribed to it in the Agreement.\nNOW, THEREFORE, in respect of the foregoing premises and the covenants set forth herein, the parties hereto agree as follows:\n1. Clean Room Procedures. The parties hereby amend the Agreement to add the following procedures and protocols with respect to the\nreview and analysis by the representatives of Counterparty listed on Exhibit A (the “Clean Room Team”) of certain redacted contracts containing\nconfidential Evaluation Material (as determined by the following procedures and protocols, “Clean Room Information”). The parties agree to\nadhere to the following procedures and protocols in connection with the Clean Room Information:\n(a) A separate electronic, password-protected virtual clean room database on the diligence datasite (the “Clean Room”) will be\nadministered and made available by Anadigics or its designated representatives solely to the Clean Room Team. Any and all and only\nsuch Evaluation Material as is made available in or through the Clean Room and not otherwise made available by Anadigics to\nCounterparty or any of its representatives outside of the Clean Room shall be deemed to be Clean Room Information.\n(b) Anadigics or its designated representatives will determine, in their sole discretion, which Evaluation Material will be made\navailable for review and analysis by the Clean Room Team in the Clean Room.\n(c) Each member of the Clean Room Team will use Clean Room Information only to prepare written analyses or summaries to\nevaluate a Transaction, subject to the restrictions described herein.\n(d) The members of the Clean Room Team will be the only persons (i) permitted access to the Clean Room and (ii) subject to the\nterms of this Amendment, authorized to review Clean Room Information.\n(e) No disclosure, exchange or other communication, direct or indirect, of Clean Room Information, or any analyses, summaries,\nnotes, memos or other\ndocuments or information created from or with respect thereto, are permitted between the Clean Room Team, on one hand, and\nCounterparty or any of Counterparty’s other representatives, on the other hand, other than:\n(i) Written, videotaped, digitized or otherwise recorded analyses or summaries prepared by the Clean Room Team with respect to\nClean Room Information that (A) is general and summary in nature and (B) does not contain or disclose Restricted Information (as\ndefined in Exhibit B). Such written analyses and summaries shall be prepared in accordance with the guidelines set forth on Exhibit\nB.\n(ii) Oral communications between members of the Clean Room Team, on the one hand, and Counterparty and Counterparty’s\nRepresentatives that are not members of the Clean Room Team, on the other hand, of Clean Room Information (or any written,\nvideotaped, digitized or otherwise recorded analyses or summaries thereof prepared by members of the Clean Room Team) (A) shall\nbe general and summary in nature and (B) shall not contain or disclose Restricted Information. Such oral communications shall be\nsubject to the same guidelines set forth on Exhibit B applicable to the preparation of analyses or summaries as provided above.\nAny such analyses or summaries or any oral communications of Clean Room Information shall be deemed to be Evaluation Material\nunder the Agreement and Counterparty shall keep such information confidential in accordance with the terms of the Agreement.\n3. Full Force and Effect. The Agreement, as amended by this Amendment, remains in full force and effect.\n4. Counterparts. This Amendment may be executed in counterparts, all of which together shall constitute one and the same agreement.\nIN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment as of the Amendment Date.\nAnadigics, Inc.\nBy: /s/ Terry Gallagher\nIts: Executive Vice President and CFO\nII-VI Incorporated\nBy: /s/ Walter R. Bashaw\nIts: General Counsel and Secretary\nEXHIBIT A\nClean Team Members\nII-VI Incorporated:\nGiovanni Barbarossa, Chief Technology Officer\nWalter R. Bashaw II, Esquire, General Counsel\nMichelle R. McCreery Repp, Corporate Counsel and Director of Legal Affairs\nSusan J. Messer, Esquire – Sherrard, German & Kelly, P.C .\nD. Mark McMillan, Esquire – K&L Gates:\nSuch other as approved by email upon request by Kristina Brown, General Counsel\nEXHIBIT B\nNo Clean Team Member shall include any of the following information orally or in any written analysis or summary:\n• Technical or other specification information related to products and services supplied by Anadigics (excluding, for the avoidance of doubt, the\nterms of any exclusivity provisions);\n• Prices charged for any products or services; or\n• Quantities sold or planned to be sold.\nIn addition, no Clean Team Member shall include any information that Anadigics specifically requests in writing not to be included in any oral\ndisclosure, written analysis or summary (any such Evaluation Material, collectively known as “Restricted Information”). 2580d4ca2d7ae09df407f96f04551eb1.pdf effective_date jurisdiction party term PJM Interconnection, L.L.C.\nSubstitute First Revised Sheet No. 197\nThird Revised Rate Schedule FERC No. 24\nSuperseding First Revised Sheet No. 197\nSCHEDULE 10 -\nFORM OF NON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (the “Agreement”) is made this\nday of\n, 2004, by and between\n,an\nAuthorized Person, as defined below, of\n(the “State Commission”) having jurisdiction within the State of\n, with offices at\nand PJM Interconnection, L.L .C., a Delaware limited liability company, with offices at 955 Jefferson Avenue, Valley Forge Corporate\nCenter, Norristown, PA 10403 (“PJM”). The State Commission and PJM shall be referred to herein individually as a “Party,” or collectively as the\n“Parties.”\nRECITALS\nWhereas , PJM serves as the Regional Transmission Organization with reliability and/or functional control responsibilities over transmission\nsystems involving fourteen states including the District of Columbia, and operates and oversees wholesale markets for electricity pursuant to the\nrequirements of the PJM Tariff and the Operating Agreement, as defined below; and\nWhereas, the PJM Market Monitor serves as the monitor for PJM’s wholesale markets for electricity, and\nWhereas , the Operating Agreement requires that PJM and the PJM Market Monitor maintain the confidentiality of Confidential Information;\nand\nWhereas , the Operating Agreement requires PJM and the PJM Market Monitor to disclose Confidential Information to Authorized Persons\nupon satisfaction of conditions stated in the Operating Agreement, including, but not limited to, the execution of this Agreement by the Authorized\nPerson and the maintenance of the confidentiality of such information pursuant to the terms of this Agreement; and\nWhereas , PJM desires to provide Authorized Persons with the broadest possible access to Confidential Information, consistent with PJM’s\nand the PJM Market Monitor’s obligations and duties under the PJM Operating Agreement, the PJM Tariff and other applicable FERC directives;\nand\nWhereas , this Agreement is a statement of the conditions and requirements, consistent with the requirements of the Operating Agreement,\nwhereby PJM or the PJM Market Monitor may provide Confidential Information to the Authorized Person.\nPJM Interconnection, L.L.C.\nOriginal Sheet No. 197A\nThird Revised Rate Schedule FERC No. 24\nNOW, THERFORE, intending to be legally bound, the Parties hereby agree as follows:\n1. DEFINITIONS.\n1.1 Affected Member. A Member of PJM which as a result of its participation in PJM’s markets or its membership in PJM provided\nConfidential Information to PJM, which Confidential Information is requested by, or is disclosed to an Authorized Person under this\nAgreement.\n1.2 Authorized Commission. (i) A State (which shall include the District of Columbia) public utility commission within the geographic\nlimits of the PJM Region (as that term in defined in the Operating Agreement) that regulates the distribution or supply of electricity to\nretail customers and is legally charged with monitoring the operation of wholesale or retail markets serving retail suppliers or customers\nwithin its State or (ii) an association or organization comprised exclusively of State public utility commissions described in the\nimmediately preceding clause (i).\n1.3 Authorized Person. A person, including the undersigned, which has executed this Agreement and is authorized in writing by an\nAuthorized Commission to receive and discuss Confidential Information. Authorized Persons may include attorneys representing an\nAuthorized Commission, consultants and/or contractors directly employed or retained by an Authorized Commission, provided however\nthat consultants or contractors may not initiate requests for Confidential Information from PJM or the PJM Market Monitor\n1.4 Confidential Information. Any information that would be considered non-public or confidential under the Operating Agreement.\n1.5 FERC. The Federal Energy Regulatory Commission.\n1.6 Information Request. A written request, in accordance with the terms of this Agreement for disclosure of Confidential Information\npursuant to Section 18.17 .4 of the Operating Agreement.\n1.7 Operating Agreement. The Amended and Restated Operating Agreement of PJM Interconnection, L.L .C., as it may be further amended\nor restated from time to time.\n1.8 PJM Market Monitor. The Market Monitoring Unit established under Attachment M to the PJM Tariff.\n1.9 PJM Tariff. The PJM Open Access Transmission Tariff, as it may be amended from time to time.\n1.10 Third Party Request. Any request or demand by any entity upon an Authorized Person or an Authorized Commission for release or\ndisclosure of Confidential Information. A Third Party Request shall include, but shall not be limited to, any subpoena, discovery request,\nor other request for Confidential Information made by any: (i) federal, state, or local governmental subdivision, department, official,\nagency or court, or (ii) arbitration panel, business, company, entity or individual.\nPJM Interconnection, L.L.C.\nOriginal Sheet No. 197B\nThird Revised Rate Schedule FERC No. 24\n2. Protection of Confidentiality.\n2.1 Duty to Not Disclose. The Authorized Person represents and warrants that he or she: (i) is presently an Authorized Person as defined\nherein; (ii) is duly authorized to enter into and perform this Agreement; (iii) has adequate procedures to protect against the release of\nConfidential Information, and (iv) is familiar with, and will comply with, all such applicable State Commission procedures. The\nAuthorized Person hereby covenants and agrees on behalf of himself or herself to deny any Third Party Request and defend against any\nlegal process which seeks the release of Confidential Information in contravention of the terms of this Agreement.\n2.2 Conditions Precedent. As a condition of the execution, delivery and effectiveness of this Agreement by PJM and the continued\nprovision of Confidential Information pursuant to the terms of this Agreement, the Authorized Commission shall, prior to the initial oral\nor written request for Confidential Information by an Authorized Person on its behalf, provide PJM with: (a) a final order of FERC\nprohibiting the release by the Authorized Person or the State Commission of Confidential Information in accordance with the terms of\nthe Operating Agreement and this Agreement; and (b) either an order of the State Commission or a certification from counsel to the State\nCommission, confirming that the State Commission has statutory authority to protect the confidentiality of the Confidential Information\nfrom public release or disclosure and from release or disclosure to any other entity, and that it has adequate procedures to protect against\nthe release of Confidential Information; and (c) confirmation in writing that the Authorized Person is authorized by the State\nCommission to enter into this Agreement and to receive Confidential Information under the Operating Agreement. PJM and the PJM\nMarket Monitor shall be expressly entitled to rely upon such FERC and State Commission orders and/or certifications of counsel in\nproviding Confidential Information to the Authorized Person, and shall in no event be liable, or subject to damages or claims of any kind\nor nature hereunder or pursuant to the Operating Agreement, due to the ineffectiveness of the FERC and/or State Commission orders, or\nthe inaccuracy of such certification of counsel.\n2.3 Discussion of Confidential Information with other Authorized Persons . The Authorized Person may discuss Confidential\nInformation with other Authorized Persons who have executed non-disclosure agreements with PJM containing the same terms and\nconditions as this Agreement; provided, however, that PJM shall have confirmed in advance and in writing that PJM has previously\nreleased the Confidential Information in question to such Authorized Persons. PJM shall respond to any written request for confirmation\nwithin two (2) business days of its receipt.\nPJM Interconnection, L.L.C.\nSubstitute Original Sheet No. 197C\nThird Revised Rate Schedule FERC No. 24\nSuperseding Original Sheet No. 197C\n2.4 Defense Against Third Party Requests. The Authorized Person shall defend against any disclosure of Confidential Information\npursuant to any Third Party Request through all available legal process, including, but not limited to, obtaining any necessary protective\norders. The Authorized Person shall provide PJM, and PJM shall provide each Affected Member, with prompt notice of any such Third\nParty Request or legal proceedings, and shall consult with PJM and/or any Affected Member in its efforts to deny the request or defend\nagainst such legal process. In the event a protective order or other remedy is denied, the Authorized Person agrees to furnish only that\nportion of the Confidential Information which their legal counsel advises PJM (and of which PJM shall, in turn, advise any Affected\nMembers) in writing is legally required to be furnished, and to exercise their best efforts to obtain assurance that confidential treatment\nwill be accorded to such Confidential Information.\n2.5 Care and Use of Confidential Information.\n2.5.1 Control of Confidential Information. The Authorized Person(s) shall be the custodian(s) of any and all Confidential\nInformation received pursuant to the terms of this Agreement from PJM or the PJM Market Monitor.\n2.5.2 Access to Confidential Information. The Authorized Person shall ensure that Confidential Information received by that\nAuthorized Person is disseminated only to those persons publicly identified as Authorized Persons on Exhibit “A” to the\ncertification provided by the State Commission to PJM pursuant to the procedures contained in section 2.3 of this Agreement.\n2.5.3 Schedule of Authorized Persons.\n(i) The Authorized Person shall promptly notify PJM of any change that would affect the Authorized Person’s status as an\nAuthorized Person, and in such event shall request, in writing, deletion from the schedule referred to in section (ii), below.\n(ii) PJM shall maintain a schedule of all Authorized Persons and the Authorized Commissions they represent, which shall be\nmade publicly available on the PJM website and/or by written request. Such schedule shall be compiled by PJM, based on\ninformation provided by any Authorized Person and/or Authorized Commission. PJM shall update the schedule promptly\nupon receipt of information from an Authorized Person or Authorized Commission, but shall have no obligation to verify\nor corroborate any such information, and shall not be liable or otherwise responsible for any inaccuracies in the schedule\ndue to incomplete or erroneous information conveyed to and relied upon by PJM in the compilation and/or maintenance of\nthe schedule.\nPJM Interconnection, L.L.C.\nOriginal Sheet No. 197D\nThird Revised Rate Schedule FERC No. 24\n2.5.4 Use of Confidential Information. The Authorized Person shall use the Confidential Information solely for the purpose of\nassisting the State Commission in discharging its legal responsibility to monitor the wholesale and retail electricity markets,\noperations, transmission planning and siting and generation planning and siting materially affecting retail customers within the\nState, and for no other purpose.\n2.5.5 Return of Confidential Information. Upon completion of the inquiry or investigation referred to in the Information Request, or\nfor any reason the Authorized Person is, or will no longer be an Authorized Person, the Authorized Person shall (a) return the\nConfidential Information and all copies thereof to PJM, or (b) provide a certification that the Authorized Person has destroyed all\npaper copies and deleted all electronic copies of the Confidential Information. PJM may waive this condition in writing if such\nConfidential Information has become publicly available or non-confidential in the course of business or pursuant to the PJM\nTariff, PJM rule or order of the FERC.\n2.5.6 Notice of Disclosures. The Authorized Person, directly or through the Authorized Commission, shall promptly notify PJM, and\nPJM shall promptly notify any Affected Member, of any inadvertent or intentional release or possible release of the Confidential\nInformation provided pursuant to this Agreement. The Authorized Person shall take all steps to minimize any further release of\nConfidential Information, and shall take reasonable steps to attempt to retrieve any Confidential Information that may have been\nreleased.\n2.6 Ownership and Privilege. Nothing in this Agreement, or incident to the provision of Confidential Information to the Authorized Person\npursuant to any Information Request, is intended, nor shall it be deemed, to be a waiver or abandonment of any legal privilege that may\nbe asserted against subsequent disclosure or discovery in any formal proceeding or investigation. Moreover, no transfer or creation of\nownership rights in any intellectual property comprising Confidential Information is intended or shall be inferred by the disclosure of\nConfidential Information by PJM, and any and all intellectual property comprising Confidential Information disclosed and any\nderivations thereof shall continue to be the exclusive intellectual property of PJM and/or the Affected Member.\nPJM Interconnection, L.L.C.\nSubstitute Original Sheet No. 197E\nThird Revised Rate Schedule FERC No. 24\nSuperseding Original Sheet No. 197E\n3. Procedure for Information Requests\n3.1 Written Requests. Information Requests to PJM shall be in writing, which shall include electronic communications, addressed to the\nPJM Market Monitor or other PJM representatives as specified by PJM, with a concurrent copy to PJM’s General Counsel, and shall: (a)\ndescribe with particularity the information sought; (b) provide a description of the purpose of the Information Request; (c) state the time\nperiod for which information is requested; and (d) re-affirm that only the Authorized Person shall have access to the Confidential\nInformation requested. PJM shall provide an Affected Member with written notice, which shall include electronic communication, of an\nInformation Request of the Authorized Person as soon as possible, but not later than two (2) business days after the receipt of the\nInformation Request.\n3.2 Oral Disclosures by the PJM Market Monitor. The PJM Market Monitor or other PJM representatives as specified by PJM may, in the\ncourse of discussions with an Authorized Person, orally disclose information otherwise required to be maintained in confidence, without\nthe need for a prior Information Request. Such oral disclosures shall provide enough information to enable the Authorized Person or the\nState Commission to determine whether additional Information Requests for information are appropriate. The PJM Market Monitor or\nother PJM representative will not make any written or electronic disclosures of Confidential Information to the Authorized Person\npursuant to this section. In any such discussions, the PJM Market Monitor or other PJM representative shall ensure that the individual or\nindividuals receiving such Confidential Information are Authorized Persons under this Agreement, orally designate Confidential\nInformation that is disclosed, and refrain from identifying any specific Affected Member whose information is disclosed. The PJM\nMarket Monitor or other PJM representative shall also be authorized to assist Authorized Persons in interpreting Confidential\nInformation that is disclosed. PJM or the PJM Market Monitor shall (i) maintain a written record of oral disclosures pursuant to this\nsection, which shall include the date of each oral disclosure and the Confidential. Information disclosed in each such oral disclosure, and\n(ii) provide any Affected Member with oral notice of any oral disclosure immediately, but not later than one (1) business day after the\noral disclosure. Such oral notice to the Affected Member shall include the substance of the oral disclosure, but shall not reveal any\nConfidential Information of any other Member and must be received by the Affected Member before the name of the Affected Member\nis released to the Authorized Person; provided however, the identity of the Affected Party must be made available to the Authorized\nPerson within two (2) business days of the initial oral disclosure.\nPJM Interconnection, L.L.C.\nOriginal Sheet No. 197F\nThird Revised Rate Schedule FERC No. 24\n3.3 Response to Information Requests.\n3.3.1 Subject to the provisions of Section 3.3.2 below, PJM shall supply Confidential Information to the Authorized Person in response\nto any Information Request within five (5) business days of the receipt of the Information Request, to the extent that the requested\nConfidential Information can be made available within such period; provided however, that in no event shall Confidential\nInformation be released prior to the end of the fourth (4th) business day without the express consent of the Affected Member. To\nthe extent that PJM can not reasonably prepare and deliver the requested Confidential Information within such five (5) day\nperiod, PJM shall, within such period, provide the Authorized Person with a written schedule for the provision of such remaining\nConfidential Information. Upon providing Confidential Information to the Authorized Person, PJM shall either provide a copy of\nthe Confidential Information to the Affected Member(s), or provide a listing of the Confidential Information disclosed; provided,\nhowever, that PJM shall not reveal any Member’s Confidential Information to any other Member.\n3.3.2 Notwithstanding section 3.3.1, above, should PJM or an Affected Member object to an Information Request or any portion\nthereof, PJM or the Affected Member may, within four (4) business days following PJM’s receipt of the Information Request,\nrequest, in writing (which shall include electronic communication) addressed to the State Commission with a copy to either the\nAffected Party or PJM, as the case may be, a conference with the State Commission or the State Commission’s authorized\ndesignee to resolve differences concerning the scope or timing of the Information Request; provided, however, nothing herein\nshall require the State Commission to participate in any conference. Any party to the conference may seek assistance from FERC\nstaff in resolution of the dispute. Should such conference be refused by any participant, or not resolve the dispute, then PJM, the\nAffected Member or the State Commission may initiate appropriate legal action at FERC within three (3) business days following\nreceipt of written notice from any conference participant terminating such conference. Any complaints filed at FERC objecting to\na particular Information Request shall be designated by the party as a “fast track” complaint and each party shall bear its own\ncosts in connection with such FERC proceeding. If no FERC proceeding regarding the Information Request is commenced by\nPJM, the Affected Member or the State Commission within such three day period, PJM shall utilize its best efforts to respond to\nthe Information Request promptly.\n3.3.3 To the extent that a response to any Information Request requires disclosure of Confidential Information of two or more Affected\nParties, PJM shall, to the extent possible, segregate such information and respond to the Information Request separately for each\nAffected Member.\nPJM Interconnection, L.L.C.\nOriginal Sheet No. 197G\nThird Revised Rate Schedule FERC No. 24\n4. Remedies.\n4.1 Material Breach. The Authorized Person agrees that release of Confidential Information to persons not authorized to receive it\nconstitutes a breach of this Agreement and may cause irreparable harm to PJM and/or the Affected Member. In the event of a breach of\nthis Agreement by the Authorized Person, PJM shall terminate this Agreement upon written notice to the Authorized Person and his or\nher Authorized Commission, and all rights of the Authorized Person hereunder shall thereupon terminate; provided, however, that PJM\nmay restore an individual’s status as an Authorized Person after consulting with the Affected Member and to the extent that: (i) PJM\ndetermines that the disclosure was not due to the intentional, reckless or negligent action or omission of the Authorized Person; (ii) there\nwere no harm or damages suffered by the Affected Member; or (iii) similar good cause shown. Any appeal of PJM’s actions under this\nsection shall be to FERC.\n4.2 Judicial Recourse. In the event of any breach of this Agreement, PJM and/or the Affected Member shall have the right to seek and\nobtain at least the following types of relief: (a) an order from FERC requiring any breach to cease and preventing any future breaches;\n(b) temporary, preliminary, and/or permanent injunctive relief with respect to any breach; and (c) the immediate return of all Confidential\nInformation to PJM. The Authorized Person expressly agrees that in the event of a breach of this Agreement, any relief sought properly\nincludes, but shall not be limited to, the immediate return of all Confidential Information to PJM.\n4.3 Waiver of Monetary Damages. No Authorized Person shall have responsibility or liability whatsoever under this Agreement for any\nand all liabilities, losses, damages, demands, fines, monetary judgments, penalties, costs and expenses caused by, resulting from, or\narising out of, or in connection with, the release of Confidential Information to persons not authorized to receive it, provided that such\nAuthorized Person is an employee or member of an Authorized Commission at the time of such unauthorized release. Nothing in this\nSection 4.3 is intended to limit the liability of any person who is not an employee of or a member of an Authorized Commission at the\ntime of such unauthorized release for any and all economic losses, damages, demands, fines, monetary judgments, penalties, costs and\nexpenses caused by, resulting from, or arising out of or in connection with such unauthorized release.\n5. Jurisdiction. The Parties agree that (i) any dispute or conflict requesting the relief in sections 4.1, and 4.2(a) above shall be submitted to\nFERC for hearing and resolution; (ii) any dispute or conflict requesting the relief in section 4.2(c) above may be submitted to FERC or any\ncourt of competent jurisdiction for hearing and resolution; and (iii) jurisdiction over all other actions and requested relief shall lie in any court\nof competent jurisdiction.\nPJM Interconnection, L.L.C.\nSubstitute Original Sheet No. 197H\nThird Revised Rate Schedule FERC No. 24\nSuperseding Original Sheet No. 197H\n6. Notices. All notices required pursuant to the terms of this Agreement shall be in writing, and served upon the following individuals in person,\nor at the following addresses or email addresses:\nIf to the Authorized Person:\n_ ___ ___ ___ ___ ___ ____ ___\n_ ___ ___ ___ ___ ___ ____ ___\n_ ___ ___ ___ ___ ___ ____ ___\n_ ___ ___ ___ ___ ___ ____ ___\n(email address)\nwith a copy to\n_ ___ ___ ___ ___ ___ ____ ___\n_ ___ ___ ___ ___ ___ ____ ___\n_ ___ ___ ___ ___ ___ ____ ___\n_ ___ ___ ___ ___ ___ ____ ___\n(email address)\nIf to PJM:\nMarket Monitor\nPJM Interconnection, LLC\n955 Jefferson Avenue\nValley Forge Corporate Center\nNorristown, PA 19403\nbowrij@pjm.com\nwith a copy to\nGeneral Counsel\n955 Jefferson Avenue\nValley Forge Corporate Center\nNorristown, PA 19403\nhagelj@pjm.com\nPJM Interconnection, L.L.C.\nSubstitute Original Sheet No. 197I\nThird Revised Rate Schedule FERC No. 24\nSuperseding Original Sheet No. 197I\n7. Severability and Survival. In the event any provision of this Agreement is determined to be unenforceable as a matter of law, the Parties\nintend that all other provisions of this Agreement remain in full force and effect in accordance with their terms. In the event of conflicts\nbetween the terms of this Agreement and the Operating Agreement, the terms of the Operating Agreement shall in all events be controlling.\nThe Authorized Person acknowledges that any and all obligations of the Authorized Person hereunder shall survive the severance or\ntermination of any employment or retention relationship between the Authorized Person and their respective Authorized Commission.\n8. Representations. The undersigned represent and warrant that they are vested with all necessary corporate, statutory and/or regulatory\nauthority to execute and deliver this Agreement, and to perform all of the obligations and duties contained herein.\n9. Third Party Beneficiaries. The Parties specifically agree and acknowledge that each Member as defined in the Operating Agreement is an\nintended third party beneficiary of this Agreement entitled to enforce its provisions.\n10. Counterparts. This Agreement may be executed in counterparts and all such counterparts together shall be deemed to constitute a single\nexecuted original.\n11. Amendment. This Agreement may not be amended except by written agreement executed by authorized representatives of the Parties.\nPJM INTERCONNECTION, L.L .C.\nAUTHORIZED PERSON\nBy:\nBy:\nName:\nName:\nTitle:\nTitle: PJM Interconnection, L.L.C. Substitute First Revised Sheet No. 197\nThird Revised Rate Schedule FERC No. 24 Superseding First Revised Sheet No. 197\nSCHEDULE 10 -\nFORM OF NON-DISCLOSURE AGREEMENT\n \n \nTHIS NON-DISCLOSURE AGREEMENT (the “Agreement”) is made this_____ day of 2004, by and between an\nAuthorized Person, as defined below, of (the “State Commission”) having jurisdiction within the State of with offices at\nand PJM Interconnection, L.L.C., a Delaware limited liability company, with offices at 955 Jefferson Avenue, Valley Forge Corporate\nCenter, Norristown, PA 10403 (“PJM”). The State Commission and PJM shall be referred to herein individually as a “Party,” or collectively as the\n“Parties.”\n \nRECITALS\nWhereas , PJM serves as the Regional Transmission Organization with reliability and/or functional control responsibilities over transmission\nsystems involving fourteen states including the District of Columbia, and operates and oversees wholesale markets for electricity pursuant to the\nrequirements of the PJM Tariff and the Operating Agreement, as defined below; and\nWhereas, the PJM Market Monitor serves as the monitor for PJM’s wholesale markets for electricity, and\nWhereas , the Operating Agreement requires that PJM and the PJM Market Monitor maintain the confidentiality of Confidential Information;\nand\nWhereas , the Operating Agreement requires PJM and the PJM Market Monitor to disclose Confidential Information to Authorized Persons\nupon satisfaction of conditions stated in the Operating A greement, including, but not limited to, the execution of this Agreement by the Authorized\nPerson and the maintenance of the confidentiality of such information pursuant to the terms of this Agreement; and\nWhereas , PJM desires to provide Authorized Persons with the broadest possible access to Confidential Information, consistent with PJM’s\nand the PJM Market Monitor’s obligations and duties under the PJM Operating Agreement, the PJM Tariff and other applicable FERC directives;\nand\nWhereas , this Agreement is a statement of the conditions and requirements, consistent with the requirements of the Operating Agreement,\nwhereby PJM or the PJM Market Monitor may provide Confidential Information to the Authorized Person.\nPJM Interconnection, L.L.C. Original Sheet No. 197A Third Revised Rate Schedule FERC No. 24 NOW, THERFORE, intending to be legally bound, the Parties hereby agree as follows: 1. DEFINITIONS. 1.1\n1.2\n1.3\n14\n1.5\n1.6\n1.7\n1.8\n1.9\n1.10\nAffected Member. A Member of PJM which as a result of its participation in PJM’s markets or its membership in PJM provided\nConfidential Information to PJM, which Confidential Information is requested by, or is disclosed to an Authorized Person under this\nAgreement.\nAuthorized Commission. (i) A State (which shall include the District of Columbia) public utility commission within the geographic\nlimits of the PJM Region (as that term in defined in the Operating Agreement) that regulates the distribution or supply of electricity to\nretail customers and is legally charged with monitoring the operation of wholesale or retail markets serving retail suppliers or customers\nwithin its State or (ii) an association or organization comprised exclusively of State public utility commissions described in the\nimmediately preceding clause (i).\nAuthorized Person. A person, including the undersigned, which has executed this Agreement and is authorized in writing by an\nAuthorized Commission to receive and discuss Confidential Information. Authorized Persons may include attorneys representing an\nAuthorized Commission, consultants and/or contractors directly employed or retained by an Authorized Commission, provided however\nthat consultants or contractors may not initiate requests for Confidential Information from PJM or the PJM Market Monitor\nConfidential Information. Any information that would be considered non-public or confidential under the Operating Agreement.\nFERC. The Federal Energy Regulatory Commission.\nInformation Request. A written request, in accordance with the terms of this Agreement for disclosure of Confidential Information\npursuant to Section 18.17.4 of the Operating Agreement.\nOperating Agreement. The Amended and Restated Operating Agreement of PJM Interconnection, L.L.C., as it may be further amended\nor restated from time to time.\nPJM Market Monitor. The Market Monitoring Unit established under Attachment M to the PJM Tariff.\nPJM Tariff. The PJM Open Access Transmission Tariff, as it may be amended from time to time.\nThird Party Request. Any request or demand by any entity upon an Authorized Person or an Authorized Commission for release or\ndisclosure of Confidential Information. A Third Party Request shall include, but shall not be limited to, any subpoena, discovery request,\nor other request for Confidential Information made by any: (i) federal, state, or local governmental subdivision, department, official,\nagency or court, or (ii) arbitration panel, business, company, entity or individual.\nPJM Interconnection, L.L.C. Original Sheet No. 197B Third Revised Rate Schedule FERC No. 24 2. Protection of Confidentiality. 2.1\n2.2\n2.3\nDuty to Not Disclose. The Authorized Person represents and warrants that he or she: (i) is presently an Authorized Person as defined\nherein; (ii) is duly authorized to enter into and perform this Agreement; (iii) has adequate procedures to protect against the release of\nConfidential Information, and (iv) is familiar with, and will comply with, all such applicable State Commission procedures. The\nAuthorized Person hereby covenants and agrees on behalf of himself or herself to deny any Third Party Request and defend against any\nlegal process which seeks the release of Confidential Information in contravention of the terms of this Agreement.\nConditions Precedent. As a condition of the execution, delivery and effectiveness of this Agreement by PJM and the continued\nprovision of Confidential Information pursuant to the terms of this Agreement, the Authorized Commission shall, prior to the initial oral\nor written request for Confidential Information by an Authorized Person on its behalf, provide PJM with: (a) a final order of FERC\nprohibiting the release by the Authorized Person or the State Commission of Confidential Information in accordance with the terms of\nthe Operating Agreement and this Agreement; and (b) either an order of the State Commission or a certification from counsel to the State\nCommission, confirming that the State Commission has statutory authority to protect the confidentiality of the Confidential Information\nfrom public release or disclosure and from release or disclosure to any other entity, and that it has adequate procedures to protect against\nthe release of Confidential Information; and (c) confirmation in writing that the Authorized Person is authorized by the State\nCommission to enter into this Agreement and to receive Confidential Information under the Operating Agreement. PJM and the PJM\nMarket Monitor shall be expressly entitled to rely upon such FERC and State Commission orders and/or certifications of counsel in\nproviding Confidential Information to the Authorized Person, and shall in no event be liable, or subject to damages or claims of any kind\nor nature hereunder or pursuant to the Operating Agreement, due to the ineffectiveness of the FERC and/or State Commission orders, or\nthe inaccuracy of such certification of counsel.\nDiscussion of Confidential Information with other Authorized Persons . The Authorized Person may discuss Confidential\nInformation with other Authorized Persons who have executed non-disclosure agreements with PJM containing the same terms and\nconditions as this Agreement; provided, however, that PJM shall have confirmed in advance and in writing that PJM has previously\nreleased the Confidential Information in question to such Authorized Persons. PJM shall respond to any written request for confirmation\nwithin two (2) business days of its receipt.\nPJM Interconnection, L.L.C. Substitute Original Sheet No. 197C Third Revised Rate Schedule FERC No. 24 Superseding Original Sheet No. 197C 2.4 Defense Against Third Party Requests. The Authorized Person shall defend against any disclosure of Confidential Information 2.5\npursuant to any Third Party Request through all available legal process, including, but not limited to, obtaining any necessary protective\norders. The Authorized Person shall provide PJM, and PJM shall provide each Affected Member, with prompt notice of any such Third\nParty Request or legal proceedings, and shall consult with PJM and/or any Affected Member in its efforts to deny the request or defend\nagainst such legal process. In the event a protective order or other remedy is denied, the Authorized Person agrees to furnish only that\nportion of the Confidential Information which their legal counsel advises PJM (and of which PJM shall, in turn, advise any Affected\nMembers) in writing is legally required to be furnished, and to exercise their best efforts to obtain assurance that confidential treatment\nwill be accorded to such Confidential Information.\nCare and Use of Confidential Information.\n2.5.1 Control of Confidential Information. The Authorized Person(s) shall be the custodian(s) of any and all Confidential\nInformation received pursuant to the terms of this Agreement from PJM or the PJM Market Monitor.\n2.5.2 Access to Confidential Information. The Authorized Person shall ensure that Confidential Information received by that\nAuthorized Person is disseminated only to those persons publicly identified as Authorized Persons on Exhibit “A” to the\ncertification provided by the State Commission to PJM pursuant to the procedures contained in section 2.3 of this Agreement.\n2.5.3 Schedule of Authorized Persons.\n(i) The Authorized Person shall promptly notify PJM of any change that would affect the Authorized Person’s status as an\nAuthorized Person, and in such event shall request, in writing, deletion from the schedule referred to in section (ii), below.\n(i) PJM shall maintain a schedule of all Authorized Persons and the Authorized Commissions they represent, which shall be\nmade publicly available on the PJM website and/or by written request. Such schedule shall be compiled by PJM, based on\ninformation provided by any Authorized Person and/or Authorized Commission. PJM shall update the schedule promptly\nupon receipt of information from an Authorized Person or Authorized Commission, but shall have no obligation to verify\nor corroborate any such information, and shall not be liable or otherwise responsible for any inaccuracies in the schedule\ndue to incomplete or erroneous information conveyed to and relied upon by PJM in the compilation and/or maintenance of\nthe schedule.\nPJM Interconnection, L.L.C. Original Sheet No. 197D Third Revised Rate Schedule FERC No. 24 2.6\n2.54\n2.5.5\n2.5.6\nUse of Confidential Information. The Authorized Person shall use the Confidential Information solely for the purpose of\nassisting the State Commission in discharging its legal responsibility to monitor the wholesale and retail electricity markets,\noperations, transmission planning and siting and generation planning and siting materially affecting retail customers within the\nState, and for no other purpose.\nReturn of Confidential Information. Upon completion of the inquiry or investigation referred to in the Information Request, or\nfor any reason the Authorized Person is, or will no longer be an Authorized Person, the Authorized Person shall (a) return the\nConfidential Information and all copies thereof to PJM, or (b) provide a certification that the Authorized Person has destroyed all\npaper copies and deleted all electronic copies of the Confidential Information. PJM may waive this condition in writing if such\nConfidential Information has become publicly available or non-confidential in the course of business or pursuant to the PJM\nTariff, PJM rule or order of the FERC.\nNotice of Disclosures. The Authorized Person, directly or through the Authorized Commission, shall promptly notify PJM, and\nPJM shall promptly notify any Affected Member, of any inadvertent or intentional release or possible release of the Confidential\nInformation provided pursuant to this Agreement. The Authorized Person shall take all steps to minimize any further release of\nConfidential Information, and shall take reasonable steps to attempt to retrieve any Confidential Information that may have been\nreleased.\nOwnership and Privilege. Nothing in this Agreement, or incident to the provision of Confidential Information to the Authorized Person pursuant to any Information Request, is intended, nor shall it be deemed, to be a waiver or abandonment of any legal privilege that may be asserted against subsequent disclosure or discovery in any formal proceeding or investigation. Moreover, no transfer or creation of ownership rights in any intellectual property comprising Confidential Information is intended or shall be inferred by the disclosure of Confidential Information by PJM, and any and all intellectual property comprising Confidential Information disclosed and any derivations thereof shall continue to be the exclusive intellectual property of PJM and/or the Affected Member.\fPJM Interconnection, L.L.C. Substitute Original Sheet No. 197E Third Revised Rate Schedule FERC No. 24 Superseding Original Sheet No. 197E 3. Procedure for Information Requests 3.1\n3.2\nWritten Requests. Information Requests to PJM shall be in writing, which shall include electronic communications, addressed to the\nPJM Market Monitor or other PJM representatives as specified by PJM, with a concurrent copy to PJM’s General Counsel, and shall: (a)\ndescribe with particularity the information sought; (b) provide a description of the purpose of the Information Request; (c) state the time\nperiod for which information is requested; and (d) re-affirm that only the Authorized Person shall have access to the Confidential\nInformation requested. PJM shall provide an Affected Member with written notice, which shall include electronic communication, of an\nInformation Request of the Authorized Person as soon as possible, but not later than two (2) business days after the receipt of the\nInformation Request.\nOral Disclosures by the PJM Market Monitor. The PJM Market Monitor or other PJM representatives as specified by PJM may, in the\ncourse of discussions with an Authorized Person, orally disclose information otherwise required to be maintained in confidence, without\nthe need for a prior Information Request. Such oral disclosures shall provide enough information to enable the Authorized Person or the\nState Commission to determine whether additional Information Requests for information are appropriate. The PJM Market Monitor or\nother PJM representative will not make any written or electronic disclosures of Confidential Information to the Authorized Person\npursuant to this section. In any such discussions, the PJM Market Monitor or other PJM representative shall ensure that the individual or\nindividuals receiving such Confidential Information are Authorized Persons under this Agreement, orally designate Confidential\nInformation that is disclosed, and refrain from identifying any specific Affected Member whose information is disclosed. The PJM\nMarket Monitor or other PJM representative shall also be authorized to assist Authorized Persons in interpreting Confidential\nInformation that is disclosed. PJM or the PJM Market Monitor shall (i) maintain a written record of oral disclosures pursuant to this\nsection, which shall include the date of each oral disclosure and the Confidential. Information disclosed in each such oral disclosure, and\n(ii) provide any Affected Member with oral notice of any oral disclosure immediately, but not later than one (1) business day after the\noral disclosure. Such oral notice to the Affected Member shall include the substance of the oral disclosure, but shall not reveal any\nConfidential Information of any other Member and must be received by the Affected Member before the name of the Affected Member\nis released to the Authorized Person; provided however, the identity of the Affected Party must be made available to the Authorized\nPerson within two (2) business days of the initial oral disclosure.\nPJM Interconnection, L.L.C. Original Sheet No. 197F Third Revised Rate Schedule FERC No. 24 3.3 Response to Information Requests. 3.3.1\n3.3.2\n3.3.3\nSubject to the provisions of Section 3.3.2 below, PJM shall supply Confidential Information to the Authorized Person in response\nto any Information Request within five (5) business days of the receipt of the Information Request, to the extent that the requested\nConfidential Information can be made available within such period; provided however, that in no event shall Confidential\nInformation be released prior to the end of the fourth (4%) business day without the express consent of the Affected Member. To\nthe extent that PJM can not reasonably prepare and deliver the requested Confidential Information within such five (5) day\nperiod, PJM shall, within such period, provide the Authorized Person with a written schedule for the provision of such remaining\nConfidential Information. Upon providing Confidential Information to the Authorized Person, PJM shall either provide a copy of\nthe Confidential Information to the Affected Member(s), or provide a listing of the Confidential Information disclosed; provided,\nhowever, that PJM shall not reveal any Member’s Confidential Information to any other Member.\nNotwithstanding section 3.3.1, above, should PJM or an Affected Member object to an Information Request or any portion\nthereof, PJM or the Affected Member may, within four (4) business days following PJM’s receipt of the Information Request,\nrequest, in writing (which shall include electronic communication) addressed to the State Commission with a copy to either the\nAffected Party or PJM, as the case may be, a conference with the State Commission or the State Commission’s authorized\ndesignee to resolve differences concerning the scope or timing of the Information Request; provided, however, nothing herein\nshall require the State Commission to participate in any conference. Any party to the conference may seek assistance from FERC\nstaff in resolution of the dispute. Should such conference be refused by any participant, or not resolve the dispute, then PJM, the\nAffected Member or the State Commission may initiate appropriate legal action at FERC within three (3) business days following\nreceipt of written notice from any conference participant terminating such conference. Any complaints filed at FERC objecting to\na particular Information Request shall be designated by the party as a “fast track” complaint and each party shall bear its own\ncosts in connection with such FERC proceeding. If no FERC proceeding regarding the Information Request is commenced by\nPJM, the Affected Member or the State Commission within such three day period, PJM shall utilize its best efforts to respond to\nthe Information Request promptly.\nTo the extent that a response to any Information Request requires disclosure of Confidential Information of two or more Affected\nParties, PJM shall, to the extent possible, segregate such information and respond to the Information Request separately for each\nAffected Member.\nPJM Interconnection, L.L.C. Original Sheet No. 197G Third Revised Rate Schedule FERC No. 24 4. Remedies. 4.1\n4.2\n4.3\nMaterial Breach. The Authorized Person agrees that release of Confidential Information to persons not authorized to receive it\nconstitutes a breach of this Agreement and may cause irreparable harm to PJM and/or the Affected Member. In the event of a breach of\nthis Agreement by the Authorized Person, PJM shall terminate this Agreement upon written notice to the Authorized Person and his or\nher Authorized Commission, and all rights of the Authorized Person hereunder shall thereupon terminate; provided, however, that PJM\nmay restore an individual’s status as an Authorized Person after consulting with the Affected Member and to the extent that: (i) PJM\ndetermines that the disclosure was not due to the intentional, reckless or negligent action or omission of the Authorized Person; (ii) there\nwere no harm or damages suffered by the Affected Member; or (iii) similar good cause shown. Any appeal of PJM’s actions under this\nsection shall be to FERC.\nJudicial Recourse. In the event of any breach of this Agreement, PJM and/or the Affected Member shall have the right to seek and\nobtain at least the following types of relief: (a) an order from FERC requiring any breach to cease and preventing any future breaches;\n(b) temporary, preliminary, and/or permanent injunctive relief with respect to any breach; and (c) the immediate return of all Confidential\nInformation to PJM. The Authorized Person expressly agrees that in the event of a breach of this Agreement, any relief sought properly\nincludes, but shall not be limited to, the immediate return of all Confidential Information to PJM.\nWaiver of Monetary Damages. No Authorized Person shall have responsibility or liability whatsoever under this Agreement for any\nand all liabilities, losses, damages, demands, fines, monetary judgments, penalties, costs and expenses caused by, resulting from, or\narising out of, or in connection with, the release of Confidential Information to persons not authorized to receive it, provided that such\nAuthorized Person is an employee or member of an Authorized Commission at the time of such unauthorized release. Nothing in this\nSection 4.3 is intended to limit the liability of any person who is not an employee of or a member of an Authorized Commission at the\ntime of such unauthorized release for any and all economic losses, damages, demands, fines, monetary judgments, penalties, costs and\nexpenses caused by, resulting from, or arising out of or in connection with such unauthorized release.\nJurisdiction. The Parties agree that (i) any dispute or conflict requesting the relief in sections 4.1, and 4.2(a) above shall be submitted to FERC for hearing and resolution; (ii) any dispute or conflict requesting the relief in section 4.2(c) above may be submitted to FERC or any court of competent jurisdiction for hearing and resolution; and (iii) jurisdiction over all other actions and requested relief shall lie in any court of competent jurisdiction.\fPJM Interconnection, L.L.C.\nThird Revised Rate Schedule FERC No. 24 Substitute Original Sheet No. 197H\nSuperseding Original Sheet No. 197H\n6. Notices. All notices required pursuant to the terms of this Agreement shall be in writing, and served upon the following individuals in person, or at the following addresses or email addresses: If to the Authorized Person: If to PIM:\n(email address)\nwith a copy to\n(email address)\nMarket Monitor\nPJM Interconnection, LL.C\n955 Jefferson Avenue\nValley Forge Corporate Center\nNorristown, PA 19403\nbowrij@pjm.com\nwith a copy to\nGeneral Counsel\n955 Jefferson Avenue\nValley Forge Corporate Center\nNorristown, PA 19403\nhagelj@pjm.com\nPJM Interconnection, L.L.C. Substitute Original Sheet No. 1971 Third Revised Rate Schedule FERC No. 24 Superseding Original Sheet No. 1971 Severability and Survival. In the event any provision of this Agreement is determined to be unenforceable as a matter of law, the Parties\nintend that all other provisions of this Agreement remain in full force and effect in accordance with their terms. In the event of conflicts\nbetween the terms of this Agreement and the Operating Agreement, the terms of the Operating Agreement shall in all events be controlling.\nThe Authorized Person acknowledges that any and all obligations of the Authorized Person hereunder shall survive the severance or\ntermination of any employment or retention relationship between the Authorized Person and their respective Authorized Commission.\n8. Representations. The undersigned represent and warrant that they are vested with all necessary corporate, statutory and/or regulatory\nauthority to execute and deliver this Agreement, and to perform all of the obligations and duties contained herein.\n9. Third Party Beneficiaries. The Parties specifically agree and acknowledge that each Member as defined in the Operating Agreement is an\nintended third party beneficiary of this Agreement entitled to enforce its provisions.\n10. Counterparts. This Agreement may be executed in counterparts and all such counterparts together shall be deemed to constitute a single\nexecuted original.\n11. Amendment. This Agreement may not be amended except by written agreement executed by authorized representatives of the Parties.\nPJM INTERCONNECTION, L.L.C. AUTHORIZED PERSON\nBy: By:\nName: Name:\nTitle: Title: PJM Interconnection, L.L.C.\nSubstitute First Revised Sheet No. 197\nThird Revised Rate Schedule FERC No. 24\nSuperseding First Revised Sheet No. 197\nSCHEDULE 10 -\nFORM OF NON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (the "Agreement") is made this day of 2004, by and between\nan\nAuthorized Person, as defined below, of (the "State Commission") having jurisdiction within the State of with offices at\nand PJM Interconnection, L.L.C., a Delaware limited liability company, with offices at 955 Jefferson Avenue, Valley Forge Corporate\nCenter, Norristown, PA 10403 ("PJM"). The State Commission and PJM shall be referred to herein individually as a "Party," or collectively as the\n"Parties."\nRECITALS\nWhereas PJM serves as the Regional Transmission Organization with reliability and/or functional control responsibilities over transmission\nsystems involving fourteen states including the District of Columbia, and operates and oversees wholesale markets for electricity pursuant to the\nrequirements of the PJM Tariff and the Operating Agreement, as defined below; and\nWhereas, the PJM Market Monitor serves as the monitor for PJM's wholesale markets for electricity, and\nWhereas the Operating Agreement requires that PJM and the PJM Market Monitor maintain the confidentiality of Confidential Information;\nand\nWhereas the Operating Agreement requires PJM and the PJM Market Monitor to disclose Confidential Information to Authorized Persons\nupon satisfaction of conditions stated in the Operating Agreement, including, but not limited to, the execution of this Agreement by the Authorized\nPerson and the maintenance of the confidentiality of such information pursuant to the terms of this Agreement; and\nWhereas PJM desires to provide Authorized Persons with the broadest possible access to Confidential Information, consistent with PJM's\nand the PJM Market Monitor's obligations and duties under the PJM Operating Agreement, the PJM Tariff and other applicable FERC directives;\nand\nWhereas, this Agreement is a statement of the conditions and requirements, consistent with the requirements of the Operating Agreement,\nwhereby PJM or the PJM Market Monitor may provide Confidential Information to the Authorized Person.\nPJM Interconnection, L.L.C.\nOriginal Sheet No. 197A\nThird Revised Rate Schedule FERC No. 24\nNOW, THERFORE, intending to be legally bound, the Parties hereby agree as follows:\n1. DEFINITIONS.\n1.1 Affected Member. A Member of PJM which as a result of its participation in PJM's markets or its membership in PJM provided\nConfidential Information to PJM, which Confidential Information is requested by, or is disclosed to an Authorized Person under this\nAgreement.\n1.2 Authorized Commission. (i) A State (which shall include the District of Columbia) public utility commission within the geographic\nlimits of the PJM Region (as that term in defined in the Operating Agreement) that regulates the distribution or supply of electricity\nto\nretail customers and is legally charged with monitoring the operation of wholesale or retail markets serving retail suppliers or customers\nwithin its State or (ii) an association or organization comprised exclusively of State public utility commissions described in the\nimmediately preceding clause (i).\n1.3 Authorized Person. A person, including the undersigned, which has executed this Agreement and is authorized in writing by an\nAuthorized Commission to receive and discuss Confidential Information. Authorized Persons may include attorneys representing an\nAuthorized Commission, consultants and/or contractors directly employed or retained by an Authorized Commission, provided however\nthat consultants or contractors may not initiate requests for Confidential Information from PJM or the PJM Market Monitor\n1.4 Confidential Information. Any information that would be considered non-public or confidential under the Operating Agreement.\n1.5 FERC. The Federal Energy Regulatory Commission.\n1.6 Information Request. A written request, in accordance with the terms of this Agreement for disclosure of Confidential Information\npursuant to Section 18.17.4 of the Operating Agreement.\n1.7 Operating Agreement. The Amended and Restated Operating Agreement of PJM Interconnection, L.L.C., as it may be further amended\nor restated from time to time.\n1.8 PJM Market Monitor. The Market Monitoring Unit established under Attachment M to the PJM Tariff.\n1.9 PJM Tariff. The PJM Open Access Transmission Tariff, as it may be amended from time to time.\n1.10 Third Party Request. Any request or demand by any entity upon an Authorized Person or an Authorized Commission for release or\ndisclosure of Confidential Information. A Third Party Request shall include, but shall not be limited to, any subpoena, discovery request,\nor other request for Confidential Information made by any: (i) federal, state, or local governmental subdivision, department, official,\nagency or court, or (ii) arbitration panel, business, company, entity or individual.\nPJM Interconnection, L.L.C.\nOriginal Sheet No. 197B\nThird Revised Rate Schedule FERC No. 24\n2.\nProtection of Confidentiality.\n2.1 Duty to Not Disclose. The Authorized Person represents and warrants that he or she: (i) is presently an Authorized Person as defined\nherein; (ii) is duly authorized to enter into and perform this Agreement; (iii) has adequate procedures to protect against the release of\nConfidential Information, and (iv) is familiar with, and will comply with, all such applicable State Commission procedures. The\nAuthorized Person hereby covenants and agrees on behalf of himself or herself to deny any Third Party Request and defend against\nany\nlegal process which seeks the release of Confidential Information in contravention of the terms of this Agreement.\n2.2 Conditions Precedent. As a condition of the execution, delivery and effectiveness of this Agreement by PJM and the continued\nprovision of Confidential Information pursuant to the terms of this Agreement, the Authorized Commission shall, prior to the initial oral\nor written request for Confidential Information by an Authorized Person on its behalf, provide PJM with: (a) a final order of FERC\nprohibiting the release by the Authorized Person or the State Commission of Confidentia Information in accordance with the terms of\nthe Operating Agreement and this Agreement; and (b) either an order of the State Commission or a certification from counsel to the State\nCommission, confirming that the State Commission has statutory authority to protect the confidentiality of the Confidential Information\nfrom public release or disclosure and from release or disclosure to any other entity, and that it has adequate procedures to protect against\nthe release of Confidential Information; and (c) confirmation in writing that the Authorized Person is authorized by the State\nCommission to enter into this Agreement and to receive Confidential Information under the Operating Agreement. PJM and the PJM\nMarket Monitor shall be expressly entitled to rely upon such FERC and State Commission orders and/or certifications of counsel in\nproviding Confidential Information to the Authorized Person, and shall in no event be liable, or subject to damages or claims of any kind\nor nature hereunder or pursuant to the Operating Agreement, due to the ineffectiveness of the FERC and/or State Commission orders, or\nthe inaccuracy of such certification of counsel.\n2.3 Discussion of Confidential Information with other Authorized Persons The Authorized Person may discuss Confidential\nInformation with other Authorized Persons who have executed non-disclosure agreements with PJM containing the same terms and\nconditions as this Agreement; provided, however, that PJM shall have confirmed in advance and in writing that PJM has previously\nreleased the Confidential Information in question to such Authorized Persons. PJM shall respond to any written request for confirmation\nwithin two (2) business days of its receipt.\nPJM Interconnection, L.L.C.\nSubstitute Original Sheet No. 197C\nThird Revised Rate Schedule FERC No. 24\nSuperseding Original Sheet No. 197C\n2.4 Defense Against Third Party Requests. The Authorized Person shall defend against any disclosure of Confidential Information\npursuant to any Third Party Request through all available legal process, including, but not limited to, obtaining any necessary protective\norders. The Authorized Person shall provide PJM, and PJM shall provide each Affected Member, with prompt notice of any such Third\nParty Request or legal proceedings, and shall consult with PJM and/or any Affected Member in its efforts to deny the request or defend\nagainst such legal process. In the event a protective order or other remedy is denied, the Authorized Person agrees to furnish only that\nportion of the Confidential Information which their legal counsel advises PJM (and of which PJM shall, in turn, advise any Affected\nMembers) in writing is legally required to be furnished, and to exercise their best efforts to obtain assurance that confidential treatment\nwill be accorded to such Confidentia Information.\n2.5 Care and Use of Confidential Information.\n2.5.1 Control of Confidential Information. The Authorized Person(s) shall be the custodian(s) of any and all Confidential\nInformation received pursuant to the terms of this Agreement from PJM or the PJM Market Monitor.\n2.5.2 Access to Confidential Information. The Authorized Person shall ensure that Confidential Information received by that\nAuthorized Person is disseminated only to those persons publicly identified as Authorized Persons on Exhibit "A" to the\ncertification provided by the State Commission to PJM pursuant to the procedures contained in section 2.3 of this Agreement.\n2.5.3 Schedule of Authorized Persons.\n(i)\nThe Authorized Person shall promptly notify PJM of any change that would affect the Authorized Person's status as an\nAuthorized Person and in such event shall request, in writing, deletion from the schedule referred to in section (ii), below.\n(ii)\nPJM shall maintain a schedule of all Authorized Persons and the Authorized Commissions they represent, which shall be\nmade publicly available on the PJM website and/or by written request. Such schedule shall be compiled by PJM, based on\ninformation provided by any Authorized Person and/or Authorized Commission. PJM shall update the schedule promptly\nupon receipt of information from an Authorized Person or Authorized Commission, but shall have no obligation to verify\nor corroborate any such information, and shall not be liable or otherwise responsible for any inaccuracies in the schedule\ndue to incomplete or erroneous information conveyed to and relied upon by PJM in the compilation and/or maintenance of\nthe schedule.\nPJM Interconnection, L.L.C.\nOriginal Sheet No. 197D\nThird Revised Rate Schedule FERC No. 24\n2.5.4 Use of Confidential Information. The Authorized Person shall use the Confidential Information solely for the purpose of\nassisting the State Commission in discharging its legal responsibility to monitor the wholesale and retail electricity markets,\noperations, transmission planning and siting and generation planning and siting materially affecting retail customers within the\nState, and for no other purpose.\n2.5.5 Return of Confidential Information. Upon completion of the inquiry or investigation referred to in the Information Request, or\nfor any reason the Authorized Person is, or will no longer be an Authorized Person, the Authorized Person shall (a) return the\nConfidential Information and all copies thereof to PJM, or (b) provide a certification that the Authorized Person has destroyed all\npaper copies and deleted all electronic copies of the Confidential Information. PJM may waive this condition in writing if such\nConfidential Information has become publicly available or non-confidential in the course of business or pursuant to the PJM\nTariff, PJM rule or order of the FERC.\n2.5.6 Notice of Disclosures. The Authorized Person, directly or through the Authorized Commission, shall promptly notify PJM, and\nPJM shall promptly notify any Affected Member, of any inadvertent or intentional release or possible release of the Confidential\nInformation provided pursuant to this Agreement. The Authorized Person shall take all steps to minimize any further release of\nConfidential Information, and shall take reasonable steps to attempt to retrieve any Confidential Information that may have been\nreleased.\n2.6 Ownership and Privilege. Nothing in this Agreement, or incident to the provision of Confidential Information to the Authorized Person\npursuant to any Information Request, is intended, nor shall it be deemed, to be a waiver or abandonment of any legal privilege that may\nbe asserted against subsequent disclosure or discovery in any formal proceeding or investigation. Moreover, no transfer or creation of\nownership rights in any intellectual property comprising Confidential Information is intended or shall be inferred by the disclosure of\nConfidential Information by PJM, and any and all intellectual property comprising Confidential Information disclosed and any\nderivations thereof shall continue to be the exclusive intellectual property of PJM and/or the Affected Member.\nPJM Interconnection, L.L.C.\nSubstitute Original Sheet No. 197E\nThird Revised Rate Schedule FERC No. 24\nSuperseding Original Sheet No. 197E\n3.\nProcedure for Information Requests\n3.1 Written Requests. Information Requests to PJM shall be in writing, which shall include electronic communications, addressed to the\nPJM Market Monitor or other PJM representatives as specified by PJM, with a concurrent copy to PJM's General Counsel, and shall: (a)\ndescribe with particularity the information sought; (b) provide a description of the purpose of the Information Request; (c) state the time\nperiod for which information is requested; and (d) re-affirm that only the Authorized Person shall have access to the Confidential\nInformation requested. PJM shall provide an Affected Member with written notice, which shall include electronic communication, of an\nInformation Request of the Authorized Person as soon as possible, but not later than two (2) business days after the receipt of the\nInformation Request.\n3.2 Oral Disclosures by the PJM Market Monitor. The PJM Market Monitor or other PJM representatives as specified by PJM may, in the\ncourse of discussions with an Authorized Person, orally disclose information otherwise required to be maintained in confidence, without\nthe need for a prior Information Request. Such oral disclosures shall provide enough information to enable the Authorized Person or the\nState Commission to determine whether additional Information Requests for information are appropriate. The PJM Market Monitor or\nother PJM representative will not make any written or electronic disclosures of Confidential Information to the Authorized Person\npursuant to this section. In any such discussions, the PJM Market Monitor or other PJM representative shall ensure that the individual or\nindividuals receiving such Confidential Information are Authorized Persons under this Agreement, orally designate Confidential\nInformation that is disclosed, and refrain from identifying any specific Affected Member whose information is disclosed. The PJM\nMarket Monitor or other PJM representative shall also be authorized to assist Authorized Persons in interpreting Confidential\nInformation that is disclosed. PJM or the PJM Market Monitor shall (i) maintain a written record of oral disclosures pursuant to this\nsection, which shall include the date of each oral disclosure and the Confidential. Information disclosed in each such oral disclosure, and\n(ii) provide any Affected Member with oral notice of any oral disclosure immediately, but not later than one (1) business day after the\noral disclosure. Such oral notice to the Affected Member shall include the substance of the oral disclosure, but shall not reveal any\nConfidential Information of any other Member and must be received by the Affected Member before the name of the Affected Member\nis released to the Authorized Person; provided however, the identity of the Affected Party must be made available to the Authorized\nPerson within two (2) business days of the initial oral disclosure.\nPJM Interconnection, L.L.C.\nOriginal Sheet No. 197F\nThird Revised Rate Schedule FERC No. 24\n3.3 Response to Information Requests.\n3.3.1 Subject to the provisions of Section 3.3.2 below, PJM shall supply Confidential Information to the Authorized Person in response\nto any Information Request within five (5) business days of the receipt of the Information Request, to the extent that the requested\nConfidential Information can be made available within such period; provided however, that in no event shall Confidential\nInformation be released prior to the end of the fourth (4th) business day without the express consent of the Affected Member. To\nthe extent that PJM can not reasonably prepare and deliver the requested Confidential Information within such five (5) day\nperiod, PJM shall, within such period, provide the Authorized Person with a written schedule for the provision of such remaining\nConfidential Information. Upon providing Confidential Information to the Authorized Person, PJM shall either provide a copy of\nthe Confidential Information to the Affected Member(s), or provide a listing of the Confidential Information disclosed; provided,\nhowever, that PJM shall not reveal any Member's Confidential Information to any other Member.\n3.3.2 Notwithstanding section 3.3.1, above, should PJM or an Affected Member object to an Information Request or any portion\nthereof, PJM or the Affected Member may, within four (4) business days following PJM's receipt of the Information Request,\nrequest, in writing (which shall include electronic communication) addressed to the State Commission with a copy to either\nthe\nAffected Party or PJM, as the case may be, a conference with the State Commission or the State Commission's authorized\ndesignee to resolve differences concerning the scope or timing of the Information Request; provided, however, nothing herein\nshall require the State Commission to participate in any conference. Any party to the conference may seek assistance from FERC\nstaff in resolution of the dispute. Should such conference be refused by any participant, or not resolve the dispute, then PJM, the\nAffected Member or the State Commission may initiate appropriate legal action at FERC within three (3) business days following\nreceipt of written notice from any conference participant terminating such conference. Any complaints filed at FERC objecting to\na particular Information Request shall be designated by the party as a "fast track" complaint and each party shall bear its own\ncosts in connection with such FERC proceeding. If no FERC proceeding regarding the Information Request is commenced by\nPJM, the Affected Member or the State Commission within such three day period, PJM shall utilize its best efforts to respond to\nthe Information Request promptly.\n3.3.3 To the extent that a response to any Information Request requires disclosure of Confidential Information of two or more Affected\nParties, PJM shall, to the extent possible, segregate such information and respond to the Information Request separately for each\nAffected Member.\nPJM Interconnection, L.L.C.\nOriginal Sheet No. 197G\nThird Revised Rate Schedule FERC No. 24\n4. Remedies.\n4.1 Material Breach. The Authorized Person agrees that release of Confidentia Information to persons not authorized to receive it\nconstitutes a breach of this Agreement and may cause irreparable harm to PJM and/or the Affected Member. In the event of a breach of\nthis Agreement by the Authorized Person, PJM shall terminate this Agreement upon written notice to the Authorized Person and his or\nher Authorized Commission, and all rights of the Authorized Person hereunder shall thereupon terminate; provided, however, that PJM\nmay restore an individual's status as an Authorized Person after consulting with the Affected Member and to the extent that: (i) PJM\ndetermines that the disclosure was not due to the intentional, reckless or negligent action or omission of the Authorized Person; (ii) there\nwere no harm or damages suffered by the Affected Member; or (iii) similar good cause shown. Any appeal of PJM's actions under this\nsection shall be to FERC.\n4.2 Judicial Recourse. In the event of any breach of this Agreement, PJM and/or the Affected Member shall have the right to seek and\nobtain at least the following types of relief: (a) an order from FERC requiring any breach to cease and preventing any future breaches;\n(b) temporary, preliminary, and/or permanent injunctive relief with respect to any breach; and (c) the immediate return of all Confidential\nInformation to PJM. The Authorized Person expressly agrees that in the event of a breach of this Agreement, any relief sought properly\nincludes, but shall not be limited to, the immediate return of all Confidential Information to PJM.\n4.3 Waiver of Monetary Damages. No Authorized Person shall have responsibility or liability whatsoever under this Agreement for any\nand all liabilities, losses, damages, demands, fines, monetary judgments, penalties, costs and expenses caused by, resulting from,\nor\narising out of, or in connection with, the release of Confidential Information to persons not authorized to receive it, provided that such\nAuthorized Person is an employee or member of an Authorized Commission at the time of such unauthorized release. Nothing in this\nSection 4.3 is intended to limit the liability of any person who is not an employee of or a member of an Authorized Commission at the\ntime of such unauthorized release for any and all economic losses, damages, demands, fines, monetary judgments, penalties, costs and\nexpenses caused by, resulting from, or arising out of or in connection with such unauthorized release.\n5.\nJurisdiction. The Parties agree that (i) any dispute or conflict requesting the relief in sections 4.1, and 4.2(a) above shall be submitted to\nFERC for hearing and resolution; (ii) any dispute or conflict requesting the relief in section 4.2(c) above may be submitted to FERC or any\ncourt of competent jurisdiction for hearing and resolution; and (iii) jurisdiction over all other actions and requested relief shall lie in any court\nof competent jurisdiction.\nPJM Interconnection, L.L.C.\nSubstitute Original Sheet No. 197H\nThird Revised Rate Schedule FERC No. 24\nSuperseding Original Sheet No. 197H\n6.\nNotices. All notices required pursuant to the terms of this Agreement shall be in writing, and served upon the following individuals in person,\nor at the following addresses or email addresses:\nIf to the Authorized Person:\n(email address)\nwith a copy to\n(email address)\nIf to PJM:\nMarket Monitor\nPJM Interconnection, LLC\n955 Jefferson Avenue\nValley Forge Corporate Center\nNorristown, PA 19403\nbowrij@pjm.com\nwith a copy to\nGeneral Counsel\n955 Jefferson Avenue\nValley Forge Corporate Center\nNorristown, PA 19403\nhagelj@pjm.com\nPJM Interconnection, L.L.C.\nSubstitute Original Sheet No. 197I\nThird Revised Rate Schedule FERC No. 24\nSuperseding Original Sheet No. 197I\n7.\nSeverability and Survival. In the event any provision of this Agreement is determined to be unenforceable as a matter of law, the Parties\nintend that all other provisions of this Agreement remain in full force and effect in accordance with their terms. In the event of conflicts\nbetween the terms of this Agreement and the Operating Agreement, the terms of the Operating Agreement shall in all events be controlling.\nThe Authorized Person acknowledges that any and all obligations of the Authorized Person hereunder shall survive the severance or\ntermination of any employment or retention relationship between the Authorized Person and their respective Authorized Commission.\n8. Representations. The undersigned represent and warrant that they are vested with all necessary corporate, statutory and/or regulatory\nauthority to execute and deliver this Agreement, and to perform all of the obligations and duties contained herein.\n9.\nThird Party Beneficiaries. The Parties specifically agree and acknowledge that each Member as defined in the Operating Agreement is an\nintended third party beneficiary of this Agreement entitled to enforce its provisions.\n10. Counterparts. This Agreement may be executed in counterparts and all such counterparts together shall be deemed to constitute a single\nexecuted original.\n11. Amendment. This Agreement may not be amended except by written agreement executed by authorized representatives of the Parties.\nPJM INTERCONNECTION, L.L.C.\nAUTHORIZED PERSON\nBy:\nBy:\nName:\nName:\nTitle:\nTitle: PJM Interconnection, L.L.C.\nSubstitute First Revised Sheet No. 197\nThird Revised Rate Schedule FERC No. 24\nSuperseding First Revised Sheet No. 197\nSCHEDULE 10 -\nFORM OF NON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (the “Agreement”) is made this\nday of\n, 2004, by and between\n,an\nAuthorized Person, as defined below, of\n(the “State Commission”) having jurisdiction within the State of\n, with offices at\nand PJM Interconnection, L.L .C., a Delaware limited liability company, with offices at 955 Jefferson Avenue, Valley Forge Corporate\nCenter, Norristown, PA 10403 (“PJM”). The State Commission and PJM shall be referred to herein individually as a “Party,” or collectively as the\n“Parties.”\nRECITALS\nWhereas , PJM serves as the Regional Transmission Organization with reliability and/or functional control responsibilities over transmission\nsystems involving fourteen states including the District of Columbia, and operates and oversees wholesale markets for electricity pursuant to the\nrequirements of the PJM Tariff and the Operating Agreement, as defined below; and\nWhereas, the PJM Market Monitor serves as the monitor for PJM’s wholesale markets for electricity, and\nWhereas , the Operating Agreement requires that PJM and the PJM Market Monitor maintain the confidentiality of Confidential Information;\nand\nWhereas , the Operating Agreement requires PJM and the PJM Market Monitor to disclose Confidential Information to Authorized Persons\nupon satisfaction of conditions stated in the Operating Agreement, including, but not limited to, the execution of this Agreement by the Authorized\nPerson and the maintenance of the confidentiality of such information pursuant to the terms of this Agreement; and\nWhereas , PJM desires to provide Authorized Persons with the broadest possible access to Confidential Information, consistent with PJM’s\nand the PJM Market Monitor’s obligations and duties under the PJM Operating Agreement, the PJM Tariff and other applicable FERC directives;\nand\nWhereas , this Agreement is a statement of the conditions and requirements, consistent with the requirements of the Operating Agreement,\nwhereby PJM or the PJM Market Monitor may provide Confidential Information to the Authorized Person.\nPJM Interconnection, L.L.C.\nOriginal Sheet No. 197A\nThird Revised Rate Schedule FERC No. 24\nNOW, THERFORE, intending to be legally bound, the Parties hereby agree as follows:\n1. DEFINITIONS.\n1.1 Affected Member. A Member of PJM which as a result of its participation in PJM’s markets or its membership in PJM provided\nConfidential Information to PJM, which Confidential Information is requested by, or is disclosed to an Authorized Person under this\nAgreement.\n1.2 Authorized Commission. (i) A State (which shall include the District of Columbia) public utility commission within the geographic\nlimits of the PJM Region (as that term in defined in the Operating Agreement) that regulates the distribution or supply of electricity to\nretail customers and is legally charged with monitoring the operation of wholesale or retail markets serving retail suppliers or customers\nwithin its State or (ii) an association or organization comprised exclusively of State public utility commissions described in the\nimmediately preceding clause (i).\n1.3 Authorized Person. A person, including the undersigned, which has executed this Agreement and is authorized in writing by an\nAuthorized Commission to receive and discuss Confidential Information. Authorized Persons may include attorneys representing an\nAuthorized Commission, consultants and/or contractors directly employed or retained by an Authorized Commission, provided however\nthat consultants or contractors may not initiate requests for Confidential Information from PJM or the PJM Market Monitor\n1.4 Confidential Information. Any information that would be considered non-public or confidential under the Operating Agreement.\n1.5 FERC. The Federal Energy Regulatory Commission.\n1.6 Information Request. A written request, in accordance with the terms of this Agreement for disclosure of Confidential Information\npursuant to Section 18.17 .4 of the Operating Agreement.\n1.7 Operating Agreement. The Amended and Restated Operating Agreement of PJM Interconnection, L.L .C., as it may be further amended\nor restated from time to time.\n1.8 PJM Market Monitor. The Market Monitoring Unit established under Attachment M to the PJM Tariff.\n1.9 PJM Tariff. The PJM Open Access Transmission Tariff, as it may be amended from time to time.\n1.10 Third Party Request. Any request or demand by any entity upon an Authorized Person or an Authorized Commission for release or\ndisclosure of Confidential Information. A Third Party Request shall include, but shall not be limited to, any subpoena, discovery request,\nor other request for Confidential Information made by any: (i) federal, state, or local governmental subdivision, department, official,\nagency or court, or (ii) arbitration panel, business, company, entity or individual.\nPJM Interconnection, L.L.C.\nOriginal Sheet No. 197B\nThird Revised Rate Schedule FERC No. 24\n2. Protection of Confidentiality.\n2.1 Duty to Not Disclose. The Authorized Person represents and warrants that he or she: (i) is presently an Authorized Person as defined\nherein; (ii) is duly authorized to enter into and perform this Agreement; (iii) has adequate procedures to protect against the release of\nConfidential Information, and (iv) is familiar with, and will comply with, all such applicable State Commission procedures. The\nAuthorized Person hereby covenants and agrees on behalf of himself or herself to deny any Third Party Request and defend against any\nlegal process which seeks the release of Confidential Information in contravention of the terms of this Agreement.\n2.2 Conditions Precedent. As a condition of the execution, delivery and effectiveness of this Agreement by PJM and the continued\nprovision of Confidential Information pursuant to the terms of this Agreement, the Authorized Commission shall, prior to the initial oral\nor written request for Confidential Information by an Authorized Person on its behalf, provide PJM with: (a) a final order of FERC\nprohibiting the release by the Authorized Person or the State Commission of Confidential Information in accordance with the terms of\nthe Operating Agreement and this Agreement; and (b) either an order of the State Commission or a certification from counsel to the State\nCommission, confirming that the State Commission has statutory authority to protect the confidentiality of the Confidential Information\nfrom public release or disclosure and from release or disclosure to any other entity, and that it has adequate procedures to protect against\nthe release of Confidential Information; and (c) confirmation in writing that the Authorized Person is authorized by the State\nCommission to enter into this Agreement and to receive Confidential Information under the Operating Agreement. PJM and the PJM\nMarket Monitor shall be expressly entitled to rely upon such FERC and State Commission orders and/or certifications of counsel in\nproviding Confidential Information to the Authorized Person, and shall in no event be liable, or subject to damages or claims of any kind\nor nature hereunder or pursuant to the Operating Agreement, due to the ineffectiveness of the FERC and/or State Commission orders, or\nthe inaccuracy of such certification of counsel.\n2.3 Discussion of Confidential Information with other Authorized Persons . The Authorized Person may discuss Confidential\nInformation with other Authorized Persons who have executed non-disclosure agreements with PJM containing the same terms and\nconditions as this Agreement; provided, however, that PJM shall have confirmed in advance and in writing that PJM has previously\nreleased the Confidential Information in question to such Authorized Persons. PJM shall respond to any written request for confirmation\nwithin two (2) business days of its receipt.\nPJM Interconnection, L.L.C.\nSubstitute Original Sheet No. 197C\nThird Revised Rate Schedule FERC No. 24\nSuperseding Original Sheet No. 197C\n2.4 Defense Against Third Party Requests. The Authorized Person shall defend against any disclosure of Confidential Information\npursuant to any Third Party Request through all available legal process, including, but not limited to, obtaining any necessary protective\norders. The Authorized Person shall provide PJM, and PJM shall provide each Affected Member, with prompt notice of any such Third\nParty Request or legal proceedings, and shall consult with PJM and/or any Affected Member in its efforts to deny the request or defend\nagainst such legal process. In the event a protective order or other remedy is denied, the Authorized Person agrees to furnish only that\nportion of the Confidential Information which their legal counsel advises PJM (and of which PJM shall, in turn, advise any Affected\nMembers) in writing is legally required to be furnished, and to exercise their best efforts to obtain assurance that confidential treatment\nwill be accorded to such Confidential Information.\n2.5 Care and Use of Confidential Information.\n2.5.1 Control of Confidential Information. The Authorized Person(s) shall be the custodian(s) of any and all Confidential\nInformation received pursuant to the terms of this Agreement from PJM or the PJM Market Monitor.\n2.5.2 Access to Confidential Information. The Authorized Person shall ensure that Confidential Information received by that\nAuthorized Person is disseminated only to those persons publicly identified as Authorized Persons on Exhibit “A” to the\ncertification provided by the State Commission to PJM pursuant to the procedures contained in section 2.3 of this Agreement.\n2.5.3 Schedule of Authorized Persons.\n(i) The Authorized Person shall promptly notify PJM of any change that would affect the Authorized Person’s status as an\nAuthorized Person, and in such event shall request, in writing, deletion from the schedule referred to in section (ii), below.\n(ii) PJM shall maintain a schedule of all Authorized Persons and the Authorized Commissions they represent, which shall be\nmade publicly available on the PJM website and/or by written request. Such schedule shall be compiled by PJM, based on\ninformation provided by any Authorized Person and/or Authorized Commission. PJM shall update the schedule promptly\nupon receipt of information from an Authorized Person or Authorized Commission, but shall have no obligation to verify\nor corroborate any such information, and shall not be liable or otherwise responsible for any inaccuracies in the schedule\ndue to incomplete or erroneous information conveyed to and relied upon by PJM in the compilation and/or maintenance of\nthe schedule.\nPJM Interconnection, L.L.C.\nOriginal Sheet No. 197D\nThird Revised Rate Schedule FERC No. 24\n2.5.4 Use of Confidential Information. The Authorized Person shall use the Confidential Information solely for the purpose of\nassisting the State Commission in discharging its legal responsibility to monitor the wholesale and retail electricity markets,\noperations, transmission planning and siting and generation planning and siting materially affecting retail customers within the\nState, and for no other purpose.\n2.5.5 Return of Confidential Information. Upon completion of the inquiry or investigation referred to in the Information Request, or\nfor any reason the Authorized Person is, or will no longer be an Authorized Person, the Authorized Person shall (a) return the\nConfidential Information and all copies thereof to PJM, or (b) provide a certification that the Authorized Person has destroyed all\npaper copies and deleted all electronic copies of the Confidential Information. PJM may waive this condition in writing if such\nConfidential Information has become publicly available or non-confidential in the course of business or pursuant to the PJM\nTariff, PJM rule or order of the FERC.\n2.5.6 Notice of Disclosures. The Authorized Person, directly or through the Authorized Commission, shall promptly notify PJM, and\nPJM shall promptly notify any Affected Member, of any inadvertent or intentional release or possible release of the Confidential\nInformation provided pursuant to this Agreement. The Authorized Person shall take all steps to minimize any further release of\nConfidential Information, and shall take reasonable steps to attempt to retrieve any Confidential Information that may have been\nreleased.\n2.6 Ownership and Privilege. Nothing in this Agreement, or incident to the provision of Confidential Information to the Authorized Person\npursuant to any Information Request, is intended, nor shall it be deemed, to be a waiver or abandonment of any legal privilege that may\nbe asserted against subsequent disclosure or discovery in any formal proceeding or investigation. Moreover, no transfer or creation of\nownership rights in any intellectual property comprising Confidential Information is intended or shall be inferred by the disclosure of\nConfidential Information by PJM, and any and all intellectual property comprising Confidential Information disclosed and any\nderivations thereof shall continue to be the exclusive intellectual property of PJM and/or the Affected Member.\nPJM Interconnection, L.L.C.\nSubstitute Original Sheet No. 197E\nThird Revised Rate Schedule FERC No. 24\nSuperseding Original Sheet No. 197E\n3. Procedure for Information Requests\n3.1 Written Requests. Information Requests to PJM shall be in writing, which shall include electronic communications, addressed to the\nPJM Market Monitor or other PJM representatives as specified by PJM, with a concurrent copy to PJM’s General Counsel, and shall: (a)\ndescribe with particularity the information sought; (b) provide a description of the purpose of the Information Request; (c) state the time\nperiod for which information is requested; and (d) re-affirm that only the Authorized Person shall have access to the Confidential\nInformation requested. PJM shall provide an Affected Member with written notice, which shall include electronic communication, of an\nInformation Request of the Authorized Person as soon as possible, but not later than two (2) business days after the receipt of the\nInformation Request.\n3.2 Oral Disclosures by the PJM Market Monitor. The PJM Market Monitor or other PJM representatives as specified by PJM may, in the\ncourse of discussions with an Authorized Person, orally disclose information otherwise required to be maintained in confidence, without\nthe need for a prior Information Request. Such oral disclosures shall provide enough information to enable the Authorized Person or the\nState Commission to determine whether additional Information Requests for information are appropriate. The PJM Market Monitor or\nother PJM representative will not make any written or electronic disclosures of Confidential Information to the Authorized Person\npursuant to this section. In any such discussions, the PJM Market Monitor or other PJM representative shall ensure that the individual or\nindividuals receiving such Confidential Information are Authorized Persons under this Agreement, orally designate Confidential\nInformation that is disclosed, and refrain from identifying any specific Affected Member whose information is disclosed. The PJM\nMarket Monitor or other PJM representative shall also be authorized to assist Authorized Persons in interpreting Confidential\nInformation that is disclosed. PJM or the PJM Market Monitor shall (i) maintain a written record of oral disclosures pursuant to this\nsection, which shall include the date of each oral disclosure and the Confidential. Information disclosed in each such oral disclosure, and\n(ii) provide any Affected Member with oral notice of any oral disclosure immediately, but not later than one (1) business day after the\noral disclosure. Such oral notice to the Affected Member shall include the substance of the oral disclosure, but shall not reveal any\nConfidential Information of any other Member and must be received by the Affected Member before the name of the Affected Member\nis released to the Authorized Person; provided however, the identity of the Affected Party must be made available to the Authorized\nPerson within two (2) business days of the initial oral disclosure.\nPJM Interconnection, L.L.C.\nOriginal Sheet No. 197F\nThird Revised Rate Schedule FERC No. 24\n3.3 Response to Information Requests.\n3.3.1 Subject to the provisions of Section 3.3.2 below, PJM shall supply Confidential Information to the Authorized Person in response\nto any Information Request within five (5) business days of the receipt of the Information Request, to the extent that the requested\nConfidential Information can be made available within such period; provided however, that in no event shall Confidential\nInformation be released prior to the end of the fourth (4th) business day without the express consent of the Affected Member. To\nthe extent that PJM can not reasonably prepare and deliver the requested Confidential Information within such five (5) day\nperiod, PJM shall, within such period, provide the Authorized Person with a written schedule for the provision of such remaining\nConfidential Information. Upon providing Confidential Information to the Authorized Person, PJM shall either provide a copy of\nthe Confidential Information to the Affected Member(s), or provide a listing of the Confidential Information disclosed; provided,\nhowever, that PJM shall not reveal any Member’s Confidential Information to any other Member.\n3.3.2 Notwithstanding section 3.3.1, above, should PJM or an Affected Member object to an Information Request or any portion\nthereof, PJM or the Affected Member may, within four (4) business days following PJM’s receipt of the Information Request,\nrequest, in writing (which shall include electronic communication) addressed to the State Commission with a copy to either the\nAffected Party or PJM, as the case may be, a conference with the State Commission or the State Commission’s authorized\ndesignee to resolve differences concerning the scope or timing of the Information Request; provided, however, nothing herein\nshall require the State Commission to participate in any conference. Any party to the conference may seek assistance from FERC\nstaff in resolution of the dispute. Should such conference be refused by any participant, or not resolve the dispute, then PJM, the\nAffected Member or the State Commission may initiate appropriate legal action at FERC within three (3) business days following\nreceipt of written notice from any conference participant terminating such conference. Any complaints filed at FERC objecting to\na particular Information Request shall be designated by the party as a “fast track” complaint and each party shall bear its own\ncosts in connection with such FERC proceeding. If no FERC proceeding regarding the Information Request is commenced by\nPJM, the Affected Member or the State Commission within such three day period, PJM shall utilize its best efforts to respond to\nthe Information Request promptly.\n3.3.3 To the extent that a response to any Information Request requires disclosure of Confidential Information of two or more Affected\nParties, PJM shall, to the extent possible, segregate such information and respond to the Information Request separately for each\nAffected Member.\nPJM Interconnection, L.L.C.\nOriginal Sheet No. 197G\nThird Revised Rate Schedule FERC No. 24\n4. Remedies.\n4.1 Material Breach. The Authorized Person agrees that release of Confidential Information to persons not authorized to receive it\nconstitutes a breach of this Agreement and may cause irreparable harm to PJM and/or the Affected Member. In the event of a breach of\nthis Agreement by the Authorized Person, PJM shall terminate this Agreement upon written notice to the Authorized Person and his or\nher Authorized Commission, and all rights of the Authorized Person hereunder shall thereupon terminate; provided, however, that PJM\nmay restore an individual’s status as an Authorized Person after consulting with the Affected Member and to the extent that: (i) PJM\ndetermines that the disclosure was not due to the intentional, reckless or negligent action or omission of the Authorized Person; (ii) there\nwere no harm or damages suffered by the Affected Member; or (iii) similar good cause shown. Any appeal of PJM’s actions under this\nsection shall be to FERC.\n4.2 Judicial Recourse. In the event of any breach of this Agreement, PJM and/or the Affected Member shall have the right to seek and\nobtain at least the following types of relief: (a) an order from FERC requiring any breach to cease and preventing any future breaches;\n(b) temporary, preliminary, and/or permanent injunctive relief with respect to any breach; and (c) the immediate return of all Confidential\nInformation to PJM. The Authorized Person expressly agrees that in the event of a breach of this Agreement, any relief sought properly\nincludes, but shall not be limited to, the immediate return of all Confidential Information to PJM.\n4.3 Waiver of Monetary Damages. No Authorized Person shall have responsibility or liability whatsoever under this Agreement for any\nand all liabilities, losses, damages, demands, fines, monetary judgments, penalties, costs and expenses caused by, resulting from, or\narising out of, or in connection with, the release of Confidential Information to persons not authorized to receive it, provided that such\nAuthorized Person is an employee or member of an Authorized Commission at the time of such unauthorized release. Nothing in this\nSection 4.3 is intended to limit the liability of any person who is not an employee of or a member of an Authorized Commission at the\ntime of such unauthorized release for any and all economic losses, damages, demands, fines, monetary judgments, penalties, costs and\nexpenses caused by, resulting from, or arising out of or in connection with such unauthorized release.\n5. Jurisdiction. The Parties agree that (i) any dispute or conflict requesting the relief in sections 4.1, and 4.2(a) above shall be submitted to\nFERC for hearing and resolution; (ii) any dispute or conflict requesting the relief in section 4.2(c) above may be submitted to FERC or any\ncourt of competent jurisdiction for hearing and resolution; and (iii) jurisdiction over all other actions and requested relief shall lie in any court\nof competent jurisdiction.\nPJM Interconnection, L.L.C.\nSubstitute Original Sheet No. 197H\nThird Revised Rate Schedule FERC No. 24\nSuperseding Original Sheet No. 197H\n6. Notices. All notices required pursuant to the terms of this Agreement shall be in writing, and served upon the following individuals in person,\nor at the following addresses or email addresses:\nIf to the Authorized Person:\n_ ___ ___ ___ ___ ___ ____ ___\n_ ___ ___ ___ ___ ___ ____ ___\n_ ___ ___ ___ ___ ___ ____ ___\n_ ___ ___ ___ ___ ___ ____ ___\n(email address)\nwith a copy to\n_ ___ ___ ___ ___ ___ ____ ___\n_ ___ ___ ___ ___ ___ ____ ___\n_ ___ ___ ___ ___ ___ ____ ___\n_ ___ ___ ___ ___ ___ ____ ___\n(email address)\nIf to PJM:\nMarket Monitor\nPJM Interconnection, LLC\n955 Jefferson Avenue\nValley Forge Corporate Center\nNorristown, PA 19403\nbowrij@pjm.com\nwith a copy to\nGeneral Counsel\n955 Jefferson Avenue\nValley Forge Corporate Center\nNorristown, PA 19403\nhagelj@pjm.com\nPJM Interconnection, L.L.C.\nSubstitute Original Sheet No. 197I\nThird Revised Rate Schedule FERC No. 24\nSuperseding Original Sheet No. 197I\n7. Severability and Survival. In the event any provision of this Agreement is determined to be unenforceable as a matter of law, the Parties\nintend that all other provisions of this Agreement remain in full force and effect in accordance with their terms. In the event of conflicts\nbetween the terms of this Agreement and the Operating Agreement, the terms of the Operating Agreement shall in all events be controlling.\nThe Authorized Person acknowledges that any and all obligations of the Authorized Person hereunder shall survive the severance or\ntermination of any employment or retention relationship between the Authorized Person and their respective Authorized Commission.\n8. Representations. The undersigned represent and warrant that they are vested with all necessary corporate, statutory and/or regulatory\nauthority to execute and deliver this Agreement, and to perform all of the obligations and duties contained herein.\n9. Third Party Beneficiaries. The Parties specifically agree and acknowledge that each Member as defined in the Operating Agreement is an\nintended third party beneficiary of this Agreement entitled to enforce its provisions.\n10. Counterparts. This Agreement may be executed in counterparts and all such counterparts together shall be deemed to constitute a single\nexecuted original.\n11. Amendment. This Agreement may not be amended except by written agreement executed by authorized representatives of the Parties.\nPJM INTERCONNECTION, L.L .C.\nAUTHORIZED PERSON\nBy:\nBy:\nName:\nName:\nTitle:\nTitle: 294941062474a6d42bdb6b9d4ab4545f.pdf effective_date jurisdiction party term EX-99.(D)(5) 11 d651999dex99d5.htm EX-(D)(5)\nExhibit (d)(5)\nEXECUTION VERSION\nCONFIDENTIAL\n3-WAY NON-DISCLOSURE AGREEMENT\nThis 3-WAY NON-DISCLOSURE AGREEMENT is made and entered into as of this 15th day of November, 2018 (the “Effective Date”), among\nTESARO, Inc. (“TESARO”), located at 1000 Winter Street, Waltham, MA 02451, GlaxoSmithKline LLC, located at 1250 South Collegeville Road,\nCollegeville, PA 19426 (“GSK”), and Ajinomoto Althea, Inc.DBA Ajinomoto Bio-Pharma Services(“ABPS”), located at 11040 Roselle Street, San\nDiego, CA 92121 (“APBS”). TESARO, GSK and Althea may be referred to, collectively, in this Agreement as the “Parties”, and, individually, as a\n“Party”.\n1. Purpose. TESARO and GSK are in discussions concerning a potential co-development collaboration for one or more of TESARO’s biologic\nproduct candidates, for which Althea performs sterile cGMP fill/finish services, and in connection therewith, GSK has requested to engage in\nbackground due diligence with Althea in regard to such sterile cGMP fill/finish services (the “Stated Purpose”). In connection with such due\ndiligence discussions, the Disclosing Party, may disclose or make available to the Receiving Party certain information which the Disclosing Party\ndesires the Receiving Party treat as confidential.\n2. Definition. “Confidential Information” means all information and materials of a confidential, secret or proprietary nature disclosed by or on\nbehalf of one Party (a “Disclosing Party”) to another Party (a “Receiving Party”), either directly or indirectly, in writing, orally or by inspection\nof tangible objects, including, without limitation, information and materials regarding technology, products, product candidates, research and\ndevelopment activities, results, compound designs or structures, manufacturing or other processes or methods, know-how, inventions or other\nintellectual property, the existence or content of licenses, the existence, status or content of licensing or collaboration negotiations, other\nagreements with third parties, information regarding facilities and financial and other business information, in each case whether or not identified\nor marked as “confidential” and including all documents, presentations, information, reports, materials, evaluations and copies to the extent\nincorporating or generated from any of the foregoing. Disclosing Party’s Confidential Information may also include information obtained by\nDisclosing Party from its collaborators, customers, suppliers, vendors and other third parties who have entrusted their confidential information to\nDisclosing Party.\nConfidential Information shall not, however, include any information which the Receiving Party can establish by written record: (i) was publicly\nknown and available in the public domain prior to the time of disclosure by Disclosing Party to Receiving Party; (ii) becomes publicly known and\navailable after disclosure by Disclosing Party to Receiving Party through no action or inaction of Receiving Party or any of Receiving Party’s\nagents or employees; (iii) was already in possession of Receiving Party, as evidenced by Receiving Party’s contemporaneous records, immediately\nprior to the time of disclosure to Receiving Party by Disclosing Party; (iv) is obtained by Receiving Party from a third party who has a right to\ndisclose such information free of any obligation of confidentiality and who did not derive the information from Disclosing Party; and (v) is\nindependently developed by Receiving Party without use of, or reference to, information provided by Disclosing Party as evidenced by Receiving\nParty’s contemporaneous records and other than under an agreement with the Disclosing Party.\n3. Non-Use and Non-Disclosure of Confidential Information. Receiving Party agrees not to use any Confidential Information of Disclosing Party\nfor any purpose other than the Stated Purpose or as otherwise approved in writing by Disclosing Party. Receiving Party agrees not to disclose any\nConfidential Information of Disclosing Party to any third party or to Receiving Party’s employees, except to those officers, employees, affiliates,\nagents or consultants (“Representatives”) of Receiving Party who have a specific need to know such information in\nTESARO 3-WAY NDA V1\nPage1of4\nEXECUTION VERSION\nCONFIDENTIAL\norder to advise Receiving Party for the Stated Purpose and who are bound by written obligations of confidentiality and restrictions on use that\ncover such Confidential Information and are at least as stringent as those set forth in this Agreement.\n4. Disclosure Required by Law. Notwithstanding anything in this Agreement to the contrary, Receiving Party may disclose Confidential\nInformation of Disclosing Party to the extent required by applicable law, including pursuant to a subpoena or other court or administrative order,\nprovided that Receiving Party gives Disclosing Party prompt written notice of such requirement prior to such disclosure and cooperates with\nDisclosing Party’s efforts to limit the scope of the information to be provided or to obtain an order protecting the information from public\ndisclosure.\n5. Maintenance of Confidentiality. Receiving Party agrees that it shall take all reasonable measures to protect the secrecy of and avoid disclosure\nand unauthorized use of the Confidential Information of the Disclosing Party but such measures shall be no less than a reasonable degree of care.\nWithout the prior written consent of Disclosing Party, Receiving Party shall not disclose to any person, other that its Represenatives, (i) that any\ninvestigations, discussions or negotiations are taking place concering the Stated Purpose, (ii) that Receiving Party or its Representatives have\nrequested or received any Confidential Information, or (iii) any of the terms, conditions or other facts with respect to the Stated Purpose or such\ninvestigations, discussons or negotiations, including the status thereof.\n6. No Obligation. Disclosing Party may at any time cease to make further disclosure of its Confidential Information, and Receiving Party may refuse\nto accept further disclosure of Disclosing Party’s Confidential Information. Nothing in this Agreement shall obligate either Party to proceed with\nany transaction between them, and each Party reserves the right, in such Party’s sole discretion, to terminate the discussions contemplated by this\nAgreement concerning the Stated Purpose.\n7. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. NEITHER PARTY MAKES ANY WARRANTIES,\nEXPRESS, IMPLIED OR OTHERWISE, TO THE OTHER PARTY REGARDING THE ACCURACY, COMPLETENESS OR\nPERFORMANCE OF CONFIDENTIAL INFORMATION DISCLOSED UNDER THIS AGREEMENT EXCEPT THAT IT HAS THE RIGHT\nTO DISCLOSE SUCH CONFIDENTIAL INFORMATION.\n8. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed or\nprovided to Receiving Party by or on behalf of Disclosing Party, and all copies of such Confidential Information, which are in the possession of\nReceiving Party, shall be and remain the property of Disclosing Party and shall be promptly returned to Disclosing Party or destroyed, as requested\nand directed in writing by Disclosing Party, and any memoranda, notes, reports and the like generated by Receiving Party with respect to such\nConfidential Information shall be destroyed upon Disclosing Party’s written request with confirmation of such destruction provided to Disclosing\nParty; provided that (i) Receiving Party may retain one copy of such Confidential Information solely for purposes of ensuring compliance with\nthis Agreement and (ii) Receiving Party shall not be obligated to return or destroy automatically created electronic copies stored on system\nback-up tapes.\n9. No Licenses. Nothing in this Agreement is intended to grant any rights or license to Receiving Party under any patent, copyright, trade secret or\nother intellectual property rights of Disclosing Party, nor shall this Agreement or the disclosure of Confidential Information be deemed to grant to\nReceiving Party any rights or licenses in or to the Confidential Information of Disclosing Party except as expressly set forth in this Agreement.\nTESARO 3-WAY NDA V1\nPage2of4\nEXECUTION VERSION\nCONFIDENTIAL\n10. Independent Activities. Disclosing Party understands and acknowledges that prior to the Effective Date, Receiving Party may have in the past, or\nis currently, either internally or with a third party, engaged in research, development and commercialization activities relating to the subject matter\nof Disclosing Party’s Confidential Information. Accordingly, Disclosing Party acknowledges and agrees that nothing in this Agreement will be\nconstrued by implication or otherwise as preventing Receiving Party, during the term of this Agreement or thereafter, from (i) either internally or\nwith a third party, engaging in research, development and commercialization activities relating to the subject matter of Disclosing Party’s\nConfidential Information, and (ii) evaluating such programs, compounds and capabilities of third parties relating to the subject matter of\nDisclosing Party’s Confidential Information, provided, that in each case of (i) and (ii), Receiving Party does not reference and does not use\nDisclosing Party’s Confidential Information disclosed under this Agreement in connection therewith.\n11. Term. This Agreement shall continue until the second anniversary of the Effective Date. Any Party may terminate this Agreement by providing\nwritten notice to the other Parties; provided, however, that the obligations of Receiving Party under this Agreement with regard to non-disclosure\nand restrictions on use of Confidential Information disclosed prior to such early termination shall not be altered by any such early termination and\nshall continue in effect for a period ending five (5) years after such expiration or termination.\n12. Miscellaneous. This Agreement shall bind and inure to the benefit of the Parties hereto and their successors and permitted assignees. This\nAgreement may not be assigned by either Party without the prior written consent of the other Party, except that a Party may assign this Agreement\nin connection with the sale of all, or substantially all, of the assets to which this Agreement relates. This Agreement shall be governed by the laws\nof the State of Delaware, without reference to conflict of laws principles. Each Party agrees that it shall bring any action or proceeding in respect\nto any claim arising out of or related to this Agreement exclusively in the courts of the State of Delaware and the Federal Courts of the United\nStates of America located in the State of Delaware and irrevocably submits to the exclusive jurisdiction of such courts. This document contains the\nentire agreement among the Parties with respect to the subject matter hereof (it being agreed and acknowledged by the Parties that each of the\nexisting Non-Disclosure Agreements between TESARO and GSK (on the one hand), and TESARO and ABPS (on the other hand) shall remain in\nfull force and effect without alteration by this Agreement). Any failure to enforce any provision of this Agreement shall not constitute a waiver of\nsuch provision or of any other provision. Disclosing Party shall have, in addition to any remedies available at law, the right to seek equitable relief\nto enforce this Agreement without the need for a bond or to prove harm. This Agreement may not be amended, nor any obligation waived, except\nby a written document signed by each of the Parties.\n[Signatures on next page]\nTESARO 3-WAY NDA V1\nPage3of4\nEXECUTION VERSION\nCONFIDENTIAL\nIN WITNESS WHEREOF, the Parties have executed this Agreement as of the date and year written above.\nTESARO, INC.\nGLAXOSMITHKLINE LLC\nBy: /s/ William Aitchison\nBy: /s/ Walter CP Plunkett\nName: William Aitchison\nName: Walter CP Plunkett\nTitle: SVP, Tech BPS\nTitle: Director Scientific Licensing\nAJINOMOTO ALTHEA, INC. DBA\nAjinomoto Bio-Pharma Services\nBy: Digitally signed by Craig W. Logan\nDate: 2018.11.15 10:54:22-08’00’\nName: Craig W. Logan\nTitle: VP Finance & CFO\nTESARO 3-WAY NDA V1\nPage4of4 EX-99.(D)(5) 11 d651999dex99d5.htm EX-(D)(5) Exhibit (d)(5)\nEXECUTION VERSION\nCONFIDENTIAL\n3-WAY NON-DISCLOSURE AGREEMENT\nThis 3-WAY NON-DISCLOSURE AGREEMENT is made and entered into as of this 15th day of November, 2018 (the “Effective Date”), among\nTESARO, Inc. (“TESARO”), located at 1000 Winter Street, Waltham, MA 02451, GlaxoSmithKline LLC, located at 1250 South Collegeville Road, Collegeville, PA 19426 (“GSK”), and Ajinomoto Althea, Inc. DBA Ajinomoto Bio-Pharma Services(“ABPS”), located at 11040 Roselle Street, San Diego, CA 92121 (“APBS”). TESARO, GSK and Althea may be referred to, collectively, in this Agreement as the “Parties”, and, individually, as a “Pal"ty”, 1. Purpose. TESARO and GSK are in discussions concerning a potential co-development collaboration for one or more of TESARO’s biologic\nproduct candidates, for which Althea performs sterile cGMP fill/finish services, and in connection therewith, GSK has requested to engage in\nbackground due diligence with Althea in regard to such sterile cGMP fill/finish services (the “Stated Purpose”). In connection with such due\ndiligence discussions, the Disclosing Party, may disclose or make available to the Receiving Party certain information which the Disclosing Party\ndesires the Receiving Party treat as confidential.\nDefinition. “Confidential Information” means all information and materials of a confidential, secret or proprietary nature disclosed by or on\nbehalf of one Party (a “Disclosing Party”) to another Party (a “Receiving Party”), either directly or indirectly, in writing, orally or by inspection\nof tangible objects, including, without limitation, information and materials regarding technology, products, product candidates, research and\ndevelopment activities, results, compound designs or structures, manufacturing or other processes or methods, know-how, inventions or other\nintellectual property, the existence or content of licenses, the existence, status or content of licensing or collaboration negotiations, other\nagreements with third parties, information regarding facilities and financial and other business information, in each case whether or not identified\nor marked as “confidential” and including all documents, presentations, information, reports, materials, evaluations and copies to the extent\nincorporating or generated from any of the foregoing. Disclosing Party’s Confidential Information may also include information obtained by\nDisclosing Party from its collaborators, customers, suppliers, vendors and other third parties who have entrusted their confidential information to\nDisclosing Party.\nConfidential Information shall not, however, include any information which the Receiving Party can establish by written record: (i) was publicly\nknown and available in the public domain prior to the time of disclosure by Disclosing Party to Receiving Party; (ii) becomes publicly known and\navailable after disclosure by Disclosing Party to Receiving Party through no action or inaction of Receiving Party or any of Receiving Party’s\nagents or employees; (iii) was already in possession of Receiving Party, as evidenced by Receiving Party’s contemporaneous records, immediately\nprior to the time of disclosure to Receiving Party by Disclosing Party; (iv) is obtained by Receiving Party from a third party who has a right to\ndisclose such information free of any obligation of confidentiality and who did not derive the information from Disclosing Party; and (v) is\nindependently developed by Receiving Party without use of, or reference to, information provided by Disclosing Party as evidenced by Receiving\nParty’s contemporaneous records and other than under an agreement with the Disclosing Party.\nNon-Use and Non-Disclosure of Confidential Information. Receiving Party agrees not to use any Confidential Information of Disclosing Party\nfor any purpose other than the Stated Purpose or as otherwise approved in writing by Disclosing Party. Receiving Party agrees not to disclose any\nConfidential Information of Disclosing Party to any third party or to Receiving Party’s employees, except to those officers, employees, affiliates,\nagents or consultants (“Representatives”) of Receiving Party who have a specific need to know such information in\nTESARO 3-WAY NDA V1 Page 1 of 4\fEXECUTION VERSION\nCONFIDENTIAL\norder to advise Receiving Party for the Stated Purpose and who are bound by written obligations of confidentiality and restrictions on use that\ncover such Confidential Information and are at least as stringent as those set forth in this Agreement.\n4. Disclosure Required by Law. Notwithstanding anything in this Agreement to the contrary, Receiving Party may disclose Confidential\nInformation of Disclosing Party to the extent required by applicable law, including pursuant to a subpoena or other court or administrative order,\nprovided that Receiving Party gives Disclosing Party prompt written notice of such requirement prior to such disclosure and cooperates with\nDisclosing Party’s efforts to limit the scope of the information to be provided or to obtain an order protecting the information from public\ndisclosure.\n5. Maintenance of Confidentiality. Receiving Party agrees that it shall take all reasonable measures to protect the secrecy of and avoid disclosure\nand unauthorized use of the Confidential Information of the Disclosing Party but such measures shall be no less than a reasonable degree of care.\nWithout the prior written consent of Disclosing Party, Receiving Party shall not disclose to any person, other that its Represenatives, (i) that any\ninvestigations, discussions or negotiations are taking place concering the Stated Purpose, (ii) that Receiving Party or its Representatives have\nrequested or received any Confidential Information, or (iii) any of the terms, conditions or other facts with respect to the Stated Purpose or such\ninvestigations, discussons or negotiations, including the status thereof.\n6. No Obligation. Disclosing Party may at any time cease to make further disclosure of its Confidential Information, and Receiving Party may refuse\nto accept further disclosure of Disclosing Party’s Confidential Information. Nothing in this Agreement shall obligate either Party to proceed with\nany transaction between them, and each Party reserves the right, in such Party’s sole discretion, to terminate the discussions contemplated by this\nAgreement concerning the Stated Purpose.\n7. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. NEITHER PARTY MAKES ANY WARRANTIES,\nEXPRESS, IMPLIED OR OTHERWISE, TO THE OTHER PARTY REGARDING THE ACCURACY, COMPLETENESS OR\nPERFORMANCE OF CONFIDENTIAL INFORMATION DISCLOSED UNDER THIS AGREEMENT EXCEPT THAT IT HAS THE RIGHT\nTO DISCLOSE SUCH CONFIDENTIAL INFORMATION.\n8. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed or\nprovided to Receiving Party by or on behalf of Disclosing Party, and all copies of such Confidential Information, which are in the possession of\nReceiving Party, shall be and remain the property of Disclosing Party and shall be promptly returned to Disclosing Party or destroyed, as requested\nand directed in writing by Disclosing Party, and any memoranda, notes, reports and the like generated by Receiving Party with respect to such\nConfidential Information shall be destroyed upon Disclosing Party’s written request with confirmation of such destruction provided to Disclosing\nParty; provided that (i) Receiving Party may retain one copy of such Confidential Information solely for purposes of ensuring compliance with\nthis Agreement and (ii) Receiving Party shall not be obligated to return or destroy automatically created electronic copies stored on system\nback-up tapes.\n9. No Licenses. Nothing in this Agreement is intended to grant any rights or license to Receiving Party under any patent, copyright, trade secret or\nother intellectual property rights of Disclosing Party, nor shall this Agreement or the disclosure of Confidential Information be deemed to grant to\nReceiving Party any rights or licenses in or to the Confidential Information of Disclosing Party except as expressly set forth in this Agreement.\nTESARO 3-WAY NDA V1 Page 2 of 4\nEXECUTION VERSION\nCONFIDENTIAL\n10. Independent Activities. Disclosing Party understands and acknowledges that prior to the Effective Date, Receiving Party may have in the past, or\nis currently, either internally or with a third party, engaged in research, development and commercialization activities relating to the subject matter\nof Disclosing Party’s Confidential Information. Accordingly, Disclosing Party acknowledges and agrees that nothing in this Agreement will be\nconstrued by implication or otherwise as preventing Receiving Party, during the term of this Agreement or thereafter, from (i) either internally or\nwith a third party, engaging in research, development and commercialization activities relating to the subject matter of Disclosing Party’s\nConfidential Information, and (ii) evaluating such programs, compounds and capabilities of third parties relating to the subject matter of\nDisclosing Party’s Confidential Information, provided, that in each case of (i) and (ii), Receiving Party does not reference and does not use\nDisclosing Party’s Confidential Information disclosed under this Agreement in connection therewith.\n11. Term. This Agreement shall continue until the second anniversary of the Effective Date. Any Party may terminate this Agreement by providing\nwritten notice to the other Parties; provided, however, that the obligations of Receiving Party under this Agreement with regard to non-disclosure\nand restrictions on use of Confidential Information disclosed prior to such early termination shall not be altered by any such early termination and\nshall continue in effect for a period ending five (5) years after such expiration or termination.\n12. Miscellaneous. This Agreement shall bind and inure to the benefit of the Parties hereto and their successors and permitted assignees. This\nAgreement may not be assigned by either Party without the prior written consent of the other Party, except that a Party may assign this Agreement\nin connection with the sale of all, or substantially all, of the assets to which this Agreement relates. This Agreement shall be governed by the laws\nof the State of Delaware, without reference to conflict of laws principles. Each Party agrees that it shall bring any action or proceeding in respect\nto any claim arising out of or related to this Agreement exclusively in the courts of the State of Delaware and the Federal Courts of the United\nStates of America located in the State of Delaware and irrevocably submits to the exclusive jurisdiction of such courts. This document contains the\nentire agreement among the Parties with respect to the subject matter hereof (it being agreed and acknowledged by the Parties that each of the\nexisting Non-Disclosure Agreements between TESARO and GSK (on the one hand), and TESARO and ABPS (on the other hand) shall remain in\nfull force and effect without alteration by this Agreement). Any failure to enforce any provision of this Agreement shall not constitute a waiver of\nsuch provision or of any other provision. Disclosing Party shall have, in addition to any remedies available at law, the right to seek equitable relief\nto enforce this Agreement without the need for a bond or to prove harm. This Agreement may not be amended, nor any obligation waived, except\nby a written document signed by each of the Parties.\n[Signatures on next page]\nTESARO 3-WAY NDA V1 Page 3 of 4\nEXECUTION VERSION\nCONFIDENTIAL\nIN WITNESS WHEREOF, the Parties have executed this Agreement as of the date and year written above. TESARO, INC.\nBy: /s/ William Aitchison\nName: William Aitchison\nTitle: SVP, Tech BPS\nAJINOMOTO ALTHEA, INC. DBA\nAjinomoto Bio-Pharma Services\nBy: Digitally signed by Craig W. Logan\nDate: 2018.11.15 10:54:22-08°00°\nName: Craig W. Logan\nTitle: VP Finance & CFO\nTESARO 3-WAY NDA V1\nGLAXOSMITHKLINE LLC\nBy: /s/ Walter CP Plunkett\nName: Walter CP Plunkett\nTitle: Director Scientific Licensing\nPage 4 of 4 EX-99.(D)(5) 11 1651999dex99d5.htm EX-(D)(5)\nExhibit (d)(5)\nEXECUTION VERSION\nCONFIDENTIAL\n3-WAY NON-DISCLOSURE AGREEMENT\nThis 3-WAY NON-DISCLOSURE AGREEMENT is made and entered into as of this 15th day of November, 2018 (the "Effective Date"), among\nTESARO, Inc. ("TESARO"), located at 1000 Winter Street, Waltham, MA 02451, GlaxoSmithKline LLC, located at 1250 South Collegeville Road,\nCollegeville, PA 19426 ("GSK"), and Ajinomoto Althea, Inc.DBA Ajinomoto Bio-Pharma Services("AB located at 11040 Roselle Street, San\nDiego, CA 92121 ("APBS"). TESARO, GSK and Althea may be referred to, collectively, in this Agreement as the "Parties", and, individually, as a\n"Party"\n1.\nPurpose. TESARO and GSK are in discussions concerning a potential co-development collaboration for one or more of TESARO'S biologic\nproduct candidates, for which Althea performs sterile cGMP fill/finish services, and in connection therewith, GSK has requested to engage in\nbackground due diligence with Althea in regard to such sterile cGMP fill/finish services (the "Stated Purpose"). In connection with such due\ndiligence discussions, the Disclosing Party, may disclose or make available to the Receiving Party certain information which the Disclosing Party\ndesires the Receiving Party treat as confidential.\n2.\nDefinition. "Confidential Information" means all information and materials of a confidential, secret or proprietary nature disclosed by or on\nbehalf\nof\none\nParty\n(a\n"Disclosing\nParty")\nto\nanother\nParty\n(a\n"Receiving\nParty"),\neither\ndirectly\nor\nindirectly,\nin\nwriting,\norally\nor\nby\ninspection\nof tangible objects, including, without limitation, information and materials regarding technology, products, product candidates, research and\ndevelopment activities, results, compound designs or structures, manufacturing or other processes or methods, know-how, inventions or other\nintellectual property, the existence or content of licenses, the existence, status or content of licensing or collaboration negotiations, other\nagreements with third parties, information regarding facilities and financial and other business information, in each case whether or not identified\nor marked as "confidential" and including all documents, presentations, information, reports, materials, evaluations and copies to the extent\nincorporating or generated from any of the foregoing. Disclosing Party's Confidential Information may also include information obtained by\nDisclosing Party from its collaborators, customers, suppliers, vendors and other third parties who have entrusted their confidential information to\nDisclosing Party.\nConfidential Information shall not, however, include any information which the Receiving Party can establish by written record: (i) was publicly\nknown and available in the public domain prior to the time of disclosure by Disclosing Party to Receiving Party; (ii) becomes publicly known and\navailable after disclosure by Disclosing Party to Receiving Party through no action or inaction of Receiving Party or any of Receiving Party's\nagents or employees; (iii) was already in possession of Receiving Party, as evidenced by Receiving Party's contemporaneous records, immediately\nprior to the time of disclosure to Receiving Party by Disclosing Party; (iv) is obtained by Receiving Party from a third party who has a right to\ndisclose such information free of any obligation of confidentiality and who did not derive the information from Disclosing Party; and (v) is\nindependently developed by Receiving Party without use of, or reference to, information provided by Disclosing Party as evidenced by Receiving\nParty's contemporaneous records and other than under an agreement with the Disclosing Party.\n3.\nNon-Use\nand\nNon-Disclosure\nof\nConfidential\nInformation.\nReceiving\nParty\nagrees\nnot\nto\nuse\nany\nConfidential\nInformation\nof\nDisclosing\nParty\nfor any purpose other than the Stated Purpose or as otherwise approved in writing by Disclosing Party. Receiving Party agrees not to disclose any\nConfidential Information of Disclosing Party to any third party or to Receiving Party's employees, except to those officers, employees, affiliates,\nagents or consultants ("Representatives") of Receiving Party who have a specific need to know such information in\nTESARO 3-WAY NDA V1\nPage 1 of 4\nEXECUTION VERSION\nCONFIDENTIAL\norder to advise Receiving Party for the Stated Purpose and who are bound by written obligations of confidentiality and restrictions on use that\ncover such Confidential Information and are at least as stringent as those set forth in this Agreement.\n4.\nDisclosure Required by Law. Notwithstanding anything in this Agreement to the contrary, Receiving Party may disclose Confidential\nInformation of Disclosing Party to the extent required by applicable law, including pursuant to a subpoena or other court or administrative order,\nprovided that Receiving Party gives Disclosing Party prompt written notice of such requirement prior to such disclosure and cooperates with\nDisclosing Party's efforts to limit the scope of the information to be provided or to obtain an order protecting the information from public\ndisclosure.\n5.\nMaintenance of Confidentiality.. Receiving Party agrees that it shall take all reasonable measures to protect the secrecy of and avoid disclosure\nand unauthorized use of the Confidential Information of the Disclosing Party but such measures shall be no less than a reasonable degree of care.\nWithout the prior written consent of Disclosing Party, Receiving Party shall not disclose to any person, other that its Represenatives, (i) that any\ninvestigations, discussions or negotiations are taking place concering the Stated Purpose, (ii) that Receiving Party or its Representatives have\nrequested or received any Confidential Information, or (iii) any of the terms, conditions or other facts with respect to the Stated Purpose or such\ninvestigations, discussons or negotiations, including the status thereof.\n6.\nNo Obligation. Disclosing Party may at any time cease to make further disclosure of its Confidential Information, and Receiving Party may refuse\nto accept further disclosure of Disclosing Party's Confidential Information. Nothing in this Agreement shall obligate either Party to proceed with\nany transaction between them, and each Party reserves the right, in such Party's sole discretion, to terminate the discussions contemplated by this\nAgreement concerning the Stated Purpose.\n7. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS". NEITHER PARTY MAKES ANY WARRANTIES,\nEXPRESS, IMPLIED OR OTHERWISE, TO THE OTHER PARTY REGARDING THE ACCURACY, COMPLETENESS OR\nPERFORMANCE OF CONFIDENTIAL INFORMATION DISCLOSED UNDER THIS AGREEMENT EXCEPT THAT IT HAS THE RIGHT\nTO DISCLOSE SUCH CONFIDENTIAL INFORMATION.\n8.\nReturn of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed or\nprovided to Receiving Party by or on behalf of Disclosing Party, and all copies of such Confidential Information, which are in the possession of\nReceiving Party, shall be and remain the property of Disclosing Party and shall be promptly returned to Disclosing Party or destroyed, as requested\nand directed in writing by Disclosing Party, and any memoranda, notes, reports and the like generated by Receiving Party with respect to such\nConfidential Information shall be destroyed upon Disclosing Party's written request with confirmation of such destruction provided to Disclosing\nParty; provided that (i) Receiving Party may retain one copy of such Confidential Information solely for purposes of ensuring compliance with\nthis Agreement and (ii) Receiving Party shall not be obligated to return or destroy automatically created electronic copies stored on system\nback-up tapes.\n9.\nNo\nLicenses. Nothing in this Agreement is intended to grant any rights or license to Receiving Party under any patent, copyright,\ntrade\nsecret\nor\nother intellectual property rights of Disclosing Party, nor shall this Agreement or the disclosure of Confidential Information be deemed to grant to\nReceiving Party any rights or licenses in or to the Confidential Information of Disclosing Party except as expressly set forth in this Agreement.\nTESARO 3-WAY NDA V1\nPage 2 of 4\nEXECUTION VERSION\nCONFIDENTIAL\n10. Independent Activities. Disclosing Party understands and acknowledges that prior to the Effective Date, Receiving Party may have in the past, or\nis currently, either internally or with a third party, engaged in research, development and commercialization activities relating to the subject matter\nof\nDisclosing Party's Confidential Information. Accordingly, Disclosing Party acknowledges and agrees that nothing in this Agreement will be\nconstrued by implication or otherwise as preventing Receiving Party, during the term of this Agreement or thereafter, from (i) either internally or\nwith a third party, engaging in research, development and commercialization activities relating to the subject matter of Disclosing Party's\nConfidential Information, and (ii) evaluating such programs, compounds and capabilities of third parties relating to the subject matter of\nDisclosing Party's Confidential Information, provided, that in each case of (i) and (ii), Receiving Party does not reference and does not use\nDisclosing Party's Confidential Information disclosed under this Agreement in connection therewith.\n11.\nTerm. This Agreement shall continue until the second anniversary of the Effective Date. Any Party may terminate this Agreement by providing\nwritten notice to the other Parties; provided, however, that the obligations of Receiving Party under this Agreement with regard to non-disclosure\nand restrictions on use of Confidential Information disclosed prior to such early termination shall not be altered by any such early termination and\nshall continue in effect for a period ending five (5) years after such expiration or termination.\n12. Miscellaneous. This Agreement shall bind and inure to the benefit of the Parties hereto and their successors and permitted assignees. This\nAgreement may not be assigned by either Party without the prior written consent of the other Party, except that a Party may assign this Agreement\nin connection with the sale of all, or substantially all, of the assets to which this Agreement relates. This Agreement shall be governed by the laws\nof the State of Delaware, without reference to conflict of laws principles. Each Party agrees that it shall bring any action or proceeding in respect\nto any claim arising out of or related to this Agreement exclusively in the courts of the State of Delaware and the Federal Courts of the United\nStates of America located in the State of Delaware and irrevocably submits to the exclusive jurisdiction of such courts. This document contains\nthe\nentire agreement among the Parties with respect to the subject matter hereof (it being agreed and acknowledged by the Parties that each of the\nexisting Non-Disclosure Agreements between TESARO and GSK (on the one hand), and TESARO and ABPS (on the other hand) shall remain in\nfull force and effect without alteration by this Agreement). Any failure to enforce any provision of this Agreement shall not constitute a waiver\nof\nsuch provision or of any other provision Disclosing Party shall have, in addition to any remedies available at law, the right to seek equitable relief\nto enforce this Agreement without the need for a bond or to prove harm. This Agreement may not be amended, nor any obligation waived, except\nby a written document signed by each of the Parties.\n[Signatures on next page]\nTESARO 3-WAY NDA V1\nPage 3 of 4\nEXECUTION VERSION\nCONFIDENTIAL\nIN WITNESS WHEREOF, the Parties have executed this Agreement as of the date and year written above.\nTESARO, INC.\nGLAXOSMITHKLINE LLC\nBy:\n/s/ William Aitchison\nBy:\n/s/ Walter CP Plunkett\nName: William Aitchison\nName: Walter CP Plunkett\nTitle: SVP, Tech BPS\nTitle: Director Scientific Licensing\nAJINOMOTO ALTHEA, INC. DBA\nAjinomoto Bio-Pharma Services\nBy:\nDigitally signed by Craig W. Logan\nDate: 2018.11.15 10:54:22-08'00'\nName: Craig W. Logan\nTitle: VP Finance & CFO\nTESARO 3-WAY NDA V1\nPage 4 of 4 EX-99.(D)(5) 11 d651999dex99d5.htm EX-(D)(5)\nExhibit (d)(5)\nEXECUTION VERSION\nCONFIDENTIAL\n3-WAY NON-DISCLOSURE AGREEMENT\nThis 3-WAY NON-DISCLOSURE AGREEMENT is made and entered into as of this 15th day of November, 2018 (the “Effective Date”), among\nTESARO, Inc. (“TESARO”), located at 1000 Winter Street, Waltham, MA 02451, GlaxoSmithKline LLC, located at 1250 South Collegeville Road,\nCollegeville, PA 19426 (“GSK”), and Ajinomoto Althea, Inc.DBA Ajinomoto Bio-Pharma Services(“ABPS”), located at 11040 Roselle Street, San\nDiego, CA 92121 (“APBS”). TESARO, GSK and Althea may be referred to, collectively, in this Agreement as the “Parties”, and, individually, as a\n“Party”.\n1. Purpose. TESARO and GSK are in discussions concerning a potential co-development collaboration for one or more of TESARO’s biologic\nproduct candidates, for which Althea performs sterile cGMP fill/finish services, and in connection therewith, GSK has requested to engage in\nbackground due diligence with Althea in regard to such sterile cGMP fill/finish services (the “Stated Purpose”). In connection with such due\ndiligence discussions, the Disclosing Party, may disclose or make available to the Receiving Party certain information which the Disclosing Party\ndesires the Receiving Party treat as confidential.\n2. Definition. “Confidential Information” means all information and materials of a confidential, secret or proprietary nature disclosed by or on\nbehalf of one Party (a “Disclosing Party”) to another Party (a “Receiving Party”), either directly or indirectly, in writing, orally or by inspection\nof tangible objects, including, without limitation, information and materials regarding technology, products, product candidates, research and\ndevelopment activities, results, compound designs or structures, manufacturing or other processes or methods, know-how, inventions or other\nintellectual property, the existence or content of licenses, the existence, status or content of licensing or collaboration negotiations, other\nagreements with third parties, information regarding facilities and financial and other business information, in each case whether or not identified\nor marked as “confidential” and including all documents, presentations, information, reports, materials, evaluations and copies to the extent\nincorporating or generated from any of the foregoing. Disclosing Party’s Confidential Information may also include information obtained by\nDisclosing Party from its collaborators, customers, suppliers, vendors and other third parties who have entrusted their confidential information to\nDisclosing Party.\nConfidential Information shall not, however, include any information which the Receiving Party can establish by written record: (i) was publicly\nknown and available in the public domain prior to the time of disclosure by Disclosing Party to Receiving Party; (ii) becomes publicly known and\navailable after disclosure by Disclosing Party to Receiving Party through no action or inaction of Receiving Party or any of Receiving Party’s\nagents or employees; (iii) was already in possession of Receiving Party, as evidenced by Receiving Party’s contemporaneous records, immediately\nprior to the time of disclosure to Receiving Party by Disclosing Party; (iv) is obtained by Receiving Party from a third party who has a right to\ndisclose such information free of any obligation of confidentiality and who did not derive the information from Disclosing Party; and (v) is\nindependently developed by Receiving Party without use of, or reference to, information provided by Disclosing Party as evidenced by Receiving\nParty’s contemporaneous records and other than under an agreement with the Disclosing Party.\n3. Non-Use and Non-Disclosure of Confidential Information. Receiving Party agrees not to use any Confidential Information of Disclosing Party\nfor any purpose other than the Stated Purpose or as otherwise approved in writing by Disclosing Party. Receiving Party agrees not to disclose any\nConfidential Information of Disclosing Party to any third party or to Receiving Party’s employees, except to those officers, employees, affiliates,\nagents or consultants (“Representatives”) of Receiving Party who have a specific need to know such information in\nTESARO 3-WAY NDA V1\nPage1of4\nEXECUTION VERSION\nCONFIDENTIAL\norder to advise Receiving Party for the Stated Purpose and who are bound by written obligations of confidentiality and restrictions on use that\ncover such Confidential Information and are at least as stringent as those set forth in this Agreement.\n4. Disclosure Required by Law. Notwithstanding anything in this Agreement to the contrary, Receiving Party may disclose Confidential\nInformation of Disclosing Party to the extent required by applicable law, including pursuant to a subpoena or other court or administrative order,\nprovided that Receiving Party gives Disclosing Party prompt written notice of such requirement prior to such disclosure and cooperates with\nDisclosing Party’s efforts to limit the scope of the information to be provided or to obtain an order protecting the information from public\ndisclosure.\n5. Maintenance of Confidentiality. Receiving Party agrees that it shall take all reasonable measures to protect the secrecy of and avoid disclosure\nand unauthorized use of the Confidential Information of the Disclosing Party but such measures shall be no less than a reasonable degree of care.\nWithout the prior written consent of Disclosing Party, Receiving Party shall not disclose to any person, other that its Represenatives, (i) that any\ninvestigations, discussions or negotiations are taking place concering the Stated Purpose, (ii) that Receiving Party or its Representatives have\nrequested or received any Confidential Information, or (iii) any of the terms, conditions or other facts with respect to the Stated Purpose or such\ninvestigations, discussons or negotiations, including the status thereof.\n6. No Obligation. Disclosing Party may at any time cease to make further disclosure of its Confidential Information, and Receiving Party may refuse\nto accept further disclosure of Disclosing Party’s Confidential Information. Nothing in this Agreement shall obligate either Party to proceed with\nany transaction between them, and each Party reserves the right, in such Party’s sole discretion, to terminate the discussions contemplated by this\nAgreement concerning the Stated Purpose.\n7. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. NEITHER PARTY MAKES ANY WARRANTIES,\nEXPRESS, IMPLIED OR OTHERWISE, TO THE OTHER PARTY REGARDING THE ACCURACY, COMPLETENESS OR\nPERFORMANCE OF CONFIDENTIAL INFORMATION DISCLOSED UNDER THIS AGREEMENT EXCEPT THAT IT HAS THE RIGHT\nTO DISCLOSE SUCH CONFIDENTIAL INFORMATION.\n8. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed or\nprovided to Receiving Party by or on behalf of Disclosing Party, and all copies of such Confidential Information, which are in the possession of\nReceiving Party, shall be and remain the property of Disclosing Party and shall be promptly returned to Disclosing Party or destroyed, as requested\nand directed in writing by Disclosing Party, and any memoranda, notes, reports and the like generated by Receiving Party with respect to such\nConfidential Information shall be destroyed upon Disclosing Party’s written request with confirmation of such destruction provided to Disclosing\nParty; provided that (i) Receiving Party may retain one copy of such Confidential Information solely for purposes of ensuring compliance with\nthis Agreement and (ii) Receiving Party shall not be obligated to return or destroy automatically created electronic copies stored on system\nback-up tapes.\n9. No Licenses. Nothing in this Agreement is intended to grant any rights or license to Receiving Party under any patent, copyright, trade secret or\nother intellectual property rights of Disclosing Party, nor shall this Agreement or the disclosure of Confidential Information be deemed to grant to\nReceiving Party any rights or licenses in or to the Confidential Information of Disclosing Party except as expressly set forth in this Agreement.\nTESARO 3-WAY NDA V1\nPage2of4\nEXECUTION VERSION\nCONFIDENTIAL\n10. Independent Activities. Disclosing Party understands and acknowledges that prior to the Effective Date, Receiving Party may have in the past, or\nis currently, either internally or with a third party, engaged in research, development and commercialization activities relating to the subject matter\nof Disclosing Party’s Confidential Information. Accordingly, Disclosing Party acknowledges and agrees that nothing in this Agreement will be\nconstrued by implication or otherwise as preventing Receiving Party, during the term of this Agreement or thereafter, from (i) either internally or\nwith a third party, engaging in research, development and commercialization activities relating to the subject matter of Disclosing Party’s\nConfidential Information, and (ii) evaluating such programs, compounds and capabilities of third parties relating to the subject matter of\nDisclosing Party’s Confidential Information, provided, that in each case of (i) and (ii), Receiving Party does not reference and does not use\nDisclosing Party’s Confidential Information disclosed under this Agreement in connection therewith.\n11. Term. This Agreement shall continue until the second anniversary of the Effective Date. Any Party may terminate this Agreement by providing\nwritten notice to the other Parties; provided, however, that the obligations of Receiving Party under this Agreement with regard to non-disclosure\nand restrictions on use of Confidential Information disclosed prior to such early termination shall not be altered by any such early termination and\nshall continue in effect for a period ending five (5) years after such expiration or termination.\n12. Miscellaneous. This Agreement shall bind and inure to the benefit of the Parties hereto and their successors and permitted assignees. This\nAgreement may not be assigned by either Party without the prior written consent of the other Party, except that a Party may assign this Agreement\nin connection with the sale of all, or substantially all, of the assets to which this Agreement relates. This Agreement shall be governed by the laws\nof the State of Delaware, without reference to conflict of laws principles. Each Party agrees that it shall bring any action or proceeding in respect\nto any claim arising out of or related to this Agreement exclusively in the courts of the State of Delaware and the Federal Courts of the United\nStates of America located in the State of Delaware and irrevocably submits to the exclusive jurisdiction of such courts. This document contains the\nentire agreement among the Parties with respect to the subject matter hereof (it being agreed and acknowledged by the Parties that each of the\nexisting Non-Disclosure Agreements between TESARO and GSK (on the one hand), and TESARO and ABPS (on the other hand) shall remain in\nfull force and effect without alteration by this Agreement). Any failure to enforce any provision of this Agreement shall not constitute a waiver of\nsuch provision or of any other provision. Disclosing Party shall have, in addition to any remedies available at law, the right to seek equitable relief\nto enforce this Agreement without the need for a bond or to prove harm. This Agreement may not be amended, nor any obligation waived, except\nby a written document signed by each of the Parties.\n[Signatures on next page]\nTESARO 3-WAY NDA V1\nPage3of4\nEXECUTION VERSION\nCONFIDENTIAL\nIN WITNESS WHEREOF, the Parties have executed this Agreement as of the date and year written above.\nTESARO, INC.\nGLAXOSMITHKLINE LLC\nBy: /s/ William Aitchison\nBy: /s/ Walter CP Plunkett\nName: William Aitchison\nName: Walter CP Plunkett\nTitle: SVP, Tech BPS\nTitle: Director Scientific Licensing\nAJINOMOTO ALTHEA, INC. DBA\nAjinomoto Bio-Pharma Services\nBy: Digitally signed by Craig W. Logan\nDate: 2018.11.15 10:54:22-08’00’\nName: Craig W. Logan\nTitle: VP Finance & CFO\nTESARO 3-WAY NDA V1\nPage4of4 2b5702dbae143d75275161125a65cf81.pdf effective_date jurisdiction party term EX-99.(E)(10) 3 d473134dex99e10.htm CONFIDENTIALITY AGREEMENT\nExhibit(e)(10)\nDecember 17, 2012\nAllergan, Inc.\n2525 Dupont Drive\nIrvine, CA 92612-1599\nAttention: David M. Lawrence\nRe: Confidentiality Agreement\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction with or involving (a “Possible\nTransaction”) MAP Pharmaceuticals, Inc. and/or its subsidiaries, affiliates or divisions (collectively, with such\nsubsidiaries, affiliates and divisions, the “Company”), the Company is prepared to make available to you and your\nRepresentatives (as hereinafter defined) certain information concerning the business, products, markets, condition\n(financial or other), operations, assets, liabilities, results of operations, cash flows and prospects of the Company. As a\ncondition to such information being furnished to you and your Representatives, you agree that you shall, and shall cause\nyour Representatives to, treat the Evaluation Material (as hereinafter defined) in accordance with the provisions of this\nletter agreement and take or abstain from taking certain other actions as set forth herein. The term “Representatives”\nshall include your officers, directors, employees, outside legal counsel, accountants, agents and financial advisors, and\n(ii) with respect to the Company, shall include its officers, directors, employees, outside legal counsel, accountants,\nagents and financial advisors. Notwithstanding any other provision hereof, the Company reserves the right not to make\navailable hereunder any information, the provision of which is determined by it, in its sole discretion, to be inadvisable\nor inappropriate.\n1. Evaluation Material. The term “Evaluation Material” shall mean all information relating,\ndirectly or indirectly, to the Company or the business, products, markets, condition (financial or other), operations,\nassets, liabilities, results of operations, cash flows or prospects of the Company (whether prepared by the Company, its\nadvisors or otherwise) which is delivered, disclosed or furnished by or on behalf of the Company to you or to your\nRepresentatives, before, on or after the date hereof, regardless of the manner in which it is delivered, disclosed or\nfurnished, and shall be deemed to include all notes, analyses, compilations, studies, forecasts, interpretations or other\ndocuments prepared by you or your Representatives that contain, reflect or are based upon, in whole or in part, the\ninformation delivered, disclosed or furnished to you or your Representatives pursuant hereto. Notwithstanding any other\nprovision hereof, the term Evaluation Material shall not include information which (i) is or becomes generally available\nto the public other than as a result of a disclosure by you or your Representatives, (ii) was within your possession on a\nnon-confidential basis prior to it being furnished to you by or on behalf of the Company pursuant hereto, provided that\nthe source of such information was not known by you to be bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such information,\n(iii) becomes available to you on a non-confidential basis from a source other than the Company or any of its\nRepresentatives, provided that such source is not known by you to be bound by a confidentiality agreement with, or\nother\ncontractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such information, or (iv) was\nindependently developed by you prior to or after the date of disclosure.\n2. Use and Disclosure of Evaluation Material. You recognize and acknowledge the competitive\nvalue and confidential nature of the Evaluation Material and the damage that could result to the Company if any\ninformation contained therein is disclosed to a third party. You hereby agree that you and your Representatives shall use\nthe Evaluation Material solely for the purpose of evaluating a Possible Transaction and for no other purpose, that the\nEvaluation Material will be kept confidential and that you and your Representatives will not disclose any of the\nEvaluation Material in any manner whatsoever; provided, however, that (i) you may make any disclosure of the\nEvaluation Material to which the Company gives its prior written consent and (ii) any of the Evaluation Material may be\ndisclosed to your Representatives who need to know such information for the purpose of evaluating a Possible\nTransaction. In any event, you agree to undertake reasonable precautions to safeguard and protect the confidentiality of\nthe Evaluation Material using the same level of care you use to safeguard and protect the confidentiality of your own\nconfidential information and to accept responsibility for any breach of this letter agreement by you or any of your\nRepresentatives.\nIn addition, subject to the final paragraph of this Section 2, the parties agree that, without the prior\nwritten consent of the other party, each party and its Representatives will not disclose to any other person the fact that\nyou or your Representatives have received Evaluation Material or that Evaluation Material has been made available to\nyou or your Representatives, that investigations, discussions or negotiations are taking place concerning a Possible\nTransaction or any of the terms, conditions or other facts with respect to any Possible Transaction, including the status\nthereof and the identity of the parties thereto (collectively, the “Discussion Information”).\nSubject to the final paragraph of this Section 2, in the event that you or any of your Representatives are\nrequested or required (by law or regulation, including the federal securities laws, securities exchange listing rules, oral\nquestions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand or other similar legal process) to disclose any of the Evaluation Material or Discussion Information, you shall\nprovide the Company with prompt written notice of any such request or requirement so that the Company may in its sole\ndiscretion seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter\nagreement, and, if requested by the Company, you shall cooperate with the Company (at the Company’s expense) to\nobtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the\nEvaluation Material and the Discussion Information. If, in the absence of a protective order or other remedy or the\nreceipt of a waiver by the Company, you or any of your Representatives are nonetheless, on the advice of outside legal\ncounsel, legally compelled to disclose Evaluation Material or Discussion Information, you or your Representatives may,\nwithout liability hereunder, disclose only that portion of the Evaluation Material or Discussion information which such\ncounsel advises you is legally required to be disclosed, provided that you shall promptly notify the Company of (i) your\ndetermination to make such disclosure and (ii) the nature, scope and contents of such disclosure.\nDecember 17, 2012\nPage2of7\nNotwithstanding anything in this Section 2 to the contrary, in the event that you seek to acquire control\nof the Company pursuant to any tender or exchange offer or in connection with any proxy or consent solicitation\ninvolving the Company, then solely in such circumstances, (i) you may, without first having notified the Company of\nsuch impending disclosure, disclose any Discussion Information if you have been advised by outside legal counsel that\ndisclosure of such Discussion Information is required to be made by applicable law or regulation (including the federal\nsecurities laws, securities exchange listing rules, oral questions, interrogatories, requests for information or documents in\nlegal proceedings, subpoena, civil investigative demand or other similar legal process) and (ii) you shall not be required\nto cooperate with the Company to obtain any protective order or other reliable assurance that confidential treatment will\nbe accorded any Evaluation Material or Discussion Information.\n3.\nReturn and Destruction of Evaluation Material. In the event that you decide not to proceed with\na Possible Transaction, you will promptly inform the Company of that decision. In that case, or at any time upon the\nrequest of the Company in its sole discretion and for any reason, you will as directed by the Company promptly deliver,\nat your expense, to the Company or destroy all Evaluation Material (and any copies thereof) furnished to you or your\nRepresentatives by or on behalf of the Company pursuant hereto. In the event of such a decision or request, all other\nEvaluation Material prepared by you or on your behalf shall be destroyed, and, upon the Company’s request, you shall\nprovide the Company with prompt written confirmation of your compliance with this paragraph; provided, however, that\none copy of all Evaluation Material may be kept by your outside counsel for archival purposes only. Notwithstanding the\nreturn or destruction of the Evaluation Material, you and your Representatives shall continue to be bound by your\nobligations of confidentiality and other obligations and agreements hereunder.\n4. No Representations or Warranties. You understand, acknowledge and agree that neither the\nCompany nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or\ncompleteness of the Evaluation Material. You agree that neither the Company nor any of its Representatives shall have\nany liability to you or to any of your Representatives relating to or resulting from the use of the Evaluation Material or\nany errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive\nagreement regarding any transactions contemplated hereby, when, as and if executed and delivered, and subject to such\nlimitations and restrictions as may be specified therein, will have any legal effect.\n5. No Solicitation. In consideration of the Evaluation Material being furnished to you, you hereby\nagree that, for a period of one (1) year from the date hereof, neither you nor any of your controlled affiliates or controlled\nRepresentatives (nor any person acting on behalf of or in concert with you or any of your controlled affiliates or\ncontrolled Representatives) will, without the prior written consent of the Company, directly or indirectly, solicit to\nemploy any of the officers or employees of the Company (i) with whom you have had contact during your evaluation of\na Possible Transaction or (ii) who were specifically identified to you by the Company or any of its Representatives\nduring your evaluation of a Possible Transaction. The restrictions of this paragraph shall not apply to any newspaper or\nInternet help wanted\nDecember 17, 2012\nPage3of7\nadvertisement, or any search firm engagement which, in any such case, is not specifically directed or focused on\npersonnel employed by the Company.\n6. Material Non-Public Information. Each party acknowledges and agrees that it is aware (and that\nits respective Representatives are aware or, upon receipt of any Evaluation Information or Discussion Information, will\nbe advised by such party) that (i) the Evaluation Material being furnished to you or your Representatives contains\nmaterial, non-public information regarding the Company and (ii) the United States securities laws prohibit any persons\nwho have material, nonpublic information concerning the matters which are the subject of this letter agreement,\nincluding the Discussion Information, from purchasing or selling securities of a company which may be a party to a\ntransaction of the type contemplated by this letter agreement or from communicating such information to any person\nunder circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities in\nreliance upon such information.\n7. No Agreement. The parties understand and agree that no contract or agreement providing for\nany Possible Transaction shall be deemed to exist between you and the Company unless and until a final definitive\nagreement has been executed and delivered. The parties also agree that unless and until a final definitive agreement\nregarding a Possible Transaction has been executed and delivered, neither party will be under any legal obligation of any\nkind whatsoever with respect to such a Possible Transaction by virtue of this letter agreement except for the matters\nspecifically agreed to herein. You acknowledge and agree that the Company reserves the right, in its sole discretion, to\nreject any and all proposals made by you or any of your Representatives with regard to a Possible Transaction, to\ndetermine not to engage in discussions or negotiations and to terminate discussions and negotiations with you at any\ntime, and to conduct, directly or through any of its Representatives, any process for any transaction involving the\nCompany or any of its subsidiaries, if and as they in their sole discretion shall determine (including, without limitation,\nnegotiating with any other interested parties and entering into a definitive agreement without prior notice to you or any\nother person).\n8. No Waiver of Rights. It is understood and agreed that no failure or delay by the parties in\nexercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial\nexercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder.\n9. Remedies. It is understood and agreed that money damages would not be an adequate remedy\nfor any breach of this letter agreement by either party or any of its respective Representatives and that the non-breaching\nparty shall be entitled to equitable relief, including, without limitation, injunction and specific performance, as a remedy\nfor any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this letter agreement\nbut shall be in addition to all other remedies available at law or equity to the non-breaching party. The parties further\nagree not to raise as a defense or objection to the request or granting of such relief that any breach of this letter\nagreement is or would be compensable by an award of money damages, and the parties agree to waive any requirements\nfor the securing or posting of any bond in connection with such remedy.\nDecember 17, 2012\nPage4of7\n10. Governing Law. This letter agreement is for the benefit of the parties (and their respective\nsubsidiaries and affiliates) and their respective Representatives, and shall be governed by and construed in accordance\nwith the laws of the State of Delaware applicable to agreements made and to be performed entirely within the State of\nDelaware, without regard to the conflict of law provisions thereof that would result in the application of the laws of any\nother jurisdiction. The parties hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of\nany state or federal court located in the State of Delaware for any actions, suits or proceedings arising out of or relating\nto this letter agreement and the transactions contemplated hereby (and the parties agree not to commence any action, suit\nor proceeding relating thereto except in such courts, and further agree that service of any process, summons, notice or\ndocument by U.S . registered mail to the address of the party’s principal executive offices shall be effective service of\nprocess for any action, suit or proceeding brought against such party in any such court). The parties hereby irrevocably\nand unconditionally waive any objection which they may now or hereafter have to the laying of venue of any action, suit\nor proceeding arising out of this letter agreement or the transactions contemplated hereby in any state or federal court in\nthe State of Delaware, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any\nsuch court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n11. Entire Agreement. This letter agreement contains the entire agreement between you and the\nCompany regarding its subject matter and supersedes all prior agreements, understandings, arrangements and discussions\nbetween you and the Company regarding such subject matter, including, without limitation, the parties’ Confidential\nDisclosure Agreement dated as of October 27, 2009 and the parties’ Project Ski Slope Confidentiality Agreement dated\nas of January 10, 2011, and any “clickthrough” agreement relating to the confidentiality of the Evaluation Material\nagreed to by you in connection with your access to any data site maintained in connection with a Possible Transaction.\n12. No Modification. No provision in this letter agreement can be waived, modified or amended\nexcept by written consent of you and the Company, which consent shall specifically refer to the provision to be waived,\nmodified or amended and shall explicitly make such waiver, modification or amendment.\n13. Counterparts. This letter agreement may be signed by facsimile and in one or more\ncounterparts, each of which shall be deemed an original but all of which shall be deemed to constitute a single\ninstrument.\n14. Severability. If any provision of this letter agreement is found to violate any statute,\nregulation, rule, order or decree of any governmental authority, court, agency or exchange, such invalidity shall not be\ndeemed to affect any other provision hereof or the validity of the remainder of this letter agreement, and such invalid\nprovision shall be deemed deleted herefrom to the minimum extent necessary to cure such violation.\n15. Assignment. This letter agreement shall be binding on and inure to the benefit of the\nsuccessors and assigns of the parties hereto, but neither of the parties may assign this letter agreement without the prior\nwritten consent of the other party; provided, however, either party may assign this letter agreement in whole or in part to\nany affiliate or subsidiary without consent of the other party.\nDecember 17, 2012\nPage5of7\n16. Successors. This letter agreement shall inure to the benefit of, and be enforceable by, the\nCompany and its successors and assigns.\n17. Term. This letter agreement will terminate two (2) years from the date hereof.\nDecember 17, 2012\nPage6of7\nPlease confirm your agreement with the foregoing by having a duly authorized officer sign and return\none copy of this letter to the undersigned, whereupon this letter agreement shall become a binding agreement among you\nand the Company.\nVery truly yours,\nMAP Pharmaceuticals, Inc.\nBy: /s/ Timothy S. Nelson\nName: Timothy S. Nelson\nTitle: President and CEO\nCONFIRMED AND AGREED\nas of the date written above:\nAllergan, Inc.\nBy: /s/ David M. Lawrence\nName: David M. Lawrence\nTitle: Sr. Vice President, Corporate Development\nDecember 17, 2012\nPage7of7 EX-99.(E)(10) 3 d473134dex99¢10.htm CONFIDENTIALITY AGREEMENT\nExhibit(e)(10)\nDecember 17, 2012\nAllergan, Inc.\n2525 Dupont Drive\nIrvine, CA 92612-1599\nAttention: David M. Lawrence\nRe: Confidentiality Agreement\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction with or involving (a “Possible\nTransaction”) MAP Pharmaceuticals, Inc. and/or its subsidiaries, affiliates or divisions (collectively, with such\nsubsidiaries, affiliates and divisions, the “Company”), the Company is prepared to make available to you and your\nRepresentatives (as hereinafter defined) certain information concerning the business, products, markets, condition\n(financial or other), operations, assets, liabilities, results of operations, cash flows and prospects of the Company. As a\ncondition to such information being furnished to you and your Representatives, you agree that you shall, and shall cause\nyour Representatives to, treat the Evaluation Material (as hereinafter defined) in accordance with the provisions of this\nletter agreement and take or abstain from taking certain other actions as set forth herein. The term “Representatives”\nshall include your officers, directors, employees, outside legal counsel, accountants, agents and financial advisors, and\n(ii) with respect to the Company, shall include its officers, directors, employees, outside legal counsel, accountants,\nagents and financial advisors. Notwithstanding any other provision hereof, the Company reserves the right not to make\navailable hereunder any information, the provision of which is determined by it, in its sole discretion, to be inadvisable\nor inappropriate.\n1. Evaluation Material. The term “Evaluation Material” shall mean all information relating,\ndirectly or indirectly, to the Company or the business, products, markets, condition (financial or other), operations,\nassets, liabilities, results of operations, cash flows or prospects of the Company (whether prepared by the Company, its\nadvisors or otherwise) which is delivered, disclosed or furnished by or on behalf of the Company to you or to your\nRepresentatives, before, on or after the date hereof, regardless of the manner in which it is delivered, disclosed or\nfurnished, and shall be deemed to include all notes, analyses, compilations, studies, forecasts, interpretations or other\ndocuments prepared by you or your Representatives that contain, reflect or are based upon, in whole or in part, the\ninformation delivered, disclosed or furnished to you or your Representatives pursuant hereto. Notwithstanding any other\nprovision hereof, the term Evaluation Material shall not include information which (i) is or becomes generally available\nto the public other than as a result of a disclosure by you or your Representatives, (ii) was within your possession on a\nnon-confidential basis prior to it being furnished to you by or on behalf of the Company pursuant hereto, provided that\nthe source of such information was not known by you to be bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such information,\n(iii) becomes available to you on a non-confidential basis from a source other than the Company or any of its\nRepresentatives, provided that such source is not known by you to be bound by a confidentiality agreement with, or\nother\ncontractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such information, or (iv) was\nindependently developed by you prior to or after the date of disclosure.\n2. Use and Disclosure of Evaluation Material. You recognize and acknowledge the competitive\nvalue and confidential nature of the Evaluation Material and the damage that could result to the Company if any\ninformation contained therein is disclosed to a third party. You hereby agree that you and your Representatives shall use\nthe Evaluation Material solely for the purpose of evaluating a Possible Transaction and for no other purpose, that the\nEvaluation Material will be kept confidential and that you and your Representatives will not disclose any of the\nEvaluation Material in any manner whatsoever; provided, however, that (i) you may make any disclosure of the\nEvaluation Material to which the Company gives its prior written consent and (ii) any of the Evaluation Material may be\ndisclosed to your Representatives who need to know such information for the purpose of evaluating a Possible\nTransaction. In any event, you agree to undertake reasonable precautions to safeguard and protect the confidentiality of\nthe Evaluation Material using the same level of care you use to safeguard and protect the confidentiality of your own\nconfidential information and to accept responsibility for any breach of this letter agreement by you or any of your\nRepresentatives.\nIn addition, subject to the final paragraph of this Section 2, the parties agree that, without the prior\nwritten consent of the other party, each party and its Representatives will not disclose to any other person the fact that\nyou or your Representatives have received Evaluation Material or that Evaluation Material has been made available to\nyou or your Representatives, that investigations, discussions or negotiations are taking place concerning a Possible\nTransaction or any of the terms, conditions or other facts with respect to any Possible Transaction, including the status\nthereof and the identity of the parties thereto (collectively, the “Discussion Information”).\nSubject to the final paragraph of this Section 2, in the event that you or any of your Representatives are\nrequested or required (by law or regulation, including the federal securities laws, securities exchange listing rules, oral\nquestions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand or other similar legal process) to disclose any of the Evaluation Material or Discussion Information, you shall\nprovide the Company with prompt written notice of any such request or requirement so that the Company may in its sole\ndiscretion seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter\nagreement, and, if requested by the Company, you shall cooperate with the Company (at the Company’s expense) to\nobtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the\nEvaluation Material and the Discussion Information. If, in the absence of a protective order or other remedy or the\nreceipt of a waiver by the Company, you or any of your Representatives are nonetheless, on the advice of outside legal\ncounsel, legally compelled to disclose Evaluation Material or Discussion Information, you or your Representatives may,\nwithout liability hereunder, disclose only that portion of the Evaluation Material or Discussion information which such\ncounsel advises you is legally required to be disclosed, provided that you shall promptly notify the Company of (i) your\ndetermination to make such disclosure and (ii) the nature, scope and contents of such disclosure.\nDecember 17, 2012\nPage 2 of 7\nNotwithstanding anything in this Section 2 to the contrary, in the event that you seek to acquire control\nof the Company pursuant to any tender or exchange offer or in connection with any proxy or consent solicitation\ninvolving the Company, then solely in such circumstances, (i) you may, without first having notified the Company of\nsuch impending disclosure, disclose any Discussion Information if you have been advised by outside legal counsel that\ndisclosure of such Discussion Information is required to be made by applicable law or regulation (including the federal\nsecurities laws, securities exchange listing rules, oral questions, interrogatories, requests for information or documents in\nlegal proceedings, subpoena, civil investigative demand or other similar legal process) and (ii) you shall not be required\nto cooperate with the Company to obtain any protective order or other reliable assurance that confidential treatment will\nbe accorded any Evaluation Material or Discussion Information.\n3. Return and Destruction of Evaluation Material. In the event that you decide not to proceed with\na Possible Transaction, you will promptly inform the Company of that decision. In that case, or at any time upon the\nrequest of the Company in its sole discretion and for any reason, you will as directed by the Company promptly deliver,\nat your expense, to the Company or destroy all Evaluation Material (and any copies thereof) furnished to you or your\nRepresentatives by or on behalf of the Company pursuant hereto. In the event of such a decision or request, all other\nEvaluation Material prepared by you or on your behalf shall be destroyed, and, upon the Company’s request, you shall\nprovide the Company with prompt written confirmation of your compliance with this paragraph; provided, however, that\none copy of all Evaluation Material may be kept by your outside counsel for archival purposes only. Notwithstanding the\nreturn or destruction of the Evaluation Material, you and your Representatives shall continue to be bound by your\nobligations of confidentiality and other obligations and agreements hereunder.\n4. No Representations or Warranties. You understand, acknowledge and agree that neither the\nCompany nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or\ncompleteness of the Evaluation Material. You agree that neither the Company nor any of its Representatives shall have\nany liability to you or to any of your Representatives relating to or resulting from the use of the Evaluation Material or\nany errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive\nagreement regarding any transactions contemplated hereby, when, as and if executed and delivered, and subject to such\nlimitations and restrictions as may be specified therein, will have any legal effect.\n5. No Solicitation. In consideration of the Evaluation Material being furnished to you, you hereby\nagree that, for a period of one (1) year from the date hereof, neither you nor any of your controlled affiliates or controlled\nRepresentatives (nor any person acting on behalf of or in concert with you or any of your controlled affiliates or\ncontrolled Representatives) will, without the prior written consent of the Company, directly or indirectly, solicit to\nemploy any of the officers or employees of the Company (i) with whom you have had contact during your evaluation of\na Possible Transaction or (ii) who were specifically identified to you by the Company or any of its Representatives\nduring your evaluation of a Possible Transaction. The restrictions of this paragraph shall not apply to any newspaper or\nInternet help wanted\nDecember 17, 2012\nPage 3 of 7\nadvertisement, or any search firm engagement which, in any such case, is not specifically directed or focused on\npersonnel employed by the Company.\n6. Material Non-Public Information. Each party acknowledges and agrees that it is aware (and that\nits respective Representatives are aware or, upon receipt of any Evaluation Information or Discussion Information, will\nbe advised by such party) that (i) the Evaluation Material being furnished to you or your Representatives contains\nmaterial, non-public information regarding the Company and (ii) the United States securities laws prohibit any persons\nwho have material, nonpublic information concerning the matters which are the subject of this letter agreement,\nincluding the Discussion Information, from purchasing or selling securities of a company which may be a party to a\ntransaction of the type contemplated by this letter agreement or from communicating such information to any person\nunder circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities in\nreliance upon such information.\n7. No Agreement. The parties understand and agree that no contract or agreement providing for\nany Possible Transaction shall be deemed to exist between you and the Company unless and until a final definitive\nagreement has been executed and delivered. The parties also agree that unless and until a final definitive agreement\nregarding a Possible Transaction has been executed and delivered, neither party will be under any legal obligation of any\nkind whatsoever with respect to such a Possible Transaction by virtue of this letter agreement except for the matters\nspecifically agreed to herein. You acknowledge and agree that the Company reserves the right, in its sole discretion, to\nreject any and all proposals made by you or any of your Representatives with regard to a Possible Transaction, to\ndetermine not to engage in discussions or negotiations and to terminate discussions and negotiations with you at any\ntime, and to conduct, directly or through any of its Representatives, any process for any transaction involving the\nCompany or any of its subsidiaries, if and as they in their sole discretion shall determine (including, without limitation,\nnegotiating with any other interested parties and entering into a definitive agreement without prior notice to you or any\nother person).\n8. No Waiver of Rights. It is understood and agreed that no failure or delay by the parties in\nexercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial\nexercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder.\n9. Remedies. It is understood and agreed that money damages would not be an adequate remedy\nfor any breach of this letter agreement by either party or any of its respective Representatives and that the non-breaching\nparty shall be entitled to equitable relief, including, without limitation, injunction and specific performance, as a remedy\nfor any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this letter agreement\nbut shall be in addition to all other remedies available at law or equity to the non-breaching party. The parties further\nagree not to raise as a defense or objection to the request or granting of such relief that any breach of this letter\nagreement is or would be compensable by an award of money damages, and the parties agree to waive any requirements\nfor the securing or posting of any bond in connection with such remedy.\nDecember 17, 2012\nPage 4 of 7\n10. Governing Law. This letter agreement is for the benefit of the parties (and their respective\nsubsidiaries and affiliates) and their respective Representatives, and shall be governed by and construed in accordance\nwith the laws of the State of Delaware applicable to agreements made and to be performed entirely within the State of\nDelaware, without regard to the conflict of law provisions thereof that would result in the application of the laws of any\nother jurisdiction. The parties hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of\nany state or federal court located in the State of Delaware for any actions, suits or proceedings arising out of or relating\nto this letter agreement and the transactions contemplated hereby (and the parties agree not to commence any action, suit\nor proceeding relating thereto except in such courts, and further agree that service of any process, summons, notice or\ndocument by U.S. registered mail to the address of the party’s principal executive offices shall be effective service of\nprocess for any action, suit or proceeding brought against such party in any such court). The parties hereby irrevocably\nand unconditionally waive any objection which they may now or hereafter have to the laying of venue of any action, suit\nor proceeding arising out of this letter agreement or the transactions contemplated hereby in any state or federal court in\nthe State of Delaware, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any\nsuch court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n11. Entire Agreement. This letter agreement contains the entire agreement between you and the\nCompany regarding its subject matter and supersedes all prior agreements, understandings, arrangements and discussions\nbetween you and the Company regarding such subject matter, including, without limitation, the parties’ Confidential\nDisclosure Agreement dated as of October 27, 2009 and the parties’ Project Ski Slope Confidentiality Agreement dated\nas of January 10, 2011, and any “clickthrough” agreement relating to the confidentiality of the Evaluation Material\nagreed to by you in connection with your access to any data site maintained in connection with a Possible Transaction.\n12. No Modification. No provision in this letter agreement can be waived, modified or amended\nexcept by written consent of you and the Company, which consent shall specifically refer to the provision to be waived,\nmodified or amended and shall explicitly make such waiver, modification or amendment.\n13. Counterparts. This letter agreement may be signed by facsimile and in one or more\ncounterparts, each of which shall be deemed an original but all of which shall be deemed to constitute a single\ninstrument.\n14. Severability. If any provision of this letter agreement is found to violate any statute,\nregulation, rule, order or decree of any governmental authority, court, agency or exchange, such invalidity shall not be\ndeemed to affect any other provision hereof or the validity of the remainder of this letter agreement, and such invalid\nprovision shall be deemed deleted herefrom to the minimum extent necessary to cure such violation.\n15. Assignment. This letter agreement shall be binding on and inure to the benefit of the\nsuccessors and assigns of the parties hereto, but neither of the parties may assign this letter agreement without the prior\nwritten consent of the other party; provided, however, either party may assign this letter agreement in whole or in part to\nany affiliate or subsidiary without consent of the other party.\nDecember 17, 2012\nPage 5 of 7\n16. Successors. This letter agreement shall inure to the benefit of, and be enforceable by, the\nCompany and its successors and assigns.\n17. Term. This letter agreement will terminate two (2) years from the date hereof.\nDecember 17, 2012\n \nPage 6 of 7\nPlease confirm your agreement with the foregoing by having a duly authorized officer sign and return\none copy of this letter to the undersigned, whereupon this letter agreement shall become a binding agreement among you\nand the Company.\nVery truly yours,\nMAP Pharmaceuticals, Inc.\nBy: /s/ Timothy S. Nelson\nName: Timothy S. Nelson\nTitle: President and CEO\nCONFIRMED AND AGREED\nas of the date written above:\nAllergan, Inc.\nBy: /s/ David M. Lawrence\nName: David M. Lawrence\nTitle: Sr. Vice President, Corporate Development\nDecember 17, 2012\nPage 7 of 7 EX-99.(E)(10) 3 d473134dex99e10.htm CONFIDENTIALITY AGREEMENT\nExhibit(e)(10)\nDecember 17, 2012\nAllergan, Inc.\n2525 Dupont Drive\nIrvine, CA 92612-1599\nAttention: David M. Lawrence\nRe: Confidentiality A Agreement\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction with or involving (a "Possible\nTransaction") MAP Pharmaceuticals, Inc. and/or its subsidiaries, affiliates or divisions (collectively, with such\nsubsidiaries,\naffiliates\nand\ndivisions,\nthe\n"Company."),\nthe\nCompany\nis\nprepared\nto\nmake\navailable\nto\nyou\nand\nyour\nRepresentatives (as hereinafter defined) certain information concerning the business, products, markets, condition\n(financial or other), operations, assets, liabilities, results of operations, cash flows and prospects of the Company. As\na\ncondition to such information being furnished to you and your Representatives, you agree that you shall, and shall cause\nyour Representatives to, treat the Evaluation Material (as hereinafter defined) in accordance with the provisions of this\nletter agreement and take or abstain from taking certain other actions as set forth herein. The term "Representatives"\nshall include your officers, directors, employees, outside legal counsel, accountants, agents and financial advisors, and\n(ii) with respect to the Company, shall include its officers, directors, employees, outside legal counsel, accountants,\nagents\nand\nfinancial\nadvisors.\nNotwithstanding\nany\nother\nprovision\nhereof,\nthe\nCompany\nreserves\nthe\nright\nnot\nto\nmake\navailable hereunder any information, the provision of which is determined by it, in its sole discretion, to be inadvisable\nor inappropriate.\n1. Evaluation Material. The term "Evaluation Material" shall mean all information relating,\ndirectly or indirectly, to the Company or the business, products, markets, condition (financial or other), operations,\nassets, liabilities, results of operations, cash flows or prospects of the Company (whether prepared by the Company,\nits\nadvisors or otherwise) which is delivered, disclosed or furnished by or on behalf of the Company to you or to your\nRepresentatives, before, on or after the date hereof, regardless of the manner in which it is delivered, disclosed or\nfurnished, and shall be deemed to include all notes, analyses, compilations, studies, forecasts, interpretations or other\ndocuments prepared by you or your Representatives that contain, reflect or are based upon, in whole or in part, the\ninformation delivered, disclosed or furnished to you or your Representatives pursuant hereto. Notwithstanding any other\nprovision hereof, the term Evaluation Material shall not include information which (i) is or becomes generally available\nto\nthe\npublic\nother\nthan\nas\na\nresult\nof\na\ndisclosure\nby\nyou\nor\nyour\nRepresentatives,\n(ii)\nwas\nwithin\nyour\npossession\non\na\nnon-confidential basis prior to it being furnished to you by or on behalf of the Company pursuant hereto, provided that\nthe source of such information was not known by you to be bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such information,\n(iii) becomes available to you on a non-confidential basis from a source other than the Company or any of its\nRepresentatives, provided that such source is not known by you to be bound by a confidentiality agreement with, or\nother\ncontractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such information, or (iv) was\nindependently developed by you prior to or after the date of disclosure.\n2.\nUse and Disclosure of Evaluation Material. You recognize and acknowledge the competitive\nvalue and confidential nature of the Evaluation Material and the damage that could result to the Company if any\ninformation contained therein is disclosed to a third party. You hereby agree that you and your Representatives shall use\nthe Evaluation Material solely for the purpose of evaluating a Possible Transaction and for no other purpose, that the\nEvaluation\nMaterial\nwill\nbe\nkept\nconfidential\nand\nthat\nyou\nand\nyour\nRepresentatives\nwill\nnot\ndisclose\nany\nof\nthe\nEvaluation Material in any manner whatsoever; provided, however, that (i) you may make any disclosure of the\nEvaluation Material to which the Company gives its prior written consent and (ii) any of the Evaluation Material may be\ndisclosed to your Representatives who need to know such information for the purpose of evaluating a Possible\nTransaction. In any event, you agree to undertake reasonable precautions to safeguard and protect the confidentiality of\nthe Evaluation Material using the same level of care you use to safeguard and protect the confidentiality of your own\nconfidential information and to accept responsibility for any breach of this letter agreement by you or any of your\nRepresentatives.\nIn addition, subject to the final paragraph of this Section 2, the parties agree that, without the prior\nwritten consent of the other party, each party and its Representatives will not disclose to any other person the fact that\nyou or your Representatives have received Evaluation Material or that Evaluation Material has been made available to\nyou or your Representatives, that investigations, discussions or negotiations are taking place concerning a Possible\nTransaction or any of the terms, conditions or other facts with respect to any Possible Transaction, including the status\nthereof and the identity of the parties thereto (collectively, the "Discussion Information").\nSubject to the final paragraph of this Section 2, in the event that you or any of your Representatives are\nrequested or required (by law or regulation, including the federal securities laws, securities exchange listing rules, oral\nquestions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand or other similar legal process) to disclose any of the Evaluation Material or Discussion Information, you shall\nprovide the Company with prompt written notice of any such request or requirement so that the Company may in its sole\ndiscretion seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter\nagreement, and, if requested by the Company, you shall cooperate with the Company (at the Company's expense) to\nobtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the\nEvaluation Material and the Discussion Information. If, in the absence of a protective order or other remedy or the\nreceipt of a waiver by the Company, you or any of your Representatives are nonetheless, on the advice of outside legal\ncounsel, legally compelled to disclose Evaluation Material or Discussion Information, you or your Representatives may,\nwithout liability hereunder, disclose only that portion of the Evaluation Material or Discussion information which such\ncounsel advises you is legally required to be disclosed, provided that you shall promptly notify the Company of (i) your\ndetermination to make such disclosure and (ii) the nature, scope and contents of such disclosure.\nDecember 17, 2012\nPage 2 of 7\nNotwithstanding anything in this Section 2 to the contrary, in the event that you seek to acquire control\nof the Company pursuant to any tender or exchange offer or in connection with any proxy or consent solicitation\ninvolving the Company, then solely in such circumstances, (i) you may, without first having notified the Company of\nsuch impending disclosure, disclose any Discussion Information if you have been advised by outside legal counsel that\ndisclosure\nof\nsuch\nDiscussion\nInformation\nis\nrequired\nto\nbe\nmade\nby\napplicable\nlaw\nor\nregulation\n(including\nthe\nfederal\nsecurities laws, securities exchange listing rules, oral questions, interrogatories, requests for information or documents in\nlegal proceedings, subpoena, civil investigative demand or other similar legal process) and (ii) you shall not be required\nto cooperate with the Company to obtain any protective order or other reliable assurance that confidential treatment will\nbe accorded any Evaluation Material or Discussion Information.\n3.\nReturn and Destruction of Evaluation Material. In the event that you decide not to proceed with\na Possible Transaction, you will promptly inform the Company of that decision. In that case, or at any time upon the\nrequest of the Company in its sole discretion and for any reason, you will as directed by the Company promptly deliver,\nat your expense, to the Company or destroy all Evaluation Material (and any copies thereof) furnished to you or your\nRepresentatives by or on behalf of the Company pursuant hereto. In the event of such a decision or request, all other\nEvaluation Material prepared by you or on your behalf shall be destroyed, and, upon the Company's request, you shall\nprovide the Company with prompt written confirmation of your compliance with this paragraph; provided, however, that\none copy of all Evaluation Material may be kept by your outside counsel for archival purposes only. Notwithstanding the\nreturn or destruction of the Evaluation Material, you and your Representatives shall continue to be bound by your\nobligations of confidentiality and other obligations and agreements hereunder.\n4. No Representations or Warranties. You understand, acknowledge and agree that neither the\nCompany nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or\ncompleteness of the Evaluation Material. You agree that neither the Company nor any of its Representatives shall have\nany liability to you or to any of your Representatives relating to or resulting from the use of the Evaluation Material or\nany errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive\nagreement regarding any transactions contemplated hereby, when, as and if executed and delivered, and subject to such\nlimitations and restrictions as may be specified therein, will have any legal effect.\n5.\nNo Solicitation. In consideration of the Evaluation Material being furnished to you, you hereby\nagree that, for a period of one (1) year from the date hereof, neither you nor any of your controlled affiliates or controlled\nRepresentatives (nor any person acting on behalf of or in concert with you or any of your controlled affiliates or\ncontrolled Representatives) will, without the prior written consent of the Company, directly or indirectly, solicit to\nemploy any of the officers or employees of the Company (i) with whom you have had contact during your evaluation of\na Possible Transaction or (ii) who were specifically identified to you by the Company or any of its Representatives\nduring your evaluation of a Possible Transaction. The restrictions of this paragraph shall not apply to any newspaper\nor\nInternet help wanted\nDecember 17, 2012\nPage 3 of 7\nadvertisement, or any search firm engagement which, in any such case, is not specifically directed or focused on\npersonnel employed by the Company.\n6.\nMaterial Non-Public Information. Each party acknowledges and agrees that it is aware (and that\nits respective Representatives are aware or, upon receipt of any Evaluation Information or Discussion Information, will\nbe advised by such party) that (i) the Evaluation Material being furnished to you or your Representatives contains\nmaterial, non-public information regarding the Company and (ii) the United States securities laws prohibit any persons\nwho have material, nonpublic information concerning the matters which are the subject of this letter agreement,\nincluding the Discussion Information, from purchasing or selling securities of a company which may be a party to a\ntransaction of the type contemplated by this letter agreement or from communicating such information to any person\nunder circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities in\nreliance upon such information.\n7.\nNo Agreement. The parties understand and agree that no contract or agreement providing for\nany Possible Transaction shall be deemed to exist between you and the Company unless and until a final definitive\nagreement has been executed and delivered. The parties also agree that unless and until a final definitive agreement\nregarding a Possible Transaction has been executed and delivered, neither party will be under any legal obligation of any\nkind whatsoever with respect to such a Possible Transaction by virtue of this letter agreement except for the matters\nspecifically agreed to herein. You acknowledge and agree that the Company reserves the right, in its sole discretion,\nto\nreject any and all proposals made by you or any of your Representatives with regard to a Possible Transaction, to\ndetermine not to engage in discussions or negotiations and to terminate discussions and negotiations with you at any\ntime, and to conduct, directly or through any of its Representatives, any process for any transaction involving the\nCompany or any of its subsidiaries, if and as they in their sole discretion shall determine (including, without limitation,\nnegotiating with any other interested parties and entering into a definitive agreement without prior notice to you or any\nother person).\n8.\nNo Waiver of Rights. It is understood and agreed that no failure or delay by the parties in\nexercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial\nexercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder.\n9.\nRemedies. It is understood and agreed that money damages would not be an adequate remedy\nfor any breach of this letter agreement by either party or any of its respective Representatives and that the non-breaching\nparty shall be entitled to equitable relief, including, without limitation, injunction and specific performance, as a remedy\nfor any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this letter agreement\nbut shall be in addition to all other remedies available at law or equity to the non-breaching party. The parties further\nagree not to raise as a defense or objection to the request or granting of such relief that any breach of this letter\nagreement is or would be compensable by an award of money damages, and the parties agree to waive any requirements\nfor the securing or posting of any bond in connection with such remedy.\nDecember 17, 2012\nPage 4 of 7\n10.\nGoverning Law. This letter agreement is for the benefit of the parties (and their respective\nsubsidiaries and affiliates) and their respective Representatives, and shall be governed by and construed in accordance\nwith the laws of the State of Delaware applicable to agreements made and to be performed entirely within the State of\nDelaware, without regard to the conflict of law provisions thereof that would result in the application of the laws of any\nother jurisdiction The parties hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of\nany state or federal court located in the State of Delaware for any actions, suits or proceedings arising out of or relating\nto this letter agreement and the transactions contemplated hereby (and the parties agree not to commence any action, suit\nor proceeding relating thereto except in such courts, and further agree that service of any process, summons, notice\nor\ndocument by U.S. registered mail to the address of the party's principal executive offices shall be effective service of\nprocess\nfor\nany\naction,\nsuit\nor\nproceeding\nbrought\nagainst\nsuch\nparty\nin\nany\nsuch\ncourt).\nThe\nparties\nhereby\nirrevocably\nand unconditionally waive any objection which they may now or hereafter have to the laying of venue of any action, suit\nor proceeding arising out of this letter agreement or the transactions contemplated hereby in any state or federal court in\nthe State of Delaware, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any\nsuch court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n11.\nEntire Agreement. This letter agreement contains the entire agreement between you and the\nCompany regarding its subject matter and supersedes all prior agreements, understandings, arrangements and discussions\nbetween you and the Company regarding such subject matter, including, without limitation, the parties' Confidential\nDisclosure Agreement dated as of October 27, 2009 and the parties' Project Ski Slope Confidentiality Agreement dated\nas of January 10, 2011, and any "clickthrough" agreement relating to the confidentiality of the Evaluation Material\nagreed to by you in connection with your access to any data site maintained in connection with a Possible Transaction.\n12.\nNo Modification. No provision in this letter agreement can be waived, modified or amended\nexcept by written consent of you and the Company, which consent shall specifically refer to the provision to be waived,\nmodified or amended and shall explicitly make such waiver, modification or amendment.\n13.\nCounterparts. This letter agreement may be signed by facsimile and in one or more\ncounterparts, each of which shall be deemed an original but all of which shall be deemed to constitute a single\ninstrument.\n14.\nSeverability.. If any provision of this letter agreement is found to violate any statute,\nregulation, rule, order or decree of any governmental authority, court, agency or exchange, such invalidity shall not\nbe\ndeemed to affect any other provision hereof or the validity of the remainder of this letter agreement, and such invalid\nprovision shall be deemed deleted herefrom to the minimum extent necessary to cure such violation.\n15. Assignment. This letter agreement shall be binding on and inure to the benefit of the\nsuccessors and assigns of the parties hereto, but neither of the parties may assign this letter agreement without the prior\nwritten consent of the other party; provided, however, either party may assign this letter agreement in whole or in part\nto\nany affiliate or subsidiary without consent of the other party.\nDecember 17, 2012\nPage 5 of 7\n16.\nSuccessors. This letter agreement shall inure to the benefit of, and be enforceable by, the\nCompany and its successors and assigns.\n17.\nTerm. This letter agreement will terminate two (2) years from the date hereof.\nDecember 17, 2012\nPage 6 of 7\nPlease confirm your agreement with the foregoing by having a duly authorized officer sign and return\none copy of this letter to the undersigned, whereupon this letter agreement shall become a binding agreement among you\nand the Company.\nVery truly yours,\nMAP Pharmaceuticals, Inc.\nBy: /s/ Timothy S. Nelson\nName: Timothy S. Nelson\nTitle: President and CEO\nCONFIRMED AND AGREED\nas of the date written above:\nAllergan, Inc.\nBy: /s/ David M. Lawrence\nName: David M. Lawrence\nTitle: Sr. Vice President, Corporate Development\nDecember 17, 2012\nPage 7 of 7 EX-99.(E)(10) 3 d473134dex99e10.htm CONFIDENTIALITY AGREEMENT\nExhibit(e)(10)\nDecember 17, 2012\nAllergan, Inc.\n2525 Dupont Drive\nIrvine, CA 92612-1599\nAttention: David M. Lawrence\nRe: Confidentiality Agreement\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction with or involving (a “Possible\nTransaction”) MAP Pharmaceuticals, Inc. and/or its subsidiaries, affiliates or divisions (collectively, with such\nsubsidiaries, affiliates and divisions, the “Company”), the Company is prepared to make available to you and your\nRepresentatives (as hereinafter defined) certain information concerning the business, products, markets, condition\n(financial or other), operations, assets, liabilities, results of operations, cash flows and prospects of the Company. As a\ncondition to such information being furnished to you and your Representatives, you agree that you shall, and shall cause\nyour Representatives to, treat the Evaluation Material (as hereinafter defined) in accordance with the provisions of this\nletter agreement and take or abstain from taking certain other actions as set forth herein. The term “Representatives”\nshall include your officers, directors, employees, outside legal counsel, accountants, agents and financial advisors, and\n(ii) with respect to the Company, shall include its officers, directors, employees, outside legal counsel, accountants,\nagents and financial advisors. Notwithstanding any other provision hereof, the Company reserves the right not to make\navailable hereunder any information, the provision of which is determined by it, in its sole discretion, to be inadvisable\nor inappropriate.\n1. Evaluation Material. The term “Evaluation Material” shall mean all information relating,\ndirectly or indirectly, to the Company or the business, products, markets, condition (financial or other), operations,\nassets, liabilities, results of operations, cash flows or prospects of the Company (whether prepared by the Company, its\nadvisors or otherwise) which is delivered, disclosed or furnished by or on behalf of the Company to you or to your\nRepresentatives, before, on or after the date hereof, regardless of the manner in which it is delivered, disclosed or\nfurnished, and shall be deemed to include all notes, analyses, compilations, studies, forecasts, interpretations or other\ndocuments prepared by you or your Representatives that contain, reflect or are based upon, in whole or in part, the\ninformation delivered, disclosed or furnished to you or your Representatives pursuant hereto. Notwithstanding any other\nprovision hereof, the term Evaluation Material shall not include information which (i) is or becomes generally available\nto the public other than as a result of a disclosure by you or your Representatives, (ii) was within your possession on a\nnon-confidential basis prior to it being furnished to you by or on behalf of the Company pursuant hereto, provided that\nthe source of such information was not known by you to be bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such information,\n(iii) becomes available to you on a non-confidential basis from a source other than the Company or any of its\nRepresentatives, provided that such source is not known by you to be bound by a confidentiality agreement with, or\nother\ncontractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such information, or (iv) was\nindependently developed by you prior to or after the date of disclosure.\n2. Use and Disclosure of Evaluation Material. You recognize and acknowledge the competitive\nvalue and confidential nature of the Evaluation Material and the damage that could result to the Company if any\ninformation contained therein is disclosed to a third party. You hereby agree that you and your Representatives shall use\nthe Evaluation Material solely for the purpose of evaluating a Possible Transaction and for no other purpose, that the\nEvaluation Material will be kept confidential and that you and your Representatives will not disclose any of the\nEvaluation Material in any manner whatsoever; provided, however, that (i) you may make any disclosure of the\nEvaluation Material to which the Company gives its prior written consent and (ii) any of the Evaluation Material may be\ndisclosed to your Representatives who need to know such information for the purpose of evaluating a Possible\nTransaction. In any event, you agree to undertake reasonable precautions to safeguard and protect the confidentiality of\nthe Evaluation Material using the same level of care you use to safeguard and protect the confidentiality of your own\nconfidential information and to accept responsibility for any breach of this letter agreement by you or any of your\nRepresentatives.\nIn addition, subject to the final paragraph of this Section 2, the parties agree that, without the prior\nwritten consent of the other party, each party and its Representatives will not disclose to any other person the fact that\nyou or your Representatives have received Evaluation Material or that Evaluation Material has been made available to\nyou or your Representatives, that investigations, discussions or negotiations are taking place concerning a Possible\nTransaction or any of the terms, conditions or other facts with respect to any Possible Transaction, including the status\nthereof and the identity of the parties thereto (collectively, the “Discussion Information”).\nSubject to the final paragraph of this Section 2, in the event that you or any of your Representatives are\nrequested or required (by law or regulation, including the federal securities laws, securities exchange listing rules, oral\nquestions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand or other similar legal process) to disclose any of the Evaluation Material or Discussion Information, you shall\nprovide the Company with prompt written notice of any such request or requirement so that the Company may in its sole\ndiscretion seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter\nagreement, and, if requested by the Company, you shall cooperate with the Company (at the Company’s expense) to\nobtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the\nEvaluation Material and the Discussion Information. If, in the absence of a protective order or other remedy or the\nreceipt of a waiver by the Company, you or any of your Representatives are nonetheless, on the advice of outside legal\ncounsel, legally compelled to disclose Evaluation Material or Discussion Information, you or your Representatives may,\nwithout liability hereunder, disclose only that portion of the Evaluation Material or Discussion information which such\ncounsel advises you is legally required to be disclosed, provided that you shall promptly notify the Company of (i) your\ndetermination to make such disclosure and (ii) the nature, scope and contents of such disclosure.\nDecember 17, 2012\nPage2of7\nNotwithstanding anything in this Section 2 to the contrary, in the event that you seek to acquire control\nof the Company pursuant to any tender or exchange offer or in connection with any proxy or consent solicitation\ninvolving the Company, then solely in such circumstances, (i) you may, without first having notified the Company of\nsuch impending disclosure, disclose any Discussion Information if you have been advised by outside legal counsel that\ndisclosure of such Discussion Information is required to be made by applicable law or regulation (including the federal\nsecurities laws, securities exchange listing rules, oral questions, interrogatories, requests for information or documents in\nlegal proceedings, subpoena, civil investigative demand or other similar legal process) and (ii) you shall not be required\nto cooperate with the Company to obtain any protective order or other reliable assurance that confidential treatment will\nbe accorded any Evaluation Material or Discussion Information.\n3.\nReturn and Destruction of Evaluation Material. In the event that you decide not to proceed with\na Possible Transaction, you will promptly inform the Company of that decision. In that case, or at any time upon the\nrequest of the Company in its sole discretion and for any reason, you will as directed by the Company promptly deliver,\nat your expense, to the Company or destroy all Evaluation Material (and any copies thereof) furnished to you or your\nRepresentatives by or on behalf of the Company pursuant hereto. In the event of such a decision or request, all other\nEvaluation Material prepared by you or on your behalf shall be destroyed, and, upon the Company’s request, you shall\nprovide the Company with prompt written confirmation of your compliance with this paragraph; provided, however, that\none copy of all Evaluation Material may be kept by your outside counsel for archival purposes only. Notwithstanding the\nreturn or destruction of the Evaluation Material, you and your Representatives shall continue to be bound by your\nobligations of confidentiality and other obligations and agreements hereunder.\n4. No Representations or Warranties. You understand, acknowledge and agree that neither the\nCompany nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or\ncompleteness of the Evaluation Material. You agree that neither the Company nor any of its Representatives shall have\nany liability to you or to any of your Representatives relating to or resulting from the use of the Evaluation Material or\nany errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive\nagreement regarding any transactions contemplated hereby, when, as and if executed and delivered, and subject to such\nlimitations and restrictions as may be specified therein, will have any legal effect.\n5. No Solicitation. In consideration of the Evaluation Material being furnished to you, you hereby\nagree that, for a period of one (1) year from the date hereof, neither you nor any of your controlled affiliates or controlled\nRepresentatives (nor any person acting on behalf of or in concert with you or any of your controlled affiliates or\ncontrolled Representatives) will, without the prior written consent of the Company, directly or indirectly, solicit to\nemploy any of the officers or employees of the Company (i) with whom you have had contact during your evaluation of\na Possible Transaction or (ii) who were specifically identified to you by the Company or any of its Representatives\nduring your evaluation of a Possible Transaction. The restrictions of this paragraph shall not apply to any newspaper or\nInternet help wanted\nDecember 17, 2012\nPage3of7\nadvertisement, or any search firm engagement which, in any such case, is not specifically directed or focused on\npersonnel employed by the Company.\n6. Material Non-Public Information. Each party acknowledges and agrees that it is aware (and that\nits respective Representatives are aware or, upon receipt of any Evaluation Information or Discussion Information, will\nbe advised by such party) that (i) the Evaluation Material being furnished to you or your Representatives contains\nmaterial, non-public information regarding the Company and (ii) the United States securities laws prohibit any persons\nwho have material, nonpublic information concerning the matters which are the subject of this letter agreement,\nincluding the Discussion Information, from purchasing or selling securities of a company which may be a party to a\ntransaction of the type contemplated by this letter agreement or from communicating such information to any person\nunder circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities in\nreliance upon such information.\n7. No Agreement. The parties understand and agree that no contract or agreement providing for\nany Possible Transaction shall be deemed to exist between you and the Company unless and until a final definitive\nagreement has been executed and delivered. The parties also agree that unless and until a final definitive agreement\nregarding a Possible Transaction has been executed and delivered, neither party will be under any legal obligation of any\nkind whatsoever with respect to such a Possible Transaction by virtue of this letter agreement except for the matters\nspecifically agreed to herein. You acknowledge and agree that the Company reserves the right, in its sole discretion, to\nreject any and all proposals made by you or any of your Representatives with regard to a Possible Transaction, to\ndetermine not to engage in discussions or negotiations and to terminate discussions and negotiations with you at any\ntime, and to conduct, directly or through any of its Representatives, any process for any transaction involving the\nCompany or any of its subsidiaries, if and as they in their sole discretion shall determine (including, without limitation,\nnegotiating with any other interested parties and entering into a definitive agreement without prior notice to you or any\nother person).\n8. No Waiver of Rights. It is understood and agreed that no failure or delay by the parties in\nexercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial\nexercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder.\n9. Remedies. It is understood and agreed that money damages would not be an adequate remedy\nfor any breach of this letter agreement by either party or any of its respective Representatives and that the non-breaching\nparty shall be entitled to equitable relief, including, without limitation, injunction and specific performance, as a remedy\nfor any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this letter agreement\nbut shall be in addition to all other remedies available at law or equity to the non-breaching party. The parties further\nagree not to raise as a defense or objection to the request or granting of such relief that any breach of this letter\nagreement is or would be compensable by an award of money damages, and the parties agree to waive any requirements\nfor the securing or posting of any bond in connection with such remedy.\nDecember 17, 2012\nPage4of7\n10. Governing Law. This letter agreement is for the benefit of the parties (and their respective\nsubsidiaries and affiliates) and their respective Representatives, and shall be governed by and construed in accordance\nwith the laws of the State of Delaware applicable to agreements made and to be performed entirely within the State of\nDelaware, without regard to the conflict of law provisions thereof that would result in the application of the laws of any\nother jurisdiction. The parties hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of\nany state or federal court located in the State of Delaware for any actions, suits or proceedings arising out of or relating\nto this letter agreement and the transactions contemplated hereby (and the parties agree not to commence any action, suit\nor proceeding relating thereto except in such courts, and further agree that service of any process, summons, notice or\ndocument by U.S . registered mail to the address of the party’s principal executive offices shall be effective service of\nprocess for any action, suit or proceeding brought against such party in any such court). The parties hereby irrevocably\nand unconditionally waive any objection which they may now or hereafter have to the laying of venue of any action, suit\nor proceeding arising out of this letter agreement or the transactions contemplated hereby in any state or federal court in\nthe State of Delaware, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any\nsuch court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n11. Entire Agreement. This letter agreement contains the entire agreement between you and the\nCompany regarding its subject matter and supersedes all prior agreements, understandings, arrangements and discussions\nbetween you and the Company regarding such subject matter, including, without limitation, the parties’ Confidential\nDisclosure Agreement dated as of October 27, 2009 and the parties’ Project Ski Slope Confidentiality Agreement dated\nas of January 10, 2011, and any “clickthrough” agreement relating to the confidentiality of the Evaluation Material\nagreed to by you in connection with your access to any data site maintained in connection with a Possible Transaction.\n12. No Modification. No provision in this letter agreement can be waived, modified or amended\nexcept by written consent of you and the Company, which consent shall specifically refer to the provision to be waived,\nmodified or amended and shall explicitly make such waiver, modification or amendment.\n13. Counterparts. This letter agreement may be signed by facsimile and in one or more\ncounterparts, each of which shall be deemed an original but all of which shall be deemed to constitute a single\ninstrument.\n14. Severability. If any provision of this letter agreement is found to violate any statute,\nregulation, rule, order or decree of any governmental authority, court, agency or exchange, such invalidity shall not be\ndeemed to affect any other provision hereof or the validity of the remainder of this letter agreement, and such invalid\nprovision shall be deemed deleted herefrom to the minimum extent necessary to cure such violation.\n15. Assignment. This letter agreement shall be binding on and inure to the benefit of the\nsuccessors and assigns of the parties hereto, but neither of the parties may assign this letter agreement without the prior\nwritten consent of the other party; provided, however, either party may assign this letter agreement in whole or in part to\nany affiliate or subsidiary without consent of the other party.\nDecember 17, 2012\nPage5of7\n16. Successors. This letter agreement shall inure to the benefit of, and be enforceable by, the\nCompany and its successors and assigns.\n17. Term. This letter agreement will terminate two (2) years from the date hereof.\nDecember 17, 2012\nPage6of7\nPlease confirm your agreement with the foregoing by having a duly authorized officer sign and return\none copy of this letter to the undersigned, whereupon this letter agreement shall become a binding agreement among you\nand the Company.\nVery truly yours,\nMAP Pharmaceuticals, Inc.\nBy: /s/ Timothy S. Nelson\nName: Timothy S. Nelson\nTitle: President and CEO\nCONFIRMED AND AGREED\nas of the date written above:\nAllergan, Inc.\nBy: /s/ David M. Lawrence\nName: David M. Lawrence\nTitle: Sr. Vice President, Corporate Development\nDecember 17, 2012\nPage7of7 372e268a1e8fe9d6eda0852402434170.pdf effective_date jurisdiction party term EX-10.33 15 w58244ex10-33.htm INVENTION & NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.33\nINVENTION AND NON-DISCLOSURE AGREEMENT\nThis Agreement effective as of May 23, 2000 is made between uDate.com, Inc., a Delaware corporation (hereinafter referred to collectively with\nits predecessors and its past, current and future subsidiary corporations as the “Company”), and Anthony Dunn (the “Employee”).\nIn consideration of the employment or the continued employment of the Employee by the Company, the Company and the Employee agree as\nfollows:\n1. Proprietary Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive property of the\nCompany. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods, techniques,\nformulas, compositions, compounds, projects, developments, plans, research data, clinical data, financial data, personnel data, computer programs,\ncustomer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The Employee will not disclose\nany Proprietary Information to any person or entity other than employees of the Company or use the same for any purposes (other than in the\nperformance of his duties as an employee of the Company) without written approval by an officer of the Company, either during or after his\nemployment with the Company, unless and until such Proprietary Information has become public knowledge without fault by the Employee.\n(b) The Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks, program\nlistings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee or others,\nwhich shall come into his custody or possession, shall be and are the exclusive property of the Company to be used by the Employee only in the\nperformance of his duties for the Company. All such materials or copies thereof and all tangible property of the Company in the custody or\npossession of the Employee shall be delivered to the Company, upon the earlier of (i) a request by the Company or (ii) termination of his\nemployment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such tangible property.\n(c) The Employee agrees that his obligation not to disclose or to use information and materials of the types set forth in paragraphs (a) and\n(b) above, and his obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to such types of information,\nmaterials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have disclosed or entrusted\nthe same to the Company or to the Employee.\n2. Developments.\n(a) The Employee will make, and has made, full and prompt disclosure to the Company of all inventions, improvements, discoveries,\nmethods, developments, software, and works of authorship, whether patentable or not, which are created, made, conceived or reduced to\npractice by him or under his direction or jointly with others during his employment by the Company, whether or not during normal working hours or\non the premises of the Company (all of which are collectively referred to in this Agreement as “Developments”).\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all his\nright, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications. However, this\nparagraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and development of the Company\nand which are made and conceived by the Employee not during normal working hours, not on the Company’s premises and not using the Company’s\ntools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this Agreement shall be construed in accordance\nwith the laws of any state which precludes a requirement in an employee agreement to assign certain classes of inventions made by an employee, this\nparagraph 2(b) shall be interpreted not to apply to any invention which a court rules and/or the Company agrees falls within such classes. The\nEmployee also hereby waives all claims to moral rights in any Developments.\n(c) The Employee agrees to cooperate fully with the Company, both during and after his employment with the Company, with respect to\nthe procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States and foreign\ncountries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent applications,\ndeclarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem necessary or desirable\nin order to protect its rights and interests in any Development. The Employee further agrees that if the Company is unable, after reasonable effort, to\nsecure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to execute any such papers as the\nagent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints each executive officer of the Company\nas his agent and attorney-in-fact to execute any such papers on his behalf, and to take any and all actions as the Company may deem necessary or\ndesirable in order to protect its rights and interests in any Development, under the conditions described in this sentence.\n3. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the terms\nof any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary\ninformation in the course of his employment with the Company, to refrain from competing, directly or indirectly, with the business of such previous\nemployer or any other party or to refrain from soliciting employees, customers or suppliers of such previous employer or other party. The Employee\nfurther represents that his performance of all the terms of this Agreement and the performance of his duties as an employee of the Company do not\nand will not breach any agreement with any prior employer or other party to which the Employee is a party (including without limitation any\nnondisclosure or non-competition agreement), and that the Employee will not disclose to the Company or induce the Company to use any\nconfidential or proprietary information or material belonging to any previous employer or others.\n-2-\n4. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and restrictions\nwhich are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such agreements.\n5. No Employment Contract.\nThe Employee understand that this Agreement does not constitute a contract of employment and does not imply that his employment will\ncontinue for any period of time.\n6. Miscellaneous.\n(a) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement.\n(b) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the subject\nmatter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in writing signed\nby the Employee and the Company. The Employee agrees that any change or changes in his duties, salary or compensation after the signing of this\nAgreement shall not affect the validity or scope of this Agreement.\n(c) This Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the Company\nand its successors and assigns.\n(d) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other right.\nA waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or waiver of\nany right on any other occasion.\n(e) The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any subsidiary\nor affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be re-signed at the time of such\ntransfer.\n(f) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Company and are\nconsidered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in addition to\nsuch other remedies which may be available, shall be entitled to specific performance and other injunctive relief.\n(g) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the State of\nDelaware (without reference to\n-3-\nthe conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or\nrelating to any provision of this Agreement shall be commenced only in a court of the State of Delaware (or, if appropriate, a federal court located\nwithin Delaware), and the Company and the Employee each consents to the jurisdiction of such a court.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND AGREES\nTO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nUDATE.COM, INC.\nDate:\nBy: /s/ Martin Clifford\nMartin Clifford\nChief Operating Officer\nDate:\nBy: /s/ Anthony Dunn\nAnthony Dunn\n-4- EX-10.33 15 w58244ex10-33.htm INVENTION & NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.33\nINVENTION AND NON-DISCLOSURE AGREEMENT\nThis Agreement effective as of May 23, 2000 is made between uDate.com, Inc., a Delaware corporation (hereinafter referred to collectively with\nits predecessors and its past, current and future subsidiary corporations as the “Company”), and Anthony Dunn (the “Employee”).\nIn consideration of the employment or the continued employment of the Employee by the Company, the Company and the Employee agree as\nfollows:\n1. Proprietary Information.\n(@) The Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information™) is and shall be the exclusive property of the\nCompany. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods, techniques,\nformulas, compositions, compounds, projects, developments, plans, research data, clinical data, financial data, personnel data, computer programs,\ncustomer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The Employee will not disclose\nany Proprietary Information to any person or entity other than employees of the Company or use the same for any purposes (other than in the\nperformance of his duties as an employee of the Company) without written approval by an officer of the Company, either during or after his\nemployment with the Company, unless and until such Proprietary Information has become public knowledge without fault by the Employee.\n(b) The Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks, program\nlistings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee or others,\nwhich shall come into his custody or possession, shall be and are the exclusive property of the Company to be used by the Employee only in the\nperformance of his duties for the Company. All such materials or copies thereof and all tangible property of the Company in the custody or\npossession of the Employee shall be delivered to the Company, upon the earlier of (i) a request by the Company or (ii) termination of his\nemployment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such tangible property.\n(c) The Employee agrees that his obligation not to disclose or to use information and materials of the types set forth in paragraphs (a) and\n(b) above, and his obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to such types of information,\nmaterials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have disclosed or entrusted\nthe same to the Company or to the Employee.\n2. Developments.\n(@) The Employee will make, and has made, full and prompt disclosure to the Company of all inventions, improvements, discoveries,\nmethods, developments, software, and works of authorship, whether patentable or not, which are created, made, conceived or reduced to\npractice by him or under his direction or jointly with others during his employment by the Company, whether or not during normal working hours or\non the premises of the Company (all of which are collectively referred to in this Agreement as “Developments”).\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all his\nright, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications. However, this\nparagraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and development of the Company\nand which are made and conceived by the Employee not during normal working hours, not on the Company’s premises and not using the Company’s\ntools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this Agreement shall be construed in accordance\nwith the laws of any state which precludes a requirement in an employee agreement to assign certain classes of inventions made by an employee, this\nparagraph 2(b) shall be interpreted not to apply to any invention which a court rules and/or the Company agrees falls within such classes. The\nEmployee also hereby waives all claims to moral rights in any Developments.\n(c) The Employee agrees to cooperate fully with the Company, both during and after his employment with the Company, with respect to\nthe procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States and foreign\ncountries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent applications,\ndeclarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem necessary or desirable\nin order to protect its rights and interests in any Development. The Employee further agrees that if the Company is unable, after reasonable effort, to\nsecure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to execute any such papers as the\nagent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints each executive officer of the Company\nas his agent and attorney-in-fact to execute any such papers on his behalf, and to take any and all actions as the Company may deem necessary or\ndesirable in order to protect its rights and interests in any Development, under the conditions described in this sentence.\n3. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the terms\nof any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary\ninformation in the course of his employment with the Company, to refrain from competing, directly or indirectly, with the business of such previous\nemployer or any other party or to refrain from soliciting employees, customers or suppliers of such previous employer or other party. The Employee\nfurther represents that his performance of all the terms of this Agreement and the performance of his duties as an employee of the Company do not\nand will not breach any agreement with any prior employer or other party to which the Employee is a party (including without limitation any\nnondisclosure or non-competition agreement), and that the Employee will not disclose to the Company or induce the Company to use any\nconfidential or proprietary information or material belonging to any previous employer or others.\n-\n4. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and restrictions\nwhich are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such agreements.\n5. No Employment Contract.\nThe Employee understand that this Agreement does not constitute a contract of employment and does not imply that his employment will\ncontinue for any period of time.\n6. Miscellaneous.\n(@) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement.\n(b) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the subject\nmatter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in writing signed\nby the Employee and the Company. The Employee agrees that any change or changes in his duties, salary or compensation after the signing of this\nAgreement shall not affect the validity or scope of this Agreement.\n(c) This Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the Company\nand its successors and assigns.\n(d) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other right.\nA waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or waiver of\nany right on any other occasion.\n(e) The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any subsidiary\nor affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be re-signed at the time of such\ntransfer.\n(f) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Company and are\nconsidered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in addition to\nsuch other remedies which may be available, shall be entitled to specific performance and other injunctive relief.\n(g) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the State of\nDelaware (without reference to\nthe conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or\nrelating to any provision of this Agreement shall be commenced only in a court of the State of Delaware (or, if appropriate, a federal court located\nwithin Delaware), and the Company and the Employee each consents to the jurisdiction of such a court.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND AGREES\nTO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nUDATE.COM, INC.\nDate: By: /s/ Martin Clifford\nMartin Clifford\nChief Operating Officer\nDate: By: /s/ Anthony Dunn\nAnthony Dunn\n4- EX-10.33 15 w58244ex10-33.htm INVENTION & NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.33\nINVENTION AND NON-DISCLOSURE AGREEMENT\nThis Agreement effective as of May 23, 2000 is made between uDate.com, Inc., a Delaware corporation (hereinafter referred to collectively with\nits predecessors and its past, current and future subsidiary corporations as the "Company"), and Anthony Dunn (the "Employee").\nIn consideration of the employment or the continued employment of the Employee by the Company, the Company and the Employee agree as\nfollows:\n1. Proprietary Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, secret or confidentia nature concerning the\nCompany's business, business relationships or financial affairs (collectively, "Proprietary Information") is and shall be the exclusive property of the\nCompany. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods, techniques,\nformulas, compositions, compounds, projects, developments, plans, research data, clinical data, financial data, personnel data, computer programs,\ncustomer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The Employee will not disclose\nany Proprietary Information to any person or entity other than employees of the Company or use the same for any purposes (other than in the\nperformance of his duties as an employee of the Company) without written approval by an officer of the Company, either during or after his\nemployment with the Company, unless and until such Proprietary Information has become public knowledge without fault by the Employee.\n(b)\nThe Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks, program\nlistings,\nor\nother\nwritten,\nphotographic,\nor\nother\ntangible\nmaterial\ncontaining\nProprietary\nInformation,\nwhether\ncreated\nby\nthe\nEmployee\nor\nothers,\nwhich shall come into his custody or possession, shall be and are the exclusive property of the Company to be used by the Employee only in the\nperformance of his duties for the Company. All such materials or copies thereof and all tangible property of the Company in the custody or\npossession of the Employee shall be delivered to the Company, upon the earlier of (i) a request by the Company or (ii) termination of his\nemployment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such tangible property.\n(c)\nThe Employee agrees that his obligation not to disclose or to use information and materials of the types set forth in paragraphs\n(a)\nand\n(b) above, and his obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to such types of information,\nmaterials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have disclosed or entrusted\nthe same to the Company or to the Employee.\n2. Developments.\n(a) The Employee will make, and has made, full and prompt disclosure to the Company of all inventions, improvements, discoveries,\nmethods, developments, software, and works of authorship, whether patentable or not, which are created, made, conceived or reduced to\npractice by him or under his direction or jointly with others during his employment by the Company, whether or not during normal working hours or\non the premises of the Company (all of which are collectively referred to in this Agreement as "Developments").\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all his\nright, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications. However, this\nparagraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and development of the Company\nand which are made and conceived by the Employee not during normal working hours, not on the Company's premises and not using the Company's\ntools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this Agreement shal be construed in accordance\nwith the laws of any state which precludes a requirement in an employee agreement to assign certain classes of inventions made by an employee, this\nparagraph 2(b) shall be interpreted not to apply to any invention which a court rules and/or the Company agrees falls within such classes. The\nEmployee also hereby waives all claims to moral rights in any Developments.\n(c)\nThe Employee agrees to cooperate fully with the Company, both during and after his employment with the Company, with respect to\nthe procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States and foreign\ncountries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent applications,\ndeclarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem necessary or desirable\nin\norder to protect its rights and interests in any Development. The Employee further agrees that if the Company is unable, after reasonable effort,\nto\nsecure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to execute any such papers as the\nagent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints each executive officer of the Company\nas his agent and attorney-in-fact to execute any such papers on his behalf, and to take any and all actions as the Company may deem necessary or\ndesirable in order to protect its rights and interests in any Development, under the conditions described in this sentence.\n3.\nOther Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the terms\nof any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary\ninformation in the course of his employment with the Company, to refrain from competing, directly or indirectly, with the business of such previous\nemployer or any other party or to refrain from soliciting employees, customers or suppliers of such previous employer or other party. The Employee\nfurther represents that his performance of all the terms of this Agreement and the performance of his duties as an employee of the Company do not\nand will not breach any agreement with any prior employer or other party to which the Employee is a party (including without limitation any\nnondisclosure or non-competition agreement), and that the Employee will not disclose to the Company or induce the Company to use any\nconfidential or proprietary information or material belonging to any previous employer or others.\n-2-\n4.\nUnited States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and restrictions\nwhich are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such agreements.\n5.\nNo Employment Contract.\nThe Employee understand that this Agreement does not constitute a contract of employment and does not imply that his employment will\ncontinue for any period of time.\n6. Miscellaneous.\n(a) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement.\n(b) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the subject\nmatter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in writing signed\nby the Employee and the Company. The Employee agrees that any change or changes in his duties, salary or compensation after the signing of this\nAgreement shall not affect the validity or scope of this Agreement.\n(c)\nThis Agreement will be binding upon the Employee's heirs, executors and administrators and will inure to the benefit of the Company\nand its successors and assigns\n(d) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other right.\nA waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or waiver of\nany right on any other occasion.\n(e) The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any subsidiary\nor affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be re-signed at the time of such\ntransfer\n(f) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Company and are\nconsidered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in addition to\nsuch other remedies which may be available, shall be entitled to specific performance and other injunctive relief.\n(g)\nThis Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the State of\nDelaware (without reference to\n-3-\nthe conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or\nrelating to any provision of this Agreement shall be commenced only in a court of the State of Delaware (or, if appropriate, a federal court located\nwithin Delaware), and the Company and the Employee each consents to the jurisdiction of such a court.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND AGREES\nTO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nUDATE.COM, INC.\nDate:\nBy:\n/s/ Martin Clifford\nMartin Clifford\nChief Operating Officer\nDate:\nBy:\n/s/ Anthony Dunn\nAnthony Dunn\n-4- EX-10.33 15 w58244ex10-33.htm INVENTION & NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.33\nINVENTION AND NON-DISCLOSURE AGREEMENT\nThis Agreement effective as of May 23, 2000 is made between uDate.com, Inc., a Delaware corporation (hereinafter referred to collectively with\nits predecessors and its past, current and future subsidiary corporations as the “Company”), and Anthony Dunn (the “Employee”).\nIn consideration of the employment or the continued employment of the Employee by the Company, the Company and the Employee agree as\nfollows:\n1. Proprietary Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive property of the\nCompany. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods, techniques,\nformulas, compositions, compounds, projects, developments, plans, research data, clinical data, financial data, personnel data, computer programs,\ncustomer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The Employee will not disclose\nany Proprietary Information to any person or entity other than employees of the Company or use the same for any purposes (other than in the\nperformance of his duties as an employee of the Company) without written approval by an officer of the Company, either during or after his\nemployment with the Company, unless and until such Proprietary Information has become public knowledge without fault by the Employee.\n(b) The Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks, program\nlistings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee or others,\nwhich shall come into his custody or possession, shall be and are the exclusive property of the Company to be used by the Employee only in the\nperformance of his duties for the Company. All such materials or copies thereof and all tangible property of the Company in the custody or\npossession of the Employee shall be delivered to the Company, upon the earlier of (i) a request by the Company or (ii) termination of his\nemployment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such tangible property.\n(c) The Employee agrees that his obligation not to disclose or to use information and materials of the types set forth in paragraphs (a) and\n(b) above, and his obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to such types of information,\nmaterials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have disclosed or entrusted\nthe same to the Company or to the Employee.\n2. Developments.\n(a) The Employee will make, and has made, full and prompt disclosure to the Company of all inventions, improvements, discoveries,\nmethods, developments, software, and works of authorship, whether patentable or not, which are created, made, conceived or reduced to\npractice by him or under his direction or jointly with others during his employment by the Company, whether or not during normal working hours or\non the premises of the Company (all of which are collectively referred to in this Agreement as “Developments”).\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all his\nright, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications. However, this\nparagraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and development of the Company\nand which are made and conceived by the Employee not during normal working hours, not on the Company’s premises and not using the Company’s\ntools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this Agreement shall be construed in accordance\nwith the laws of any state which precludes a requirement in an employee agreement to assign certain classes of inventions made by an employee, this\nparagraph 2(b) shall be interpreted not to apply to any invention which a court rules and/or the Company agrees falls within such classes. The\nEmployee also hereby waives all claims to moral rights in any Developments.\n(c) The Employee agrees to cooperate fully with the Company, both during and after his employment with the Company, with respect to\nthe procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States and foreign\ncountries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent applications,\ndeclarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem necessary or desirable\nin order to protect its rights and interests in any Development. The Employee further agrees that if the Company is unable, after reasonable effort, to\nsecure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to execute any such papers as the\nagent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints each executive officer of the Company\nas his agent and attorney-in-fact to execute any such papers on his behalf, and to take any and all actions as the Company may deem necessary or\ndesirable in order to protect its rights and interests in any Development, under the conditions described in this sentence.\n3. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the terms\nof any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary\ninformation in the course of his employment with the Company, to refrain from competing, directly or indirectly, with the business of such previous\nemployer or any other party or to refrain from soliciting employees, customers or suppliers of such previous employer or other party. The Employee\nfurther represents that his performance of all the terms of this Agreement and the performance of his duties as an employee of the Company do not\nand will not breach any agreement with any prior employer or other party to which the Employee is a party (including without limitation any\nnondisclosure or non-competition agreement), and that the Employee will not disclose to the Company or induce the Company to use any\nconfidential or proprietary information or material belonging to any previous employer or others.\n-2-\n4. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and restrictions\nwhich are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such agreements.\n5. No Employment Contract.\nThe Employee understand that this Agreement does not constitute a contract of employment and does not imply that his employment will\ncontinue for any period of time.\n6. Miscellaneous.\n(a) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement.\n(b) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the subject\nmatter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in writing signed\nby the Employee and the Company. The Employee agrees that any change or changes in his duties, salary or compensation after the signing of this\nAgreement shall not affect the validity or scope of this Agreement.\n(c) This Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the Company\nand its successors and assigns.\n(d) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other right.\nA waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or waiver of\nany right on any other occasion.\n(e) The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any subsidiary\nor affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be re-signed at the time of such\ntransfer.\n(f) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Company and are\nconsidered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in addition to\nsuch other remedies which may be available, shall be entitled to specific performance and other injunctive relief.\n(g) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the State of\nDelaware (without reference to\n-3-\nthe conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or\nrelating to any provision of this Agreement shall be commenced only in a court of the State of Delaware (or, if appropriate, a federal court located\nwithin Delaware), and the Company and the Employee each consents to the jurisdiction of such a court.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND AGREES\nTO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nUDATE.COM, INC.\nDate:\nBy: /s/ Martin Clifford\nMartin Clifford\nChief Operating Officer\nDate:\nBy: /s/ Anthony Dunn\nAnthony Dunn\n-4- 3aeb57dd3d0c179a03480b814b66fb08.pdf effective_date jurisdiction party term EXHIBIT A\nNONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this “Agreement”) is dated as of ___ , 200__, between Virgin Mobile USA, LLC, a Delaware limited liability\ncompany (“VMU”), and\n, a licensee of Virgin Enterprises Ltd., and a ___ corporation (the “Company”).\nRECITALS\nA. VMU may disclose valuable proprietary information to the Company relating to VMU’s Stash Card program (the “Stash Program”).\nB. VMU and the Company want to protect the confidentiality of, maintain their respective rights in, and prevent the unauthorized use and\ndisclosure of such information.\nVMU and the Company hereby agree as follows:\n1. Confidential Information. As used in this Agreement, “Confidential Information” means all information, currently existing or subsequently\ncreated during the term of the relationship between the parties, that a party and/or any of its Affiliates owns or controls that is not generally publicly\navailable, whether of a technical, business or other nature (including but not limited to (a) financial information, including pricing; (b) technical\ninformation, including research, development, specifications, procedures, algorithms, data, designs, and know-how; and (c) business information,\nincluding operations, objectives, management, assets, results, planning, marketing, timing, strategic partners, customers and products), that is\ndisclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) or that is otherwise learned by the Receiving Party, in\neither case in the course of the discussions or business dealings with the Disclosing Party that are the subject of this Agreement, and which has been\nidentified as being confidential or which the Receiving Party knows or has reason to know by the nature of the circumstances surrounding the\ndisclosure or receipt ought to be treated as confidential.\n2. Use and Ownership of Confidential Information. The Receiving Party, except as expressly provided in this Agreement, will not disclose\nConfidential Information to anyone other than its Representatives (as defined in Section 7 below) who have a need to know without the Disclosing\nParty’s prior written consent. In addition, the Receiving Party will not use, or permit others to use, Confidential Information for any purpose other\nthan its evaluation of a potential business opportunity between the parties and, if desired by the parties, negotiation and consummation of a business\ntransaction between the parties pursuant to a definitive agreement.\nThe Receiving Party will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of the Disclosing Party’s Confidential\nInformation, including, at a minimum, those measures it takes to protect its own confidential information of a similar nature. All Confidential\nInformation will remain the exclusive property of the Disclosing Party, and the Receiving Party will have no rights, by license or otherwise, to use\nthe Disclosing Party’s Confidential Information except as expressly provided herein.\n3. Exceptions. The obligations of Section 2 with respect to confidentiality and use will not apply to any information which (i) at the time of\ndisclosure was or thereafter becomes publicly\nVI\navailable without breach of this Agreement; (ii) was rightfully known to the Receiving Party prior to its receipt from the Disclosing Party; (iii) is\nrightfully received from a third party that, to the knowledge of the Receiving Party, did not acquire or disclose such information by a wrongful or\ntortious act; or (iv) was developed by the Receiving Party without reference to or use of any Confidential Information of the Disclosing Party.\n4. Disclosures to Governmental Entities. If the Receiving Party becomes legally obligated to disclose Confidential Information of the Disclosing\nParty by law, regulation or any governmental entity with jurisdiction over it, including any court of competent jurisdiction, the Receiving Party will\ngive the Disclosing Party prompt written notice. Such notice must include, without limitation, identification of the information to be so disclosed and\na copy of the order or reference to applicable law or regulation. The Receiving Party will disclose only such information as it reasonably deems is\nlegally required and will use reasonable efforts to obtain confidential treatment for any Confidential Information that is so disclosed.\n5. Compliance with Export Laws. Both parties will comply with all United States export control laws and regulations as they currently exist and as\nthey may be amended from time to time that are applicable to Confidential Information.\n6. No Required Disclosure or Warranties. Nothing in this Agreement shall be construed as an obligation for either party to disclose information or\nevaluation materials to the other party. The Disclosing Party shall not be considered to have made or make any representation or warranty as to the\naccuracy or completeness of any information provided hereunder. The Receiving Party and its Affiliates will be responsible for conducting and\ncompleting its own independent investigation, evaluation and due diligence relative to engaging in a transaction with the Disclosing Party.\n7. Receiving Party Representatives. The Receiving Party will restrict the possession, knowledge, development and use of Confidential Information\nof the Disclosing Party to its employees, directors, officers, consultants, lawyers, and entities controlled by or controlling it (collectively,\n“Representatives”) who have a need to know Confidential Information in connection with the purposes set forth in Section 2 and who are under\nobligations restricting disclosure and use of such Confidential Information consistent with the requirements of this Agreement. The Receiving\nParty’s Representatives will have access only to the Confidential Information they need for such purposes. The Receiving Party will be liable for any\nbreach of this Agreement by its Representatives and will promptly notify the Disclosing Party of any such breach.\n8. Return of Confidential Information. In the event that the parties determine not to proceed with discussions with respect to the business\nopportunity or upon the Disclosing Party’s written request at any time, the Receiving Party will promptly return or destroy (or, in the case of\nelectronic embodiments, permanently erase) all tangible material embodying Confidential Information (in any form and including, without\nlimitation, all summaries, copies and excerpts of Confidential Information) in its possession or under its control.\n9. Independent Development. The Disclosing Party acknowledges that the Receiving Party may currently or in the future be developing products or\ninformation internally, or receiving\nVII\ninformation from or having products or information developed by other parties, that are similar to the Confidential Information. Accordingly, except\nfor its express obligations under this Agreement with respect to Confidential Information of the Disclosing Party, nothing in this Agreement will be\nconstrued as restricting the Receiving Party from developing or having developed for it products, concepts, systems or techniques that are similar to\nor compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information.\n10. Injunctive Relief. The Receiving Party acknowledges that disclosure or use of Disclosing Party’s Confidential Information in violation of this\nAgreement may cause irreparable harm to the Disclosing Party for which monetary damages may be difficult to ascertain or an inadequate remedy.\nThe Receiving Party therefore agrees that the Disclosing Party will be entitled, in addition to its other rights and remedies, to such injunctive or\nequitable relief for any violation of this Agreement as may be deemed proper by a court of competent jurisdiction.\n11. Limited Relationship. This Agreement does not create a joint venture, partnership or other formal business relationship or entity of any kind, or\nan obligation to form any such relationship or entity. Each party will act as an independent contractor and not as an agent of the other party for any\npurpose, and neither will have the authority to bind the other in the absence of a definitive agreement governing the prospective transaction.\n12. Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof\nand supersedes all prior oral and written understandings with respect to such subject matter. This Agreement may be amended or modified only with\nthe mutual written consent of the parties.\n13. Term and Termination. Subject to the provisions below regarding expiration and termination, the terms of this Agreement shall remain in full\nforce notwithstanding the completion of the parties’ evaluations or the achievement or abandonment of the purpose of this Agreement, the\ntermination of the parties’ relationship, or the return of all tangible materials embodying Confidential Information. This Agreement is intended to\ncover Confidential Information disclosed or received by either party prior or subsequent to the date of this Agreement in the course of the\ndiscussions or business dealings that are the subject of this Agreement. Either party may terminate this Agreement by giving the other party written\nnotice of termination at the address set forth in the signature blocks below (except that in the case of VMU, such notice shall be marked to the\nattention of General Counsel), and unless otherwise earlier terminated, this Agreement will automatically expire two (2) years from the date first\nwritten above; provided that each party’s obligations under Sections 2, 4 and 7 (subject to the exceptions of Section 3) with respect to the other\nparty’s Confidential Information disclosed or received prior to termination or expiration will survive for two (2) additional years following the\nexpiration or termination of this Agreement, and the provisions of Sections 5-6 and 8-16 shall survive any such expiration or termination.\n14. Nonwaiver. It is understood that any failure or delay by either party to enforce such party’s rights, powers or privileges hereunder, including,\nwithout limitation, the other party’s strict performance of any provision of this Agreement, will not constitute a waiver of its right to subsequently\nenforce such provision or any other provision of this Agreement.\nVIII\n15. Attorney Fees. In the event any court action is commenced by one party against the other with respect to this Agreement, the substantially\nprevailing party will be entitled to recover its out-of-pocket and court costs and reasonable attorney fees.\n16. Miscellaneous. This Agreement will be governed by laws of the State of New York, may be executed in counterpart copies, and, in the absence\nof an original signature, faxed signatures will be considered the equivalent of an original signature. Each party hereby waives its right to a jury trial\nfor any claims that may arise out of this Agreement. If a provision of this Agreement is held invalid under any applicable law, such invalidity will\nnot affect any other provision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this\nAgreement will be deemed enforceable to the fullest extent permissible under applicable law, and, when necessary, the court is requested to reform\nany and all terms or conditions to give them such effect. Neither party may assign or transfer this Agreement or any of its duties under this\nAgreement without the other party’s prior written consent, except that each party may assign this Agreement to an Affiliate or a successor entity in\nconnection with a public offering of securities, but no such assignment shall relieve the assigning party of its obligations hereunder. Any assignment\nor attempted assignment without the required prior written consent shall be void. The terms of this Agreement shall be binding upon and shall inure\nto the benefit of the successors and permitted assigns of the parties hereto.\nThe parties have executed this Agreement on the date first written above.\nVirgin Mobile USA, LLC\nBy:\nName:\nTitle:\nDate:\nMailing Address:\n10 Independence Blvd.\nWarren, New Jersey 07059\nCompany:\nBy:\nName:\nTitle:\nDate:\nMailing Address:\nIX EXHIBIT A\nNONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this “Agreement”) is dated as of ___, 200__, between Virgin Mobile USA, LLC, a Delaware limited liability\ncompany (“VMU”), and , a licensee of Virgin Enterprises Ltd., and a ___ corporation (the “Company”).\nRECITALS\nA. VMU may disclose valuable proprietary information to the Company relating to VMU’s Stash Card program (the “Stash Program”).\nB. VMU and the Company want to protect the confidentiality of, maintain their respective rights in, and prevent the unauthorized use and\ndisclosure of such information.\nVMU and the Company hereby agree as follows:\n1. Confidential Information. As used in this Agreement, “Confidential Information” means all information, currently existing or subsequently\ncreated during the term of the relationship between the parties, that a party and/or any of its Affiliates owns or controls that is not generally publicly\navailable, whether of a technical, business or other nature (including but not limited to (a) financial information, including pricing; (b) technical\ninformation, including research, development, specifications, procedures, algorithms, data, designs, and know-how; and (c) business information,\nincluding operations, objectives, management, assets, results, planning, marketing, timing, strategic partners, customers and products), that is\ndisclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) or that is otherwise learned by the Receiving Party, in\neither case in the course of the discussions or business dealings with the Disclosing Party that are the subject of this Agreement, and which has been\nidentified as being confidential or which the Receiving Party knows or has reason to know by the nature of the circumstances surrounding the\ndisclosure or receipt ought to be treated as confidential.\n2. Use and Ownership of Confidential Information. The Receiving Party, except as expressly provided in this Agreement, will not disclose\nConfidential Information to anyone other than its Representatives (as defined in Section 7 below) who have a need to know without the Disclosing\nParty’s prior written consent. In addition, the Receiving Party will not use, or permit others to use, Confidential Information for any purpose other\nthan its evaluation of a potential business opportunity between the parties and, if desired by the parties, negotiation and consummation of a business\ntransaction between the parties pursuant to a definitive agreement.\nThe Receiving Party will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of the Disclosing Party’s Confidential\nInformation, including, at a minimum, those measures it takes to protect its own confidential information of a similar nature. All Confidential\nInformation will remain the exclusive property of the Disclosing Party, and the Receiving Party will have no rights, by license or otherwise, to use\nthe Disclosing Party’s Confidential Information except as expressly provided herein.\n3. Exceptions. The obligations of Section 2 with respect to confidentiality and use will not apply to any information which (i) at the time of\ndisclosure was or thereafter becomes publicly\nVI\navailable without breach of this Agreement; (ii) was rightfully known to the Receiving Party prior to its receipt from the Disclosing Party; (iii) is\nrightfully received from a third party that, to the knowledge of the Receiving Party, did not acquire or disclose such information by a wrongful or\ntortious act; or (iv) was developed by the Receiving Party without reference to or use of any Confidential Information of the Disclosing Party.\n4. Disclosures to Governmental Entities. If the Receiving Party becomes legally obligated to disclose Confidential Information of the Disclosing\nParty by law, regulation or any governmental entity with jurisdiction over it, including any court of competent jurisdiction, the Receiving Party will\ngive the Disclosing Party prompt written notice. Such notice must include, without limitation, identification of the information to be so disclosed and\na copy of the order or reference to applicable law or regulation. The Receiving Party will disclose only such information as it reasonably deems is\nlegally required and will use reasonable efforts to obtain confidential treatment for any Confidential Information that is so disclosed.\n5. Compliance with Export Laws. Both parties will comply with all United States export control laws and regulations as they currently exist and as\nthey may be amended from time to time that are applicable to Confidential Information.\n6. No Required Disclosure or Warranties. Nothing in this Agreement shall be construed as an obligation for either party to disclose information or\nevaluation materials to the other party. The Disclosing Party shall not be considered to have made or make any representation or warranty as to the\naccuracy or completeness of any information provided hereunder. The Receiving Party and its Affiliates will be responsible for conducting and\ncompleting its own independent investigation, evaluation and due diligence relative to engaging in a transaction with the Disclosing Party.\n7. Receiving Party Representatives. The Receiving Party will restrict the possession, knowledge, development and use of Confidential Information\nof the Disclosing Party to its employees, directors, officers, consultants, lawyers, and entities controlled by or controlling it (collectively,\n“Representatives”) who have a need to know Confidential Information in connection with the purposes set forth in Section 2 and who are under\nobligations restricting disclosure and use of such Confidential Information consistent with the requirements of this Agreement. The Receiving\nParty’s Representatives will have access only to the Confidential Information they need for such purposes. The Receiving Party will be liable for any\nbreach of this Agreement by its Representatives and will promptly notify the Disclosing Party of any such breach.\n8. Return of Confidential Information. In the event that the parties determine not to proceed with discussions with respect to the business\nopportunity or upon the Disclosing Party’s written request at any time, the Receiving Party will promptly return or destroy (or, in the case of\nelectronic embodiments, permanently erase) all tangible material embodying Confidential Information (in any form and including, without\nlimitation, all summaries, copies and excerpts of Confidential Information) in its possession or under its control.\n9. Independent Development. The Disclosing Party acknowledges that the Receiving Party may currently or in the future be developing products or\ninformation internally, or receiving\nVII\ninformation from or having products or information developed by other parties, that are similar to the Confidential Information. Accordingly, except\nfor its express obligations under this Agreement with respect to Confidential Information of the Disclosing Party, nothing in this Agreement will be\nconstrued as restricting the Receiving Party from developing or having developed for it products, concepts, systems or techniques that are similar to\nor compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information.\n10. Injunctive Relief. The Receiving Party acknowledges that disclosure or use of Disclosing Party’s Confidential Information in violation of this\nAgreement may cause irreparable harm to the Disclosing Party for which monetary damages may be difficult to ascertain or an inadequate remedy.\nThe Receiving Party therefore agrees that the Disclosing Party will be entitled, in addition to its other rights and remedies, to such injunctive or\nequitable relief for any violation of this Agreement as may be deemed proper by a court of competent jurisdiction.\n11. Limited Relationship. This Agreement does not create a joint venture, partnership or other formal business relationship or entity of any kind, or\nan obligation to form any such relationship or entity. Each party will act as an independent contractor and not as an agent of the other party for any\npurpose, and neither will have the authority to bind the other in the absence of a definitive agreement governing the prospective transaction.\n12. Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof\nand supersedes all prior oral and written understandings with respect to such subject matter. This Agreement may be amended or modified only with\nthe mutual written consent of the parties.\n13. Term and Termination. Subject to the provisions below regarding expiration and termination, the terms of this Agreement shall remain in full\nforce notwithstanding the completion of the parties’ evaluations or the achievement or abandonment of the purpose of this Agreement, the\ntermination of the parties’ relationship, or the return of all tangible materials embodying Confidential Information. This Agreement is intended to\ncover Confidential Information disclosed or received by either party prior or subsequent to the date of this Agreement in the course of the\ndiscussions or business dealings that are the subject of this Agreement. Either party may terminate this Agreement by giving the other party written\nnotice of termination at the address set forth in the signature blocks below (except that in the case of VMU, such notice shall be marked to the\nattention of General Counsel), and unless otherwise earlier terminated, this Agreement will automatically expire two (2) years from the date first\nwritten above; provided that each party’s obligations under Sections 2, 4 and 7 (subject to the exceptions of Section 3) with respect to the other\nparty’s Confidential Information disclosed or received prior to termination or expiration will survive for two (2) additional years following the\nexpiration or termination of this Agreement, and the provisions of Sections 5-6 and 8-16 shall survive any such expiration or termination.\n14. Nonwaiver. It is understood that any failure or delay by either party to enforce such party’s rights, powers or privileges hereunder, including,\nwithout limitation, the other party’s strict performance of any provision of this Agreement, will not constitute a waiver of its right to subsequently\nenforce such provision or any other provision of this Agreement.\nVIII\n15. Attorney Fees. In the event any court action is commenced by one party against the other with respect to this Agreement, the substantially\nprevailing party will be entitled to recover its out-of-pocket and court costs and reasonable attorney fees.\n16. Miscellaneous. This Agreement will be governed by laws of the State of New York, may be executed in counterpart copies, and, in the absence\nof an original signature, faxed signatures will be considered the equivalent of an original signature. Each party hereby waives its right to a jury trial\nfor any claims that may arise out of this Agreement. If a provision of this Agreement is held invalid under any applicable law, such invalidity will\nnot affect any other provision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this\nAgreement will be deemed enforceable to the fullest extent permissible under applicable law, and, when necessary, the court is requested to reform\nany and all terms or conditions to give them such effect. Neither party may assign or transfer this Agreement or any of its duties under this\nAgreement without the other party’s prior written consent, except that each party may assign this Agreement to an Affiliate or a successor entity in\nconnection with a public offering of securities, but no such assignment shall relieve the assigning party of its obligations hereunder. Any assignment\nor attempted assignment without the required prior written consent shall be void. The terms of this Agreement shall be binding upon and shall inure\nto the benefit of the successors and permitted assigns of the parties hereto.\nThe parties have executed this Agreement on the date first written above.\nVirgin Mobile USA, LLC\nBy:\nName:\nTitle:\nDate:\nMailing Address:\n10 Independence Blvd.\nWarren, New Jersey 07059\nCompany:\nBy:\nName:\nTitle:\nDate:\nMailing Address:\nIX EXHIBIT A\nNONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this "Agreement") is dated as of 200_, between Virgin Mobile USA, LLC, a Delaware limited liability\ncompany ("VMU"), and a licensee of Virgin Enterprises Ltd., and a corporation (the "Company").\nRECITALS\nA. VMU may disclose valuable proprietary information to the Company relating to VMU's Stash Card program (the "Stash Program").\nB.\nVMU and the Company want to protect the confidentiality of, maintain their respective rights in, and prevent the unauthorized use and\ndisclosure of such information.\nVMU and the Company hereby agree as follows:\n1. Confidential Information. As used in this Agreement, "Confidential Information" means all information, currently existing or subsequently\ncreated during the term of the relationship between the parties, that a party and/or any of its Affiliates owns or controls that is not generally publicly\navailable, whether of a technical, business or other nature (including but not limited to (a) financial information, including pricing; (b) technical\ninformation, including research, development, specifications, procedures, algorithms, data, designs, and know-how; and (c) business information,\nincluding operations, objectives, management, assets, results, planning, marketing, timing, strategic partners, customers and products), that is\ndisclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party") or that is otherwise learned by the Receiving Party, in\neither case in the course of the discussions or business dealings with the Disclosing Party that are the subject of this Agreement, and which has been\nidentified as being confidential or which the Receiving Party knows or has reason to know by the nature of the circumstances surrounding the\ndisclosure or receipt ought to be treated as confidential.\n2. Use and Ownership of Confidential Information. The Receiving Party, except as expressly provided in this Agreement, will not disclose\nConfidential Information to anyone other than its Representatives (as defined in Section 7 below) who have a need to know without the Disclosing\nParty's prior written consent. In addition, the Receiving Party will not use, or permit others to use, Confidential Information for any purpose other\nthan its evaluation of a potential business opportunity between the parties and, if desired by the parties, negotiation and consummation of a business\ntransaction between the parties pursuant to a definitive agreement.\nThe Receiving Party will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of the Disclosing Party's Confidential\nInformation, including, at a minimum, those measures it takes to protect its own confidential information of a similar nature. All Confidential\nInformation will remain the exclusive property of the Disclosing Party, and the Receiving Party will have no rights, by license or otherwise, to use\nthe Disclosing Party's Confidential Information except as expressly provided herein.\n3. Exceptions. The obligations of Section 2 with respect to confidentiality and use will not apply to any information which (i) at the time of\ndisclosure was or thereafter becomes publicly\nVI\navailable without breach of this Agreement; (ii) was rightfully known to the Receiving Party prior to its receipt from the Disclosing Party; (iii)\nis\nrightfully received from a third party that, to the knowledge of the Receiving Party, did not acquire or disclose such information by a wrongful\nor\ntortious act; or (iv) was developed by the Receiving Party without reference to or use of any Confidential Information of the Disclosing Party.\n4. Disclosures to Governmental Entities. If the Receiving Party becomes legally obligated to disclose Confidential Information of the Disclosing\nParty by law, regulation or any governmental entity with jurisdiction over it, including any court of competent jurisdiction, the Receiving Party will\ngive the Disclosing Party prompt written notice. Such notice must include, without limitation, identification of the information to be so disclosed and\na\ncopy of the order or reference to applicable law or regulation. The Receiving Party will disclose only such information as it reasonably deems is\nlegally required and will use reasonable efforts to obtain confidential treatment for any Confidential Information that is so disclosed.\n5. Compliance with Export Laws. Both parties will comply with all United States export control laws and regulations as they currently exist and as\nthey may be amended from time to time that are applicable to Confidential Information.\n6. No Required Disclosure or Warranties. Nothing in this Agreement shall be construed as an obligation for either party to disclose information or\nevaluation materials to the other party. The Disclosing Party shall not be considered to have made or make any representation or warranty as to the\naccuracy or completeness of any information provided hereunder. The Receiving Party and its Affiliates will be responsible for conducting and\ncompleting its own independent investigation, evaluation and due diligence relative to engaging in a transaction with the Disclosing Party.\n7. Receiving Party Representatives. The Receiving Party will restrict the possession, knowledge, development and use of Confidential Information\nof the Disclosing Party to its employees, directors, officers, consultants, lawyers, and entities controlled by or controlling it (collectively,\n"Representatives") who have a need to know Confidential Information in connection with the purposes set forth in Section 2 and who are under\nobligations restricting disclosure and use of such Confidential Information consistent with the requirements of this Agreement. The Receiving\nParty's Representatives will have access only to the Confidential Information they need for such purposes. The Receiving Party will be liable for any\nbreach of this Agreement by its Representatives and will promptly notify the Disclosing Party of any such breach.\n8. Return of Confidential Information. In the event that the parties determine not to proceed with discussions with respect to the business\nopportunity or upon the Disclosing Party's written request at any time, the Receiving Party will promptly return or destroy (or, in the case of\nelectronic embodiments, permanently erase) all tangible material embodying Confidential Information (in any form and including, without\nlimitation, all summaries, copies and excerpts of Confidential Information) in its possession or under its control.\n9.\nIndependent Development. The Disclosing Party acknowledges that the Receiving Party may currently or in the future be developing products or\ninformation internally, or receiving\nVII\ninformation from or having products or information developed by other parties, that are similar to the Confidential Information. Accordingly, except\nfor its express obligations under this Agreement with respect to Confidential Information of the Disclosing Party, nothing in this Agreement will\nbe\nconstrued as restricting the Receiving Party from developing or having developed for it products, concepts, systems or techniques that are similar\nto\nor compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information.\n10. Injunctive Relief. The Receiving Party acknowledges that disclosure or use of Disclosing Party's Confidential Information in violation of this\nAgreement may cause irreparable harm to the Disclosing Party for which monetary damages may be difficult to ascertain or an inadequate remedy.\nThe Receiving Party therefore agrees that the Disclosing Party will be entitled, in addition to its other rights and remedies, to such injunctive\nor\nequitable relief for any violation of this Agreement as may be deemed proper by a court of competent jurisdiction.\n11. Limited Relationship. This Agreement does not create a joint venture, partnership or other formal business relationship or entity of any kind,\nor\nan obligation to form any such relationship or entity. Each party will act as an independent contractor and not as an agent of the other party for any\npurpose, and neither will have the authority to bind the other in the absence of a definitive agreement governing the prospective transaction.\n12. Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof\nand supersedes all prior oral and written understandings with respect to such subject matter. This Agreement may be amended or modified only with\nthe mutual written consent of the parties.\n13. Term and Termination. Subject to the provisions below regarding expiration and termination, the terms of this Agreement shall remain in full\nforce notwithstanding the completion of the parties' evaluations or the achievement or abandonment of the purpose of this Agreement, the\ntermination of the parties' relationship, or the return of all tangible materials embodying Confidential Information. This Agreement is intended to\ncover Confidential Information disclosed or received by either party prior or subsequent to the date of this Agreement in the course of the\ndiscussions or business dealings that are the subject of this Agreement. Either party may terminate this Agreement by giving the other party written\nnotice of termination at the address set forth in the signature blocks below (except that in the case of VMU, such notice shall be marked to the\nattention of General Counsel), and unless otherwise earlier terminated, this Agreement will automatically expire two (2) years from the date first\nwritten above; provided that each party's obligations under Sections 2, 4 and 7 (subject to the exceptions of Section 3) with respect to the other\nparty's Confidential Information disclosed or received prior to termination or expiration will survive for two (2) additional years following the\nexpiration or termination of this Agreement, and the provisions of Sections 5-6 and 8-16 shall survive any such expiration or termination\n14. Nonwaiver. It is understood that any failure or delay by either party to enforce such party's rights, powers or privileges hereunder, including,\nwithout limitation, the other party's strict performance of any provision of this Agreement, will not constitute a waiver of its right to subsequently\nenforce such provision or any other provision of this Agreement.\nVIII\n15. Attorney Fees. In the event any court action is commenced by one party against the other with respect to this Agreement, the substantially\nprevailing party will be entitled to recover its out-of-pocket and court costs and reasonable attorney fees.\n16. Miscellaneous. This Agreement will be governed by laws of the State of New York, may be executed in counterpart copies, and, in the absence\nof an original signature, faxed signatures will be considered the equivalent of an original signature. Each party hereby waives its right to a jury trial\nfor any claims that may arise out of this Agreement. If a provision of this Agreement is held invalid under any applicable law, such invalidity\nwill\nnot affect any other provision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this\nAgreement will be deemed enforceable to the fullest extent permissible under applicable law, and, when necessary, the court is requested to reform\nany and all terms or conditions to give them such effect. Neither party may assign or transfer this Agreement or any of its duties under this\nAgreement without the other party's prior written consent, except that each party may assign this Agreement to an Affiliate or a successor entity in\nconnection with a public offering of securities, but no such assignment shall relieve the assigning party of its obligations hereunder. Any assignment\nor attempted assignment without the required prior written consent shall be void. The terms of this Agreement shall be binding upon and shall inure\nto the benefit of the successors and permitted assigns of the parties hereto.\nThe parties have executed this Agreement on the date first written above.\nVirgin Mobile USA, LLC\nBy:\nName:\nTitle:\nDate:\nMailing Address:\n10 Independence Blvd.\nWarren, New Jersey 07059\nCompany:\nBy:\nName:\nTitle:\nDate:\nMailing Address:\nIX EXHIBIT A\nNONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this “Agreement”) is dated as of ___ , 200__, between Virgin Mobile USA, LLC, a Delaware limited liability\ncompany (“VMU”), and\n, a licensee of Virgin Enterprises Ltd., and a ___ corporation (the “Company”).\nRECITALS\nA. VMU may disclose valuable proprietary information to the Company relating to VMU’s Stash Card program (the “Stash Program”).\nB. VMU and the Company want to protect the confidentiality of, maintain their respective rights in, and prevent the unauthorized use and\ndisclosure of such information.\nVMU and the Company hereby agree as follows:\n1. Confidential Information. As used in this Agreement, “Confidential Information” means all information, currently existing or subsequently\ncreated during the term of the relationship between the parties, that a party and/or any of its Affiliates owns or controls that is not generally publicly\navailable, whether of a technical, business or other nature (including but not limited to (a) financial information, including pricing; (b) technical\ninformation, including research, development, specifications, procedures, algorithms, data, designs, and know-how; and (c) business information,\nincluding operations, objectives, management, assets, results, planning, marketing, timing, strategic partners, customers and products), that is\ndisclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) or that is otherwise learned by the Receiving Party, in\neither case in the course of the discussions or business dealings with the Disclosing Party that are the subject of this Agreement, and which has been\nidentified as being confidential or which the Receiving Party knows or has reason to know by the nature of the circumstances surrounding the\ndisclosure or receipt ought to be treated as confidential.\n2. Use and Ownership of Confidential Information. The Receiving Party, except as expressly provided in this Agreement, will not disclose\nConfidential Information to anyone other than its Representatives (as defined in Section 7 below) who have a need to know without the Disclosing\nParty’s prior written consent. In addition, the Receiving Party will not use, or permit others to use, Confidential Information for any purpose other\nthan its evaluation of a potential business opportunity between the parties and, if desired by the parties, negotiation and consummation of a business\ntransaction between the parties pursuant to a definitive agreement.\nThe Receiving Party will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of the Disclosing Party’s Confidential\nInformation, including, at a minimum, those measures it takes to protect its own confidential information of a similar nature. All Confidential\nInformation will remain the exclusive property of the Disclosing Party, and the Receiving Party will have no rights, by license or otherwise, to use\nthe Disclosing Party’s Confidential Information except as expressly provided herein.\n3. Exceptions. The obligations of Section 2 with respect to confidentiality and use will not apply to any information which (i) at the time of\ndisclosure was or thereafter becomes publicly\nVI\navailable without breach of this Agreement; (ii) was rightfully known to the Receiving Party prior to its receipt from the Disclosing Party; (iii) is\nrightfully received from a third party that, to the knowledge of the Receiving Party, did not acquire or disclose such information by a wrongful or\ntortious act; or (iv) was developed by the Receiving Party without reference to or use of any Confidential Information of the Disclosing Party.\n4. Disclosures to Governmental Entities. If the Receiving Party becomes legally obligated to disclose Confidential Information of the Disclosing\nParty by law, regulation or any governmental entity with jurisdiction over it, including any court of competent jurisdiction, the Receiving Party will\ngive the Disclosing Party prompt written notice. Such notice must include, without limitation, identification of the information to be so disclosed and\na copy of the order or reference to applicable law or regulation. The Receiving Party will disclose only such information as it reasonably deems is\nlegally required and will use reasonable efforts to obtain confidential treatment for any Confidential Information that is so disclosed.\n5. Compliance with Export Laws. Both parties will comply with all United States export control laws and regulations as they currently exist and as\nthey may be amended from time to time that are applicable to Confidential Information.\n6. No Required Disclosure or Warranties. Nothing in this Agreement shall be construed as an obligation for either party to disclose information or\nevaluation materials to the other party. The Disclosing Party shall not be considered to have made or make any representation or warranty as to the\naccuracy or completeness of any information provided hereunder. The Receiving Party and its Affiliates will be responsible for conducting and\ncompleting its own independent investigation, evaluation and due diligence relative to engaging in a transaction with the Disclosing Party.\n7. Receiving Party Representatives. The Receiving Party will restrict the possession, knowledge, development and use of Confidential Information\nof the Disclosing Party to its employees, directors, officers, consultants, lawyers, and entities controlled by or controlling it (collectively,\n“Representatives”) who have a need to know Confidential Information in connection with the purposes set forth in Section 2 and who are under\nobligations restricting disclosure and use of such Confidential Information consistent with the requirements of this Agreement. The Receiving\nParty’s Representatives will have access only to the Confidential Information they need for such purposes. The Receiving Party will be liable for any\nbreach of this Agreement by its Representatives and will promptly notify the Disclosing Party of any such breach.\n8. Return of Confidential Information. In the event that the parties determine not to proceed with discussions with respect to the business\nopportunity or upon the Disclosing Party’s written request at any time, the Receiving Party will promptly return or destroy (or, in the case of\nelectronic embodiments, permanently erase) all tangible material embodying Confidential Information (in any form and including, without\nlimitation, all summaries, copies and excerpts of Confidential Information) in its possession or under its control.\n9. Independent Development. The Disclosing Party acknowledges that the Receiving Party may currently or in the future be developing products or\ninformation internally, or receiving\nVII\ninformation from or having products or information developed by other parties, that are similar to the Confidential Information. Accordingly, except\nfor its express obligations under this Agreement with respect to Confidential Information of the Disclosing Party, nothing in this Agreement will be\nconstrued as restricting the Receiving Party from developing or having developed for it products, concepts, systems or techniques that are similar to\nor compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information.\n10. Injunctive Relief. The Receiving Party acknowledges that disclosure or use of Disclosing Party’s Confidential Information in violation of this\nAgreement may cause irreparable harm to the Disclosing Party for which monetary damages may be difficult to ascertain or an inadequate remedy.\nThe Receiving Party therefore agrees that the Disclosing Party will be entitled, in addition to its other rights and remedies, to such injunctive or\nequitable relief for any violation of this Agreement as may be deemed proper by a court of competent jurisdiction.\n11. Limited Relationship. This Agreement does not create a joint venture, partnership or other formal business relationship or entity of any kind, or\nan obligation to form any such relationship or entity. Each party will act as an independent contractor and not as an agent of the other party for any\npurpose, and neither will have the authority to bind the other in the absence of a definitive agreement governing the prospective transaction.\n12. Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof\nand supersedes all prior oral and written understandings with respect to such subject matter. This Agreement may be amended or modified only with\nthe mutual written consent of the parties.\n13. Term and Termination. Subject to the provisions below regarding expiration and termination, the terms of this Agreement shall remain in full\nforce notwithstanding the completion of the parties’ evaluations or the achievement or abandonment of the purpose of this Agreement, the\ntermination of the parties’ relationship, or the return of all tangible materials embodying Confidential Information. This Agreement is intended to\ncover Confidential Information disclosed or received by either party prior or subsequent to the date of this Agreement in the course of the\ndiscussions or business dealings that are the subject of this Agreement. Either party may terminate this Agreement by giving the other party written\nnotice of termination at the address set forth in the signature blocks below (except that in the case of VMU, such notice shall be marked to the\nattention of General Counsel), and unless otherwise earlier terminated, this Agreement will automatically expire two (2) years from the date first\nwritten above; provided that each party’s obligations under Sections 2, 4 and 7 (subject to the exceptions of Section 3) with respect to the other\nparty’s Confidential Information disclosed or received prior to termination or expiration will survive for two (2) additional years following the\nexpiration or termination of this Agreement, and the provisions of Sections 5-6 and 8-16 shall survive any such expiration or termination.\n14. Nonwaiver. It is understood that any failure or delay by either party to enforce such party’s rights, powers or privileges hereunder, including,\nwithout limitation, the other party’s strict performance of any provision of this Agreement, will not constitute a waiver of its right to subsequently\nenforce such provision or any other provision of this Agreement.\nVIII\n15. Attorney Fees. In the event any court action is commenced by one party against the other with respect to this Agreement, the substantially\nprevailing party will be entitled to recover its out-of-pocket and court costs and reasonable attorney fees.\n16. Miscellaneous. This Agreement will be governed by laws of the State of New York, may be executed in counterpart copies, and, in the absence\nof an original signature, faxed signatures will be considered the equivalent of an original signature. Each party hereby waives its right to a jury trial\nfor any claims that may arise out of this Agreement. If a provision of this Agreement is held invalid under any applicable law, such invalidity will\nnot affect any other provision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this\nAgreement will be deemed enforceable to the fullest extent permissible under applicable law, and, when necessary, the court is requested to reform\nany and all terms or conditions to give them such effect. Neither party may assign or transfer this Agreement or any of its duties under this\nAgreement without the other party’s prior written consent, except that each party may assign this Agreement to an Affiliate or a successor entity in\nconnection with a public offering of securities, but no such assignment shall relieve the assigning party of its obligations hereunder. Any assignment\nor attempted assignment without the required prior written consent shall be void. The terms of this Agreement shall be binding upon and shall inure\nto the benefit of the successors and permitted assigns of the parties hereto.\nThe parties have executed this Agreement on the date first written above.\nVirgin Mobile USA, LLC\nBy:\nName:\nTitle:\nDate:\nMailing Address:\n10 Independence Blvd.\nWarren, New Jersey 07059\nCompany:\nBy:\nName:\nTitle:\nDate:\nMailing Address:\nIX 3e1a3a5f4a419e58024088fb81964bca.pdf effective_date jurisdiction party term EX-99.(D)(2) 10 d319057dex99d2.htm CONFIDENTIALITY AGREEMENT, EFFECTIVE AS OF JANUARY 25,\n2012\nExhibit (d)(2)\nPERSONAL AND CONFIDENTIAL\nJanuary 25, 2012\nAsahi Kasei Corporation\n1-105 Kanda Jinbocho,\nChiyoda-ku, Tokyo 101-8101\nJapan\nAttn: Koji Fujiwara, Director & Primary Executive Officer\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction (the “Possible Transaction”) with ZOLL Medical Corporation (the “Company”), you\nhave requested information concerning the Company and its subsidiaries and affiliates. You acknowledge that this information is confidential and\nproprietary and may include trade secrets or other business information the disclosure of which could harm the Company and its subsidiaries. In\nconsideration for, and as a condition to, such information being made available to you and your Representatives, you agree to treat any information,\nwhether written or oral, concerning the Company or any of its subsidiaries, affiliates or divisions (whether prepared by the Company, its advisors or\notherwise) that is furnished to you by or on behalf of the Company (herein collectively referred to as the “Evaluation Material”) in accordance with\nthe provisions of this letter agreement and to take or abstain from taking certain other actions herein set forth. The term “Evaluation Material”\nincludes, without limitation, all notes, analyses, compilations, Excel spread sheets, data, reports, studies, interpretations or other documents furnished\nto you or your Representatives (as defined below) or prepared by you or your Representatives to the extent such materials reflect or are based upon,\nin whole or in part, the Evaluation Material so furnished to you or your Representatives, and all “Confidential Information” of the Company under\nthe Mutual Nondisclosure Agreement, dated October 6, 2011, between you and the Company (the “Previous Nondisclosure Agreement”). The term\n“Evaluation Material” does not include information that (a) is or becomes available to you on a nonconfidential basis from a source other than the\nCompany or its Representatives; provided that such source is not known by you to be bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation to, the Company that prohibits such disclosure, (b) is or becomes generally available to the public other than\nas a result of a disclosure by you or your Representatives in violation of this letter agreement, or (c) has been or is independently developed by you\nor your Representatives without the use of the Evaluation Material or in violation of the terms of this letter agreement or the Previous Nondisclosure\nAgreement. For purposes of this letter agreement the term “Representatives” shall include your and your Affiliates’ directors, officers, employees,\nattorneys, accountants, financial advisors, consultants and other professional representatives and shall also include any of your sources of senior\nand/or subordinated debt financing. For purposes of this letter agreement the term “Affiliates” has the meaning given to it in Rule 12b-2 of the\nSecurities Exchange Act of 1934, as amended.\nYou hereby agree that the Evaluation Material will be kept confidential and used solely for the purpose of evaluating and negotiating the Possible\nTransaction between the Company and you and your Affiliates; provided, however, that the Evaluation Material may be disclosed (i) to your\nAffiliates and any of your Representatives who need to know such information for the sole purpose of evaluating and negotiating a Possible\nTransaction, and (ii) as the Company may otherwise consent in writing. All such Representatives and Affiliates shall (A) be informed by you of the\nconfidential nature of the Evaluation Material, (B) agree to keep the Evaluation Material strictly confidential, and (C) be advised of the terms of this\nletter agreement and agree to be bound by the terms hereof to the same extent as if they were parties to this letter agreement. You agree to be\nresponsible for any breaches of any of the provisions of this letter agreement by any of your Affiliates and Representatives (it being understood that\nsuch responsibility shall be in addition to and not by way of limitation of any right or remedy the Company may have against your Affiliates and\nRepresentatives with respect to such breach) and you agree to take all reasonable measures to restrain your Representatives from disclosure or\nimproper use of the Evaluation Material or from breaching or threatening to breach any other provision of this Agreement.\nYou hereby acknowledge that you, your Affiliates and your Representatives are aware that the Evaluation Material may contain material, non-public\ninformation about the Company and you hereby agree that you, your Affiliates and your Representatives will not purchase or sell any securities of\nthe Company while in possession of such information.\nNeither the Company nor you shall, and the Company and you each agree to cause your respective Affiliates and representatives, including in the\nCompany’s case, the Banker, not to, disclose without the written consent of the other party hereto, directly or indirectly, to any person (including any\ngovernmental agency, authority or official or any third party) either the fact that discussions or negotiations are taking place concerning a Possible\nTransaction with you or any of the terms, conditions or other facts with respect to a Possible Transaction with you, including the status thereof or\nthat Evaluation Material has been made available to you; provided that you and the Company may make such disclosures without the consent of the\nother party hereto if you are required to do so under applicable law or the applicable rules or regulations of any securities exchange or similar self-\nregulatory organization. Without limiting the generality of the foregoing, you further agree that you will not, directly or indirectly, share the\nEvaluation Material with or enter into any agreement, arrangement or understanding, or any discussions which would reasonably be expected to lead\nto such an agreement, arrangement or understanding with any other person, including other potential bidders regarding a Possible Transaction\ninvolving the Company without the prior written consent of the Company and only upon such person executing a confidentiality agreement in favor\nof the Company with terms and conditions consistent with this Agreement.\nNotwithstanding the foregoing, in the event you or any of your Affiliates or Representatives receive a request or are required (by deposition,\ninterrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose all or any part of the Evaluation Materials,\nyou or your Affiliates or Representatives, as the case may be, agree to (a) immediately notify the Company of the existence, terms and circumstances\nsurrounding such request or required disclosure, (b) consult with the Company on the advisability of taking legally available steps to resist or narrow\nsuch request or required disclosure, and (c) cooperate with the\nPage 2\nCompany, at the Company’s expense, in seeking a protective order or other appropriate remedy. In the event that such protective order or other\nremedy is not obtained or that the Company waives compliance with the provisions hereof, (i) you or your Affiliates or Representatives, as the case\nmay be, may disclose to any tribunal only that portion of the Evaluation Materials which you or your Affiliates or Representatives are advised by\ncounsel (in such counsel’s written opinion) is legally required to be disclosed, and you or your Affiliates or Representatives shall exercise reasonable\nbest efforts to obtain assurance that confidential treatment will be accorded such Evaluation Materials, and (ii) you or your Affiliates or\nRepresentatives shall not be liable for such disclosure. Further, notwithstanding anything in this paragraph to the contrary, you may make such\ndisclosures if you are required to do so under applicable law or the applicable rules or regulations of any securities exchange or similar self-\nregulatory organization.\nUnless otherwise agreed to by the Company in writing, (a) all communications regarding the Possible Transaction, (b) requests for additional\ninformation, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the\nPossible Transaction, will be submitted or directed exclusively to John P. Molner or Ivan A. Pirzada of Brown Brothers Harriman & Co. (the\n“Banker”). Contact information for the appropriate Banker representatives is included in Exhibit A to this letter agreement.\nYou agree that, for a period of two (2) years from the date hereof, neither you nor any of your Affiliates will, directly or indirectly, solicit for\nemployment or employ or cause to leave the employ of the Company or any of its subsidiaries any individual serving as (a) an officer of the\nCompany or any of its subsidiaries or (b) any employee of the Company or any of its subsidiaries with whom you have had contact, or who is\nspecifically identified to you, during your investigation of the Company and its business, in each case without obtaining the prior written consent of\nthe Company; provided that nothing herein shall restrict or preclude you from (A) making generalized solicitations or broad-based searches for\nemployees, (B) continuing your ordinary course hiring practices that are not targeted specifically at employees of the Company or (C) responding to\nany employee of the Company who contacts you regarding his or her own employment with you on his or her own initiative without any direct\nsolicitation by you other than any generalized search or ordinary course practice referred to in clause (A) or (B) above.\nYou hereby acknowledge that, unless otherwise agreed in writing by the Company, for a period of one (1) year from the date of this letter agreement,\nneither you nor any of your Representatives or Affiliates acting on your behalf or on behalf of other persons acting in concert with you will in any\nmanner, directly or indirectly: (a) propose, offer or effect (whether publicly or otherwise) (i) any merger, consolidation, business combination, tender\nor exchange offer, purchase of the Company’s material assets outside the ordinary course of business, stock or businesses, or similar transactions\ninvolving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company\n(collectively, a transaction specified in (a)(i) and (a)(ii) is referred to as a “Business Combination”); (b) (i) acquire “beneficial ownership” (as such\nterm is used in the rules of the Securities and Exchange Commission) of any securities (including in derivative form) of the Company, (ii) propose or\nseek, whether alone or in concert with others, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange\nCommission) or consents to vote any securities of the Company, (iii) nominate any person as a director of the Company, or (iv) propose any matter\nto be voted upon by the stockholders of the Company; (c)\nPage 3\ndirectly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange\nCommission) (or discuss with any third party the potential formation of a group) with respect to any securities of the Company or a Business\nCombination involving the Company; or (d) take any action that could require the Company to make a public announcement regarding a potential\nBusiness Combination or any of the matters referred to in this paragraph; provided, however, that the restrictions set forth in this paragraph shall\nterminate immediately upon the public announcement by the Company or by a third party that the Company has entered into a definitive agreement\nwith such third party for a transaction involving a Business Combination. You also agree during such one (1) year period not to request, or solicit or\ninduce another person to request, the Company (or any of its Representatives), directly or indirectly, to amend, waive or publicize any provision of\nthis paragraph (including this sentence). Notwithstanding the foregoing, nothing in this Agreement shall limit your ability to make or submit in a\nconfidential, non-public manner to the board of directors of the Company, a bona fide written proposal relating to a Business Combination so long as\nyou do not make, or cause to be made, any public disclosure regarding such action and such action would not violate clause (d) above. You further\nagree that, subject to any applicable confidentiality or other similar restrictions, if at any time during such period, you or any of your Affiliates or\nRepresentatives are approached by any third party concerning your or their participation in a transaction involving any assets, indebtedness or\nbusiness of, or securities issued by, the Company or any of its subsidiaries, you will promptly inform the Company of the nature of such transaction\nand the parties involved.\nAlthough the Company has endeavored and will endeavor to include in the Evaluation Material information which it believes to be relevant for the\npurpose of your investigation, you understand that none of the Company, the Banker, or their respective Affiliates or Representatives have made or\nmake any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material in connection with matters\ncontemplated hereby. Only those representations and warranties that may be made to you in a definitive written agreement for a Possible\nTransaction, when, as and if executed and subject to such limitations and restrictions as may be specified therein, shall have any legal effect, and you\nagree that if you determine to engage in a Possible Transaction such determination will be based solely on the terms of such definitive written\nagreement and on your own investigation, analysis and assessment of the Possible Transaction. Except as provided in any such definitive written\nagreement, neither the Company nor any of its Affiliates or representatives shall have any liability to you or any other party, including, without\nlimitation, your Representatives, resulting from the use or selection of, or reliance on, Evaluation Material by you, your Affiliates or Representatives,\nother than as expressly provided herein.\nUpon the Company’s (directly or through the Banker) demand, you shall either promptly (a) destroy the Evaluation Material and any copies thereof,\nor (b) return to the Company all Evaluation Material and any copies thereof, and, in either case, confirm in writing to the Company that all such\nmaterial has been destroyed or returned, as applicable, in compliance with this letter agreement. It is understood that information in an intangible or\nelectronic format containing Evaluation Materials cannot be removed, erased or otherwise deleted from archival systems (also known as “computer\nor system back-ups”) but that such information will continue to be protected under the confidentiality requirements contained in this Agreement and\nyou and such Affiliates and Representatives shall continue to be bound by the obligations of\nPage 4\nconfidentiality hereunder. Notwithstanding the foregoing, you, your Affiliates and your Representatives may retain (i) one copy of any work product\nprepared by you or them that contains Evaluation Material to the extent required under applicable legal or regulatory requirements and (ii) one copy\nof the Evaluation Material at your outside legal counsels’ office to the extent required by your document retention policies; provided that you and\nsuch Affiliates and Representatives shall continue to be bound by the obligations of confidentiality hereunder.\nYou acknowledge and agree that money damages would not be a sufficient remedy for any breach (or threatened breach) of this letter agreement by\nyou or your Affiliates or Representatives and that the Company shall be entitled to equitable relief, including injunction and specific performance, as\na remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to\ncause its Affiliates and Representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such\nremedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law or in\nequity.\nYou agree that unless and until a definitive agreement between the Company and you with respect to the Possible Transaction has been executed and\ndelivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to any transaction by virtue of this or\nany written or oral expression with respect to any Possible Transaction by any of its Affiliates and Representatives except for the matters specifically\nagreed to herein. For purposes of this letter agreement, the term “definitive agreement” does not include an executed letter of intent or any other\npreliminary written agreement, nor does it include any oral acceptance of an offer or bid by you. The agreement set forth in this paragraph may be\nmodified or waived only by a separate writing by the Company and you expressly so modifying or waiving such agreement.\nYou agree that this letter agreement supersedes all prior or contemporaneous agreements (including the Previous Nondisclosure Agreement),\nnegotiations or understandings between the parties regarding the subject matters hereof.\nYou acknowledge that, subject to the terms of this letter agreement, unless and until a definitive written agreement is entered into, (a) the Company\nand the Banker shall be free to conduct the process for a transaction as they in their sole discretion shall determine, (b) any procedures relating to\nsuch transaction may be changed at any time without notice to you or any other person, and (c) you shall not have any claims whatsoever against the\nCompany, the Banker or any of their respective Representatives arising out of or relating to a Possible Transaction.\nNo failure or delay by the Company or any of its representatives, on the one hand, or you or any of your Affiliates or Representatives, on the other\nhand, in exercising any right, power or privilege under this letter agreement shall operate as a waiver thereof, and no modification hereof shall be\neffective, unless in writing and signed by an officer of the Company and/or you or other authorized person on its/your behalf.\nPage 5\nThe illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its legality, validity or\nenforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other provision.\nExcept as otherwise provided in this letter agreement, the obligations hereunder shall terminate five years from the date hereof.\nThis letter agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts. The parties hereby\nirrevocably and unconditionally consent to the exclusive jurisdiction of the courts in the Commonwealth of Massachusetts and the United States\nDistrict Court for the District of the Commonwealth of Massachusetts for any action, suit or proceeding arising out of or relating to this letter\nagreement or the Possible Transaction, except as may otherwise be agreed in writing by the parties in the course of the Possible Transaction, and\nagree not to commence any action, suit or proceeding related thereto except in such courts.\nThis letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the\nsame agreement. One or more counterparts of this letter agreement may be delivered by telecopier or pdf electronic transmission, with the intention\nthat they shall have the same effect as an original counterpart hereof.\n[Signature Page Follows]\nPage 6\nVery truly yours,\nZOLL MEDICAL CORPORATION\nBy: /s/ Richard A. Packer\nName: Richard A. Packer\nTitle: CEO\nConfirmed and Agreed to:\nASAHI KASEI CORPORATION\nBy: /s/ Koji Fujiwara\nName: Koji Fujiwara\nTitle: Director & Primary Executive Officer\nEXHIBIT A\nBrown Brothers Harriman & Co. Contact Information\nAll inquiries should be directed to any of the individuals listed below.\n, Partner\nBrown Brothers Harriman & Co\n140 Broadway\nNew York, NY 10005-1101\nPhone:\nFax:\nEmail:\n, Senior Vice President\nBrown Brothers Harriman & Co.\n40 Water Street\nBoston, MA 02109\nPhone:\nFax:\nEmail: EX-99.(D)(2) 10 d319057dex99d2.htm CONFIDENTIALITY AGREEMENT, EFFECTIVE AS OF JANUARY 25,\n2012\nExhibit (d)(2)\nPERSONAL AND CONFIDENTIAL\nJanuary 25, 2012\nAsahi Kasei Corporation\n1-105 Kanda Jinbocho,\nChiyoda-ku, Tokyo 101-8101\nJapan\nAttn: Koji Fujiwara, Director & Primary Executive Officer\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction (the “Possible Transaction”) with ZOLL Medical Corporation (the “Company”), you\nhave requested information concerning the Company and its subsidiaries and affiliates. You acknowledge that this information is confidential and\nproprietary and may include trade secrets or other business information the disclosure of which could harm the Company and its subsidiaries. In\nconsideration for, and as a condition to, such information being made available to you and your Representatives, you agree to treat any information,\nwhether written or oral, concerning the Company or any of its subsidiaries, affiliates or divisions (whether prepared by the Company, its advisors or\notherwise) that is furnished to you by or on behalf of the Company (herein collectively referred to as the “Evaluation Material”) in accordance with\nthe provisions of this letter agreement and to take or abstain from taking certain other actions herein set forth. The term “Evaluation Material”\nincludes, without limitation, all notes, analyses, compilations, Excel spread sheets, data, reports, studies, interpretations or other documents furnished\nto you or your Representatives (as defined below) or prepared by you or your Representatives to the extent such materials reflect or are based upon,\nin whole or in part, the Evaluation Material so furnished to you or your Representatives, and all “Confidential Information” of the Company under\nthe Mutual Nondisclosure Agreement, dated October 6, 2011, between you and the Company (the “Previous Nondisclosure Agreement”). The term\n“Evaluation Material” does not include information that (a) is or becomes available to you on a nonconfidential basis from a source other than the\nCompany or its Representatives; provided that such source is not known by you to be bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation to, the Company that prohibits such disclosure, (b) is or becomes generally available to the public other than\nas a result of a disclosure by you or your Representatives in violation of this letter agreement, or (c) has been or is independently developed by you\nor your Representatives without the use of the Evaluation Material or in violation of the terms of this letter agreement or the Previous Nondisclosure\nAgreement. For purposes of this letter agreement the term “Representatives” shall include your and your Affiliates’ directors, officers, employees,\nattorneys, accountants, financial advisors, consultants and other professional representatives and shall also include any of your sources of senior\nand/or subordinated debt financing. For purposes of this letter agreement the term “Affiliates” has the meaning given to it in Rule 12b-2 of the\nSecurities Exchange Act of 1934, as amended.\n \nYou hereby agree that the Evaluation Material will be kept confidential and used solely for the purpose of evaluating and negotiating the Possible\nTransaction between the Company and you and your Affiliates; provided, however, that the Evaluation Material may be disclosed (i) to your\nAffiliates and any of your Representatives who need to know such information for the sole purpose of evaluating and negotiating a Possible\nTransaction, and (ii) as the Company may otherwise consent in writing. All such Representatives and Affiliates shall (A) be informed by you of the\nconfidential nature of the Evaluation Material, (B) agree to keep the Evaluation Material strictly confidential, and (C) be advised of the terms of this\nletter agreement and agree to be bound by the terms hereof to the same extent as if they were parties to this letter agreement. You agree to be\nresponsible for any breaches of any of the provisions of this letter agreement by any of your Affiliates and Representatives (it being understood that\nsuch responsibility shall be in addition to and not by way of limitation of any right or remedy the Company may have against your Affiliates and\nRepresentatives with respect to such breach) and you agree to take all reasonable measures to restrain your Representatives from disclosure or\nimproper use of the Evaluation Material or from breaching or threatening to breach any other provision of this Agreement.\nYou hereby acknowledge that you, your Affiliates and your Representatives are aware that the Evaluation Material may contain material, non-public\ninformation about the Company and you hereby agree that you, your Affiliates and your Representatives will not purchase or sell any securities of\nthe Company while in possession of such information.\nNeither the Company nor you shall, and the Company and you each agree to cause your respective Affiliates and representatives, including in the\nCompany’s case, the Banker, not to, disclose without the written consent of the other party hereto, directly or indirectly, to any person (including any\ngovernmental agency, authority or official or any third party) either the fact that discussions or negotiations are taking place concerning a Possible\nTransaction with you or any of the terms, conditions or other facts with respect to a Possible Transaction with you, including the status thereof or\nthat Evaluation Material has been made available to you; provided that you and the Company may make such disclosures without the consent of the\nother party hereto if you are required to do so under applicable law or the applicable rules or regulations of any securities exchange or similar self-\nregulatory organization. Without limiting the generality of the foregoing, you further agree that you will not, directly or indirectly, share the\nEvaluation Material with or enter into any agreement, arrangement or understanding, or any discussions which would reasonably be expected to lead\nto such an agreement, arrangement or understanding with any other person, including other potential bidders regarding a Possible Transaction\ninvolving the Company without the prior written consent of the Company and only upon such person executing a confidentiality agreement in favor\nof the Company with terms and conditions consistent with this Agreement.\nNotwithstanding the foregoing, in the event you or any of your Affiliates or Representatives receive a request or are required (by deposition,\ninterrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose all or any part of the Evaluation Materials,\nyou or your Affiliates or Representatives, as the case may be, agree to (a) immediately notify the Company of the existence, terms and circumstances\nsurrounding such request or required disclosure, (b) consult with the Company on the advisability of taking legally available steps to resist or narrow\nsuch request or required disclosure, and (c) cooperate with the\nPage 2\nCompany, at the Company’s expense, in seeking a protective order or other appropriate remedy. In the event that such protective order or other\nremedy is not obtained or that the Company waives compliance with the provisions hereof, (i) you or your Affiliates or Representatives, as the case\nmay be, may disclose to any tribunal only that portion of the Evaluation Materials which you or your Affiliates or Representatives are advised by\ncounsel (in such counsel’s written opinion) is legally required to be disclosed, and you or your Affiliates or Representatives shall exercise reasonable\nbest efforts to obtain assurance that confidential treatment will be accorded such Evaluation Materials, and (ii) you or your Affiliates or\nRepresentatives shall not be liable for such disclosure. Further, notwithstanding anything in this paragraph to the contrary, you may make such\ndisclosures if you are required to do so under applicable law or the applicable rules or regulations of any securities exchange or similar self-\nregulatory organization.\nUnless otherwise agreed to by the Company in writing, (a) all communications regarding the Possible Transaction, (b) requests for additional\ninformation, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the\nPossible Transaction, will be submitted or directed exclusively to John P. Molner or Ivan A. Pirzada of Brown Brothers Harriman & Co. (the\n“Banker”). Contact information for the appropriate Banker representatives is included in Exhibit A to this letter agreement.\nYou agree that, for a period of two (2) years from the date hereof, neither you nor any of your Affiliates will, directly or indirectly, solicit for\nemployment or employ or cause to leave the employ of the Company or any of its subsidiaries any individual serving as (a) an officer of the\nCompany or any of its subsidiaries or (b) any employee of the Company or any of its subsidiaries with whom you have had contact, or who is\nspecifically identified to you, during your investigation of the Company and its business, in each case without obtaining the prior written consent of\nthe Company; provided that nothing herein shall restrict or preclude you from (A) making generalized solicitations or broad-based searches for\nemployees, (B) continuing your ordinary course hiring practices that are not targeted specifically at employees of the Company or (C) responding to\nany employee of the Company who contacts you regarding his or her own employment with you on his or her own initiative without any direct\nsolicitation by you other than any generalized search or ordinary course practice referred to in clause (A) or (B) above.\nYou hereby acknowledge that, unless otherwise agreed in writing by the Company, for a period of one (1) year from the date of this letter agreement,\nneither you nor any of your Representatives or Affiliates acting on your behalf or on behalf of other persons acting in concert with you will in any\nmanner, directly or indirectly: (a) propose, offer or effect (whether publicly or otherwise) (i) any merger, consolidation, business combination, tender\nor exchange offer, purchase of the Company’s material assets outside the ordinary course of business, stock or businesses, or similar transactions\ninvolving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company\n(collectively, a transaction specified in (a)(i) and (a)(ii) is referred to as a “Business Combination™); (b) (i) acquire “beneficial ownership” (as such\nterm is used in the rules of the Securities and Exchange Commission) of any securities (including in derivative form) of the Company, (ii) propose or\nseek, whether alone or in concert with others, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange\nCommission) or consents to vote any securities of the Company, (iii) nominate any person as a director of the Company, or (iv) propose any matter\nto be voted upon by the stockholders of the Company; (c)\nPage 3\ndirectly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange\nCommission) (or discuss with any third party the potential formation of a group) with respect to any securities of the Company or a Business\nCombination involving the Company; or (d) take any action that could require the Company to make a public announcement regarding a potential\nBusiness Combination or any of the matters referred to in this paragraph; provided, however, that the restrictions set forth in this paragraph shall\nterminate immediately upon the public announcement by the Company or by a third party that the Company has entered into a definitive agreement\nwith such third party for a transaction involving a Business Combination. You also agree during such one (1) year period not to request, or solicit or\ninduce another person to request, the Company (or any of its Representatives), directly or indirectly, to amend, waive or publicize any provision of\nthis paragraph (including this sentence). Notwithstanding the foregoing, nothing in this Agreement shall limit your ability to make or submit in a\nconfidential, non-public manner to the board of directors of the Company, a bona fide written proposal relating to a Business Combination so long as\nyou do not make, or cause to be made, any public disclosure regarding such action and such action would not violate clause (d) above. You further\nagree that, subject to any applicable confidentiality or other similar restrictions, if at any time during such period, you or any of your Affiliates or\nRepresentatives are approached by any third party concerning your or their participation in a transaction involving any assets, indebtedness or\nbusiness of, or securities issued by, the Company or any of its subsidiaries, you will promptly inform the Company of the nature of such transaction\nand the parties involved.\nAlthough the Company has endeavored and will endeavor to include in the Evaluation Material information which it believes to be relevant for the\npurpose of your investigation, you understand that none of the Company, the Banker, or their respective Affiliates or Representatives have made or\nmake any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material in connection with matters\ncontemplated hereby. Only those representations and warranties that may be made to you in a definitive written agreement for a Possible\nTransaction, when, as and if executed and subject to such limitations and restrictions as may be specified therein, shall have any legal effect, and you\nagree that if you determine to engage in a Possible Transaction such determination will be based solely on the terms of such definitive written\nagreement and on your own investigation, analysis and assessment of the Possible Transaction. Except as provided in any such definitive written\nagreement, neither the Company nor any of its Affiliates or representatives shall have any liability to you or any other party, including, without\nlimitation, your Representatives, resulting from the use or selection of, or reliance on, Evaluation Material by you, your Affiliates or Representatives,\nother than as expressly provided herein.\nUpon the Company’s (directly or through the Banker) demand, you shall either promptly (a) destroy the Evaluation Material and any copies thereof,\nor (b) return to the Company all Evaluation Material and any copies thereof, and, in either case, confirm in writing to the Company that all such\nmaterial has been destroyed or returned, as applicable, in compliance with this letter agreement. It is understood that information in an intangible or\nelectronic format containing Evaluation Materials cannot be removed, erased or otherwise deleted from archival systems (also known as “computer\nor system back-ups™) but that such information will continue to be protected under the confidentiality requirements contained in this Agreement and\nyou and such Affiliates and Representatives shall continue to be bound by the obligations of\nPage 4\nconfidentiality hereunder. Notwithstanding the foregoing, you, your Affiliates and your Representatives may retain (i) one copy of any work product\nprepared by you or them that contains Evaluation Material to the extent required under applicable legal or regulatory requirements and (ii) one copy\nof the Evaluation Material at your outside legal counsels’ office to the extent required by your document retention policies; provided that you and\nsuch Affiliates and Representatives shall continue to be bound by the obligations of confidentiality hereunder.\nYou acknowledge and agree that money damages would not be a sufficient remedy for any breach (or threatened breach) of this letter agreement by\nyou or your Affiliates or Representatives and that the Company shall be entitled to equitable relief, including injunction and specific performance, as\na remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to\ncause its Affiliates and Representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such\nremedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law or in\nequity.\nYou agree that unless and until a definitive agreement between the Company and you with respect to the Possible Transaction has been executed and\ndelivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to any transaction by virtue of this or\nany written or oral expression with respect to any Possible Transaction by any of its Affiliates and Representatives except for the matters specifically\nagreed to herein. For purposes of this letter agreement, the term “definitive agreement” does not include an executed letter of intent or any other\npreliminary written agreement, nor does it include any oral acceptance of an offer or bid by you. The agreement set forth in this paragraph may be\nmodified or waived only by a separate writing by the Company and you expressly so modifying or waiving such agreement.\nYou agree that this letter agreement supersedes all prior or contemporaneous agreements (including the Previous Nondisclosure Agreement),\nnegotiations or understandings between the parties regarding the subject matters hereof.\nYou acknowledge that, subject to the terms of this letter agreement, unless and until a definitive written agreement is entered into, (a) the Company\nand the Banker shall be free to conduct the process for a transaction as they in their sole discretion shall determine, (b) any procedures relating to\nsuch transaction may be changed at any time without notice to you or any other person, and (c) you shall not have any claims whatsoever against the\nCompany, the Banker or any of their respective Representatives arising out of or relating to a Possible Transaction.\nNo failure or delay by the Company or any of its representatives, on the one hand, or you or any of your Affiliates or Representatives, on the other\nhand, in exercising any right, power or privilege under this letter agreement shall operate as a waiver thereof, and no modification hereof shall be\neffective, unless in writing and signed by an officer of the Company and/or you or other authorized person on its/your behalf.\nPage 5\nThe illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its legality, validity or\nenforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other provision.\nExcept as otherwise provided in this letter agreement, the obligations hereunder shall terminate five years from the date hereof.\nThis letter agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts. The parties hereby\nirrevocably and unconditionally consent to the exclusive jurisdiction of the courts in the Commonwealth of Massachusetts and the United States\nDistrict Court for the District of the Commonwealth of Massachusetts for any action, suit or proceeding arising out of or relating to this letter\nagreement or the Possible Transaction, except as may otherwise be agreed in writing by the parties in the course of the Possible Transaction, and\nagree not to commence any action, suit or proceeding related thereto except in such courts.\nThis letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the\nsame agreement. One or more counterparts of this letter agreement may be delivered by telecopier or pdf electronic transmission, with the intention\nthat they shall have the same effect as an original counterpart hereof.\n[Signature Page Follows]\nPage 6\nVery truly yours,\nZOLL MEDICAL CORPORATION\nBy: /s/ Richard A. Packer\nName: Richard A. Packer\nTitle: CEO\nConfirmed and Agreed to:\nASAHI KASEI CORPORATION\nBy: /s/ Koji Fujiwara\nName: Koji Fujiwara\nTitle: Director & Primary Executive Officer\nEXHIBIT A\nBrown Brothers Harriman & Co. Contact Information\nAll inquiries should be directed to any of the individuals listed below.\n, Partner\nBrown Brothers Harriman & Co\n140 Broadway\nNew York, NY 10005-1101\nPhone:\nFax:\nEmail:\n, Senior Vice President\nBrown Brothers Harriman & Co.\n40 Water Street\nBoston, MA 02109\nPhone:\nFax:\nEmail: EX-99.(D)(2) 10 319057dex99d2.htm CONFIDENTIALITY AGREEMENT, EFFECTIVE AS OF JANUARY 25,\n2012\nExhibit (d)(2)\nPERSONAL AND CONFIDENTIAL\nJanuary 25, 2012\nAsahi Kasei Corporation\n1-105 Kanda Jinbocho,\nChiyoda-ku, Tokyo 101-8101\nJapan\nAttn: Koji Fujiwara, Director & Primary Executive Officer\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction (the "Possible Transaction") with ZOLL Medical Corporation (the "Company."), you\nhave requested information concerning the Company and its subsidiaries and affiliates. You acknowledge that this information is confidential and\nproprietary and may include trade secrets or other business information the disclosure of which could harm the Company and its subsidiaries.\nIn\nconsideration for, and as a condition to, such information being made available to you and your Representatives, you agree to treat any information,\nwhether written or oral, concerning the Company or any of its subsidiaries, affiliates or divisions (whether prepared by the Company, its advisors or\notherwise) that is furnished to you by or on behalf of the Company (herein collectively referred to as the "Evaluation Material") in accordance with\nthe provisions of this letter agreement and to take or abstain from taking certain other actions herein set forth. The term "Evaluation Material"\nincludes, without limitation, all notes, analyses, compilations, Excel spread sheets, data, reports, studies, interpretations or other documents furnished\nto you or your Representatives (as defined below) or prepared by you or your Representatives to the extent such materials reflect or are based upon,\nin whole or in part, the Evaluation Material so furnished to you or your Representatives, and all "Confidential Information" of the Company under\nthe Mutual Nondisclosure Agreement, dated October 6, 2011, between you and the Company (the "Previous Nondisclosure Agreement"). The\nterm\n"Evaluation Material" does not include information that (a) is or becomes available to you on a nonconfidential basis from a source other than the\nCompany or its Representatives; provided that such source is not known by you to be bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation to, the Company that prohibits such disclosure, (b) is or becomes generally available to the public other than\nas a result of a disclosure by you or your Representatives in violation of this letter agreement, or (c) has been or is independently developed by you\nor\nyour Representatives without the use of the Evaluation Material or in violation of the terms of this letter agreement or the Previous Nondisclosure\nAgreement. For purposes of this letter agreement the term "Representatives" shall include your and your Affiliates' directors, officers, employees,\nattorneys, accountants, financial advisors, consultants and other professional representatives and shall also include any of your sources of senior\nand/or subordinated debt financing. For purposes of this letter agreement the term "Affiliates" has the meaning given to it in Rule 12b-2 of the\nSecurities Exchange Act of 1934, as amended.\nYou hereby agree that the Evaluation Material will be kept confidential and used solely for the purpose of evaluating and negotiating the Possible\nTransaction between the Company and you and your Affiliates; provided, however, that the Evaluation Material may be disclosed (i) to your\nAffiliates and any of your Representatives who need to know such information for the sole purpose of evaluating and negotiating a Possible\nTransaction, and (ii) as the Company may otherwise consent in writing. All such Representatives and Affiliates shall (A) be informed by you of the\nconfidential nature of the Evaluation Material, (B) agree to keep the Evaluation Material strictly confidential, and (C) be advised of the terms of this\nletter agreement and agree to be bound by the terms hereof to the same extent as if they were parties to this letter agreement. You agree to be\nresponsible for any breaches of any of the provisions of this letter agreement by any of your Affiliates and Representatives (it being understood that\nsuch responsibility shall be in addition to and not by way of limitation of any right or remedy the Company may have against your Affiliates and\nRepresentatives with respect to such breach) and you agree to take all reasonable measures to restrain your Representatives from disclosure\nor\nimproper use of the Evaluation Material or from breaching or threatening to breach any other provision of this Agreement.\nYou hereby acknowledge that you, your Affiliates and your Representatives are aware that the Evaluation Material may contain material, non-public\ninformation about the Company and you hereby agree that you, your Affiliates and your Representatives will not purchase or sell any securities of\nthe Company while in possession of such information.\nNeither the Company nor you shall, and the Company and you each agree to cause your respective Affiliates and representatives, including in the\nCompany's case, the Banker, not to, disclose without the written consent of the other party hereto, directly or indirectly, to any person (including any\ngovernmental agency, authority or official or any third party) either the fact that discussions or negotiations are taking place concerning a Possible\nTransaction with you or any of the terms, conditions or other facts with respect to a Possible Transaction with you, including the status thereof or\nthat Evaluation Material has been made available to you; provided that you and the Company may make such disclosures without the consent of the\nother party hereto if you are required to do so under applicable law or the applicable rules or regulations of any securities exchange or similar\nself-\nregulatory organization. Without limiting the generality of the foregoing, you further agree that you will not, directly or indirectly, share the\nEvaluation Material with or enter into any agreement, arrangement or understanding, or any discussions which would reasonably be expected to\nlead\nto such an agreement, arrangement or understanding with any other person, including other potential bidders regarding a Possible Transaction\ninvolving the Company without the prior written consent of the Company and only upon such person executing a confidentiality agreement in favor\nof the Company with terms and conditions consistent with this Agreement.\nNotwithstanding the foregoing, in the event you or any of your Affiliates or Representatives receive a request or are required (by deposition,\ninterrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose all or any part of the Evaluation Materials,\nyou\nor your Affiliates or Representatives, as the case may be, agree to (a) immediately notify the Company of the existence, terms and circumstances\nsurrounding such request or required disclosure, (b) consult with the Company on the advisability of taking legally available steps to resist or narrow\nsuch request or required disclosure, and (c) cooperate with the\nPage 2\nCompany, at the Company's expense, in seeking a protective order or other appropriate remedy. In the event that such protective order or other\nremedy is not obtained or that the Company waives compliance with the provisions hereof, (i) you or your Affiliates or Representatives, as the case\nmay be, may disclose to any tribunal only that portion of the Evaluation Materials which you or your Affiliates or Representatives are advised\nby\ncounsel (in such counsel's written opinion) is legally required to be disclosed, and you or your Affiliates or Representatives shall exercise reasonable\nbest efforts to obtain assurance that confidential treatment will be accorded such Evaluation Materials, and (ii) you or your Affiliates or\nRepresentatives shall not be liable for such disclosure. Further, notwithstanding anything in this paragraph to the contrary, you may make such\ndisclosures if you are required to do so under applicable law or the applicable rules or regulations of any securities exchange or similar self-\nregulatory organization.\nUnless otherwise agreed to by the Company in writing, (a) all communications regarding the Possible Transaction, (b) requests for additional\ninformation, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of\nthe\nPossible Transaction, will be submitted or directed exclusively to John P. Molner or Ivan A. Pirzada of Brown Brothers Harriman & Co. (the\n"Banker"). Contact information for the appropriate Banker representatives is included in Exhibit A to this letter agreement.\nYou agree that, for a period of two (2) years from the date hereof, neither you nor any of your Affiliates will, directly or indirectly, solicit for\nemployment or employ or cause to leave the employ of the Company or any of its subsidiaries any individual serving as (a) an officer of the\nCompany or any of its subsidiaries or (b) any employee of the Company or any of its subsidiaries with whom you have had contact, or who\nis\nspecifically identified to you, during your investigation of the Company and its business, in each case without obtaining the prior written consent\nof\nthe Company; provided that nothing herein shall restrict or preclude you from (A) making generalized solicitations or broad-based searches for\nemployees, (B) continuing your ordinary course hiring practices that are not targeted specifically at employees of the Company or (C) responding\nto\nany employee of the Company who contacts you regarding his or her own employment with you on his or her own initiative without any direct\nsolicitation by you other than any generalized search or ordinary course practice referred to in clause (A) or (B) above.\nYou hereby acknowledge that, unless otherwise agreed in writing by the Company, for a period of one (1) year from the date of this letter agreement,\nneither you nor any of your Representatives or Affiliates acting on your behalf or on behalf of other persons acting in concert with you will in any\nmanner, directly or indirectly: (a) propose, offer or effect (whether publicly or otherwise) (i) any merger, consolidation, business combination, tender\nor exchange offer, purchase of the Company's material assets outside the ordinary course of business, stock or businesses, or similar transactions\ninvolving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company\n(collectively, a transaction specified in (a)(i) and (a)(ii is referred to as a "Business Combination"); (b) (i) acquire "beneficial ownership" (as such\nterm is used in the rules of the Securities and Exchange Commission) of any securities (including in derivative form) of the Company, (ii) propose\nor\nseek, whether alone or in concert with others, any "solicitation" of "proxies" (as such terms are used in the rules of the Securities and Exchange\nCommission) or consents to vote any securities of the Company, (iii) nominate any person as a director of the Company, or (iv) propose any matter\nto be voted upon by the stockholders of the Company; (c)\nPage 3\ndirectly or indirectly, form, join or in any way participate in a third party "group" (as such term is used in the rules of the Securities and Exchange\nCommission) (or discuss with any third party the potential formation of a group) with respect to any securities of the Company or a Business\nCombination involving the Company; or (d) take any action that could require the Company to make a public announcement regarding a potential\nBusiness Combination or any of the matters referred to in this paragraph; provided, however, that the restrictions set forth in this paragraph shall\nterminate immediately upon the public announcement by the Company or by a third party that the Company has entered into a definitive agreement\nwith such third party for a transaction involving a Business Combination. You also agree during such one (1) year period not to request, or solicit\nor\ninduce another person to request, the Company (or any of its Representatives), directly or indirectly, to amend, waive or publicize any provision of\nthis paragraph (including this sentence). Notwithstanding the foregoing, nothing in this Agreement shall limit your ability to make or submit in\na\nconfidential, non-public manner to the board of directors of the Company, a bona fide written proposal relating to a Business Combination so long as\nyou do not make, or cause to be made, any public disclosure regarding such action and such action would not violate clause (d) above. You further\nagree that, subject to any applicable confidentiality or other similar restrictions, if at any time during such period, you or any of your Affiliates\nor\nRepresentatives are approached by any third party concerning your or their participation in a transaction involving any assets, indebtedness or\nbusiness of, or securities issued by, the Company or any of its subsidiaries, you will promptly inform the Company of the nature of such transaction\nand the parties involved.\nAlthough the Company has endeavored and will endeavor to include in the Evaluation Material information which it believes to be relevant for the\npurpose of your investigation, you understand that none of the Company, the Banker, or their respective Affiliates or Representatives have made or\nmake any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material in connection with matters\ncontemplated hereby. Only those representations and warranties that may be made to you in a definitive written agreement for a Possible\nTransaction, when, as and if executed and subject to such limitations and restrictions as may be specified therein, shall have any legal effect, and\nyou\nagree that if you determine to engage in a Possible Transaction such determination will be based solely on the terms of such definitive written\nagreement and on your own investigation, analysis and assessment of the Possible Transaction. Except as provided in any such definitive written\nagreement, neither the Company nor any of its Affiliates or representatives shall have any liability to you or any other party, including, without\nlimitation, your Representatives, resulting from the use or selection of, or reliance on, Evaluation Material by you, your Affiliates or Representatives,\nother than as expressly provided herein.\nUpon the Company's (directly or through the Banker) demand, you shall either promptly (a) destroy the Evaluation Material and any copies thereof,\nor (b) return to the Company all Evaluation Material and any copies thereof, and, in either case, confirm in writing to the Company that all such\nmaterial has been destroyed or returned, as applicable, in compliance with this letter agreement. It is understood that information in an intangible or\nelectronic format containing Evaluation Materials cannot be removed, erased or otherwise deleted from archival systems (also known as "computer\nor system back-ups") but that such information will continue to be protected under the confidentiality requirements contained in this Agreement and\nyou and such Affiliates and Representatives shall continue to be bound by the obligations of\nPage 4\nconfidentiality hereunder. Notwithstanding the foregoing, you, your Affiliates and your Representatives may retain (i) one copy of any work product\nprepared by you or them that contains Evaluation Material to the extent required under applicable legal or regulatory requirements and (ii) one copy\nof the Evaluation Material at your outside legal counsels' office to the extent required by your document retention policies; provided that you and\nsuch Affiliates and Representatives shall continue to be bound by the obligations of confidentiality hereunder.\nYou acknowledge and agree that money damages would not be a sufficient remedy for any breach (or threatened breach) of this letter\nagreement\nby\nyou or your Affiliates or Representatives and that the Company shall be entitled to equitable relief, including injunction and specific performance, as\na remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to\ncause its Affiliates and Representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such\nremedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law or\nin\nequity.\nYou agree that unless and until a definitive agreement between the Company and you with respect to the Possible Transaction has been executed and\ndelivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to any transaction by virtue of this or\nany written or oral expression with respect to any Possible Transaction by any of its Affiliates and Representatives except for the matters specifically\nagreed to herein. For purposes of this letter agreement, the term "definitive agreement" does not include an executed letter of intent or any other\npreliminary written agreement, nor does it include any oral acceptance of an offer or bid by you. The agreement set forth in this paragraph may be\nmodified or waived only by a separate writing by the Company and you expressly so modifying or waiving such agreement.\nYou agree that this letter agreement supersedes all prior or contemporaneous agreements (including the Previous Nondisclosure Agreement),\nnegotiations or understandings between the parties regarding the subject matters hereof.\nYou acknowledge that, subject to the terms of this letter agreement, unless and until a definitive written agreement is entered into, (a) the Company\nand the Banker shall be free to conduct the process for a transaction as they in their sole discretion shall determine, (b) any procedures relating to\nsuch transaction may be changed at any time without notice to you or any other person, and (c) you shall not have any claims whatsoever against the\nCompany, the Banker or any of their respective Representatives arising out of or relating to a Possible Transaction.\nNo\nfailure or delay by the Company or any of its representatives, on the one hand, or you or any of your Affiliates or Representatives, on the other\nhand, in exercising any right, power or privilege under this letter agreement shall operate as a waiver thereof, and no modification hereof shall be\neffective, unless in writing and signed by an officer of the Company and/or you or other authorized person on its/your behalf.\nPage 5\nThe illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its legality, validity or\nenforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other provision.\nExcept as otherwise provided in this letter agreement, the obligations hereunder shall terminate five years from the date hereof.\nThis letter agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts. The parties hereby\nirrevocably and unconditionally consent to the exclusive jurisdiction of the courts in the Commonwealth of Massachusetts and the United States\nDistrict Court for the District of the Commonwealth of Massachusetts for any action, suit or proceeding arising out of or relating to this letter\nagreement or the Possible Transaction, except as may otherwise be agreed in writing by the parties in the course of the Possible Transaction, and\nagree not to commence any action, suit or proceeding related thereto except in such courts.\nThis letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the\nsame agreement. One or more counterparts of this letter agreement may be delivered by telecopier or pdf electronic transmission, with the intention\nthat they shall have the same effect as an original counterpart hereof.\n[Signature Page Follows]\nPage 6\nVery truly yours,\nZOLL MEDICAL CORPORATION\nBy: /s/ Richard A. Packer\nName: Richard A. Packer\nTitle: CEO\nConfirmed and Agreed to:\nASAHI KASEI CORPORATION\nBy: /s/ Koji Fujiwara\nName: Koji Fujiwara\nTitle: Director & Primary Executive Officer\nEXHIBIT A\nBrown Brothers Harriman & Co. Contact Information\nAll inquiries should be directed to any of the individuals listed below.\n> Partner\nBrown Brothers Harriman & Co\n140 Broadway\nNew York, NY 10005-1101\nPhone:\nFax:\nEmail:\n> Senior Vice President\nBrown Brothers Harriman & Co.\n40 Water Street\nBoston, MA 02109\nPhone:\nFax:\nEmail: EX-99.(D)(2) 10 d319057dex99d2.htm CONFIDENTIALITY AGREEMENT, EFFECTIVE AS OF JANUARY 25,\n2012\nExhibit (d)(2)\nPERSONAL AND CONFIDENTIAL\nJanuary 25, 2012\nAsahi Kasei Corporation\n1-105 Kanda Jinbocho,\nChiyoda-ku, Tokyo 101-8101\nJapan\nAttn: Koji Fujiwara, Director & Primary Executive Officer\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction (the “Possible Transaction”) with ZOLL Medical Corporation (the “Company”), you\nhave requested information concerning the Company and its subsidiaries and affiliates. You acknowledge that this information is confidential and\nproprietary and may include trade secrets or other business information the disclosure of which could harm the Company and its subsidiaries. In\nconsideration for, and as a condition to, such information being made available to you and your Representatives, you agree to treat any information,\nwhether written or oral, concerning the Company or any of its subsidiaries, affiliates or divisions (whether prepared by the Company, its advisors or\notherwise) that is furnished to you by or on behalf of the Company (herein collectively referred to as the “Evaluation Material”) in accordance with\nthe provisions of this letter agreement and to take or abstain from taking certain other actions herein set forth. The term “Evaluation Material”\nincludes, without limitation, all notes, analyses, compilations, Excel spread sheets, data, reports, studies, interpretations or other documents furnished\nto you or your Representatives (as defined below) or prepared by you or your Representatives to the extent such materials reflect or are based upon,\nin whole or in part, the Evaluation Material so furnished to you or your Representatives, and all “Confidential Information” of the Company under\nthe Mutual Nondisclosure Agreement, dated October 6, 2011, between you and the Company (the “Previous Nondisclosure Agreement”). The term\n“Evaluation Material” does not include information that (a) is or becomes available to you on a nonconfidential basis from a source other than the\nCompany or its Representatives; provided that such source is not known by you to be bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation to, the Company that prohibits such disclosure, (b) is or becomes generally available to the public other than\nas a result of a disclosure by you or your Representatives in violation of this letter agreement, or (c) has been or is independently developed by you\nor your Representatives without the use of the Evaluation Material or in violation of the terms of this letter agreement or the Previous Nondisclosure\nAgreement. For purposes of this letter agreement the term “Representatives” shall include your and your Affiliates’ directors, officers, employees,\nattorneys, accountants, financial advisors, consultants and other professional representatives and shall also include any of your sources of senior\nand/or subordinated debt financing. For purposes of this letter agreement the term “Affiliates” has the meaning given to it in Rule 12b-2 of the\nSecurities Exchange Act of 1934, as amended.\nYou hereby agree that the Evaluation Material will be kept confidential and used solely for the purpose of evaluating and negotiating the Possible\nTransaction between the Company and you and your Affiliates; provided, however, that the Evaluation Material may be disclosed (i) to your\nAffiliates and any of your Representatives who need to know such information for the sole purpose of evaluating and negotiating a Possible\nTransaction, and (ii) as the Company may otherwise consent in writing. All such Representatives and Affiliates shall (A) be informed by you of the\nconfidential nature of the Evaluation Material, (B) agree to keep the Evaluation Material strictly confidential, and (C) be advised of the terms of this\nletter agreement and agree to be bound by the terms hereof to the same extent as if they were parties to this letter agreement. You agree to be\nresponsible for any breaches of any of the provisions of this letter agreement by any of your Affiliates and Representatives (it being understood that\nsuch responsibility shall be in addition to and not by way of limitation of any right or remedy the Company may have against your Affiliates and\nRepresentatives with respect to such breach) and you agree to take all reasonable measures to restrain your Representatives from disclosure or\nimproper use of the Evaluation Material or from breaching or threatening to breach any other provision of this Agreement.\nYou hereby acknowledge that you, your Affiliates and your Representatives are aware that the Evaluation Material may contain material, non-public\ninformation about the Company and you hereby agree that you, your Affiliates and your Representatives will not purchase or sell any securities of\nthe Company while in possession of such information.\nNeither the Company nor you shall, and the Company and you each agree to cause your respective Affiliates and representatives, including in the\nCompany’s case, the Banker, not to, disclose without the written consent of the other party hereto, directly or indirectly, to any person (including any\ngovernmental agency, authority or official or any third party) either the fact that discussions or negotiations are taking place concerning a Possible\nTransaction with you or any of the terms, conditions or other facts with respect to a Possible Transaction with you, including the status thereof or\nthat Evaluation Material has been made available to you; provided that you and the Company may make such disclosures without the consent of the\nother party hereto if you are required to do so under applicable law or the applicable rules or regulations of any securities exchange or similar self-\nregulatory organization. Without limiting the generality of the foregoing, you further agree that you will not, directly or indirectly, share the\nEvaluation Material with or enter into any agreement, arrangement or understanding, or any discussions which would reasonably be expected to lead\nto such an agreement, arrangement or understanding with any other person, including other potential bidders regarding a Possible Transaction\ninvolving the Company without the prior written consent of the Company and only upon such person executing a confidentiality agreement in favor\nof the Company with terms and conditions consistent with this Agreement.\nNotwithstanding the foregoing, in the event you or any of your Affiliates or Representatives receive a request or are required (by deposition,\ninterrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose all or any part of the Evaluation Materials,\nyou or your Affiliates or Representatives, as the case may be, agree to (a) immediately notify the Company of the existence, terms and circumstances\nsurrounding such request or required disclosure, (b) consult with the Company on the advisability of taking legally available steps to resist or narrow\nsuch request or required disclosure, and (c) cooperate with the\nPage 2\nCompany, at the Company’s expense, in seeking a protective order or other appropriate remedy. In the event that such protective order or other\nremedy is not obtained or that the Company waives compliance with the provisions hereof, (i) you or your Affiliates or Representatives, as the case\nmay be, may disclose to any tribunal only that portion of the Evaluation Materials which you or your Affiliates or Representatives are advised by\ncounsel (in such counsel’s written opinion) is legally required to be disclosed, and you or your Affiliates or Representatives shall exercise reasonable\nbest efforts to obtain assurance that confidential treatment will be accorded such Evaluation Materials, and (ii) you or your Affiliates or\nRepresentatives shall not be liable for such disclosure. Further, notwithstanding anything in this paragraph to the contrary, you may make such\ndisclosures if you are required to do so under applicable law or the applicable rules or regulations of any securities exchange or similar self-\nregulatory organization.\nUnless otherwise agreed to by the Company in writing, (a) all communications regarding the Possible Transaction, (b) requests for additional\ninformation, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the\nPossible Transaction, will be submitted or directed exclusively to John P. Molner or Ivan A. Pirzada of Brown Brothers Harriman & Co. (the\n“Banker”). Contact information for the appropriate Banker representatives is included in Exhibit A to this letter agreement.\nYou agree that, for a period of two (2) years from the date hereof, neither you nor any of your Affiliates will, directly or indirectly, solicit for\nemployment or employ or cause to leave the employ of the Company or any of its subsidiaries any individual serving as (a) an officer of the\nCompany or any of its subsidiaries or (b) any employee of the Company or any of its subsidiaries with whom you have had contact, or who is\nspecifically identified to you, during your investigation of the Company and its business, in each case without obtaining the prior written consent of\nthe Company; provided that nothing herein shall restrict or preclude you from (A) making generalized solicitations or broad-based searches for\nemployees, (B) continuing your ordinary course hiring practices that are not targeted specifically at employees of the Company or (C) responding to\nany employee of the Company who contacts you regarding his or her own employment with you on his or her own initiative without any direct\nsolicitation by you other than any generalized search or ordinary course practice referred to in clause (A) or (B) above.\nYou hereby acknowledge that, unless otherwise agreed in writing by the Company, for a period of one (1) year from the date of this letter agreement,\nneither you nor any of your Representatives or Affiliates acting on your behalf or on behalf of other persons acting in concert with you will in any\nmanner, directly or indirectly: (a) propose, offer or effect (whether publicly or otherwise) (i) any merger, consolidation, business combination, tender\nor exchange offer, purchase of the Company’s material assets outside the ordinary course of business, stock or businesses, or similar transactions\ninvolving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company\n(collectively, a transaction specified in (a)(i) and (a)(ii) is referred to as a “Business Combination”); (b) (i) acquire “beneficial ownership” (as such\nterm is used in the rules of the Securities and Exchange Commission) of any securities (including in derivative form) of the Company, (ii) propose or\nseek, whether alone or in concert with others, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange\nCommission) or consents to vote any securities of the Company, (iii) nominate any person as a director of the Company, or (iv) propose any matter\nto be voted upon by the stockholders of the Company; (c)\nPage 3\ndirectly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange\nCommission) (or discuss with any third party the potential formation of a group) with respect to any securities of the Company or a Business\nCombination involving the Company; or (d) take any action that could require the Company to make a public announcement regarding a potential\nBusiness Combination or any of the matters referred to in this paragraph; provided, however, that the restrictions set forth in this paragraph shall\nterminate immediately upon the public announcement by the Company or by a third party that the Company has entered into a definitive agreement\nwith such third party for a transaction involving a Business Combination. You also agree during such one (1) year period not to request, or solicit or\ninduce another person to request, the Company (or any of its Representatives), directly or indirectly, to amend, waive or publicize any provision of\nthis paragraph (including this sentence). Notwithstanding the foregoing, nothing in this Agreement shall limit your ability to make or submit in a\nconfidential, non-public manner to the board of directors of the Company, a bona fide written proposal relating to a Business Combination so long as\nyou do not make, or cause to be made, any public disclosure regarding such action and such action would not violate clause (d) above. You further\nagree that, subject to any applicable confidentiality or other similar restrictions, if at any time during such period, you or any of your Affiliates or\nRepresentatives are approached by any third party concerning your or their participation in a transaction involving any assets, indebtedness or\nbusiness of, or securities issued by, the Company or any of its subsidiaries, you will promptly inform the Company of the nature of such transaction\nand the parties involved.\nAlthough the Company has endeavored and will endeavor to include in the Evaluation Material information which it believes to be relevant for the\npurpose of your investigation, you understand that none of the Company, the Banker, or their respective Affiliates or Representatives have made or\nmake any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material in connection with matters\ncontemplated hereby. Only those representations and warranties that may be made to you in a definitive written agreement for a Possible\nTransaction, when, as and if executed and subject to such limitations and restrictions as may be specified therein, shall have any legal effect, and you\nagree that if you determine to engage in a Possible Transaction such determination will be based solely on the terms of such definitive written\nagreement and on your own investigation, analysis and assessment of the Possible Transaction. Except as provided in any such definitive written\nagreement, neither the Company nor any of its Affiliates or representatives shall have any liability to you or any other party, including, without\nlimitation, your Representatives, resulting from the use or selection of, or reliance on, Evaluation Material by you, your Affiliates or Representatives,\nother than as expressly provided herein.\nUpon the Company’s (directly or through the Banker) demand, you shall either promptly (a) destroy the Evaluation Material and any copies thereof,\nor (b) return to the Company all Evaluation Material and any copies thereof, and, in either case, confirm in writing to the Company that all such\nmaterial has been destroyed or returned, as applicable, in compliance with this letter agreement. It is understood that information in an intangible or\nelectronic format containing Evaluation Materials cannot be removed, erased or otherwise deleted from archival systems (also known as “computer\nor system back-ups”) but that such information will continue to be protected under the confidentiality requirements contained in this Agreement and\nyou and such Affiliates and Representatives shall continue to be bound by the obligations of\nPage 4\nconfidentiality hereunder. Notwithstanding the foregoing, you, your Affiliates and your Representatives may retain (i) one copy of any work product\nprepared by you or them that contains Evaluation Material to the extent required under applicable legal or regulatory requirements and (ii) one copy\nof the Evaluation Material at your outside legal counsels’ office to the extent required by your document retention policies; provided that you and\nsuch Affiliates and Representatives shall continue to be bound by the obligations of confidentiality hereunder.\nYou acknowledge and agree that money damages would not be a sufficient remedy for any breach (or threatened breach) of this letter agreement by\nyou or your Affiliates or Representatives and that the Company shall be entitled to equitable relief, including injunction and specific performance, as\na remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to\ncause its Affiliates and Representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such\nremedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law or in\nequity.\nYou agree that unless and until a definitive agreement between the Company and you with respect to the Possible Transaction has been executed and\ndelivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to any transaction by virtue of this or\nany written or oral expression with respect to any Possible Transaction by any of its Affiliates and Representatives except for the matters specifically\nagreed to herein. For purposes of this letter agreement, the term “definitive agreement” does not include an executed letter of intent or any other\npreliminary written agreement, nor does it include any oral acceptance of an offer or bid by you. The agreement set forth in this paragraph may be\nmodified or waived only by a separate writing by the Company and you expressly so modifying or waiving such agreement.\nYou agree that this letter agreement supersedes all prior or contemporaneous agreements (including the Previous Nondisclosure Agreement),\nnegotiations or understandings between the parties regarding the subject matters hereof.\nYou acknowledge that, subject to the terms of this letter agreement, unless and until a definitive written agreement is entered into, (a) the Company\nand the Banker shall be free to conduct the process for a transaction as they in their sole discretion shall determine, (b) any procedures relating to\nsuch transaction may be changed at any time without notice to you or any other person, and (c) you shall not have any claims whatsoever against the\nCompany, the Banker or any of their respective Representatives arising out of or relating to a Possible Transaction.\nNo failure or delay by the Company or any of its representatives, on the one hand, or you or any of your Affiliates or Representatives, on the other\nhand, in exercising any right, power or privilege under this letter agreement shall operate as a waiver thereof, and no modification hereof shall be\neffective, unless in writing and signed by an officer of the Company and/or you or other authorized person on its/your behalf.\nPage 5\nThe illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its legality, validity or\nenforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other provision.\nExcept as otherwise provided in this letter agreement, the obligations hereunder shall terminate five years from the date hereof.\nThis letter agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts. The parties hereby\nirrevocably and unconditionally consent to the exclusive jurisdiction of the courts in the Commonwealth of Massachusetts and the United States\nDistrict Court for the District of the Commonwealth of Massachusetts for any action, suit or proceeding arising out of or relating to this letter\nagreement or the Possible Transaction, except as may otherwise be agreed in writing by the parties in the course of the Possible Transaction, and\nagree not to commence any action, suit or proceeding related thereto except in such courts.\nThis letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the\nsame agreement. One or more counterparts of this letter agreement may be delivered by telecopier or pdf electronic transmission, with the intention\nthat they shall have the same effect as an original counterpart hereof.\n[Signature Page Follows]\nPage 6\nVery truly yours,\nZOLL MEDICAL CORPORATION\nBy: /s/ Richard A. Packer\nName: Richard A. Packer\nTitle: CEO\nConfirmed and Agreed to:\nASAHI KASEI CORPORATION\nBy: /s/ Koji Fujiwara\nName: Koji Fujiwara\nTitle: Director & Primary Executive Officer\nEXHIBIT A\nBrown Brothers Harriman & Co. Contact Information\nAll inquiries should be directed to any of the individuals listed below.\n, Partner\nBrown Brothers Harriman & Co\n140 Broadway\nNew York, NY 10005-1101\nPhone:\nFax:\nEmail:\n, Senior Vice President\nBrown Brothers Harriman & Co.\n40 Water Street\nBoston, MA 02109\nPhone:\nFax:\nEmail: 402141dd8e87b123574ae59271c9224f.pdf effective_date jurisdiction party term EX-99.E .3 4 dex99e3.htm NON-DISCLOSURE AGREEMENT\nExhibit (e)(3)\nNON-DISCLOSURE AGREEMENT\nIn connection with a potential transaction (“Proposed Transaction”) between 3M Company (“Interested Party” or “Receiving Party”), and\nCogent, Inc., a Delaware corporation (“Company” or “Disclosing Party”), the parties wish to protect and preserve the confidential and/or\nproprietary nature of certain information and materials of the Company that may be disclosed or made available to the Interested Party or its\nRepresentatives (as defined below) in connection with certain discussions, negotiations or dealings between the parties relating to the Proposed\nTransaction.\nIn consideration of the foregoing and the rights and obligations set forth herein, both parties hereby agree as of July 31, 2008 (the “Effective\nDate”):\n1. PROPRIETARY INFORMATION AND OTHER DEFINITIONS.\n1.1 “Proprietary Information” means any and all information and material disclosed by Disclosing Party or any of its Representatives to\nReceiving Party or any of its Representatives in connection with the Proposed Transaction or in the course of the parties’ evaluation and negotiation\nof the Proposed Transaction, together with all communications, data, reports, analyses, compilations, studies, interpretations, records, notes, lists,\nfinancial statements or other materials or information prepared by Receiving Party or any of its Representatives that contain or otherwise reflect or\nare based upon, in whole or in part, any Proprietary Information of Disclosing Party or that reflect the review of, interest in, or evaluation of all or\nany portion of the Proposed Transaction or Disclosing Party’s business (collectively, “Derived Information”), whether tangible or intangible,\nfurnished or prepared in writing or in oral, graphic, electronic or any other form or manner. In addition, Proprietary Information shall include (x) the\nfact that discussions or negotiations are taking place concerning the Proposed Transaction or that Interested Party has made or may make an offer to\nacquire Company’s stock or assets or that any Proprietary Information has been shared between the parties and their respective Representatives in\nconnection therewith, (y) the proposed terms and conditions of the Proposed Transaction (including any financial terms and conditions) and the\nstatus thereof, and (z) the existence, context, and scope of this Agreement.\nProprietary Information shall not include information that: (i) is or becomes generally available to the public other than as a result of any\ndisclosure or other action or inaction by Receiving Party in breach of this Agreement (including any disclosure or other action or inaction by\nRepresentatives of Receiving Party that would constitute a breach of this Agreement if undertaken by Receiving Party itself); (ii) is or becomes\nknown or available to Receiving Party or any of its Representatives on a non-confidential basis from a source (other than Disclosing Party or any of\nits subsidiaries, affiliates or Representatives) that, to the best of the knowledge of Receiving Party, is not prohibited from disclosing such Proprietary\nInformation to Receiving Party by a contractual, legal or fiduciary obligation; or (iii) is or was independently developed by Receiving Party or any of\nits Representatives without violation of any obligation under this Agreement.\n1.2 “Representatives” means as to any person, its directors, officers, employees, agents and advisors (including, without limitation, financial\nadvisors, financing sources, attorneys, accountants and their respective Representatives).\n1.3 “person” shall be broadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual.\n2. NON-DISCLOSURE AND LIMITED USE.\n2.1 Non-Disclosure. Without the written consent of Disclosing Party and except as otherwise required by applicable law, Receiving Party shall\nkeep, and shall cause its Representatives to keep, all Proprietary Information confidential and shall not disclose or reveal, and shall cause its\nRepresentatives not to disclose or reveal, in any manner whatsoever, in whole or in part, any Proprietary Information to any person, other than to its\nRepresentatives who are actively and directly participating in its evaluation of the Proposed Transaction or who otherwise need to know the\nProprietary Information for the purpose of evaluating the Proposed Transaction and who are bound by restrictions regarding the disclosure and use of\nsuch Proprietary Information (either contractual, legal or fiduciary) owed to Company, Interested Party or any their respective Representatives that\nare comparable to and no less restrictive than those set forth in this Agreement. Each party shall inform all of its respective Representatives and shall\ncause its respective Representatives to inform their Representatives who receive Proprietary Information hereunder of the confidential nature of such\ninformation and the Proposed Transaction, as well as the terms of this Agreement. Receiving Party shall not, and shall cause its Representatives to\nnot, use any Proprietary Information for any purpose other than to evaluate the Proposed Transaction or in connection with the consummation of the\nProposed Transaction. Each party shall be responsible for any breach of the terms of this Agreement by it or its Representatives.\n2.2 Degree of Care. Receiving Party shall take the same degree of care that it uses to protect its own confidential and proprietary information\nof similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the use, disclosure, publication or\ndissemination of the Proprietary Information of Disclosing Party. Receiving Party shall not, and shall cause its Representatives to not, decompile,\ndisassemble or otherwise reverse engineer (except to the extent expressly permitted by applicable law, notwithstanding a contractual obligation to the\ncontrary) any Proprietary Information or any portion thereof, or determine or attempt to determine any source code, algorithms, methods or\ntechniques embodied in any Proprietary Information or any portion thereof. Receiving Party shall not use Proprietary Information for any purpose or\nin any manner that would constitute a violation of any laws or regulations, including without limitation the export control laws of the United States.\n2.3 Designated Representatives. Neither Interested Party nor its Representatives shall initiate or maintain contact with any officer, director,\nstockholder, employee or agent of Company or its subsidiaries regarding the Proposed Transaction, except with the express consent of Company. All\n(i) communications regarding the Proposed Transaction, (ii) requests for additional information, (iii) requests for on-site access or management\nmeetings and (iv) discussions or questions regarding procedures, will be submitted or directed to the Representatives designated by the Company.\n2.4 Compelled Disclosure of Proprietary Information. If Receiving Party or any of its Representatives are requested pursuant to, or required\nby, applicable law or regulation (including, without limitation, any rule, regulation or policy statement of any national securities exchange, market or\nautomated quotation system on which any of Receiving Party’s securities are listed or quoted) or by legal process to disclose any Proprietary\nInformation, or any other information concerning Disclosing Party, its subsidiaries or affiliates, Receiving Party shall provide Disclosing Party with\nprompt notice of such request or requirement, in order to enable Disclosing Party (a) to seek an appropriate protective order or other remedy, (b) to\nconsult with Receiving Party with respect to Disclosing Party’s taking steps to resist or narrow the scope of such request or legal process or (c) to\nwaive compliance, in whole or in part, with the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or\nDisclosing Party waives compliance, in whole or in part, with the terms of this Agreement, Receiving Party or its Representatives, as the case may\nbe, shall use commercially reasonable efforts to disclose only that portion of the Proprietary Information which Receiving Party is advised by legal\ncounsel is legally required to be disclosed and exercise its commercially reasonable efforts to obtain reliable assurances that confidential treatment\nwill be accorded to the Proprietary Information so disclosed.\n2.5 Attorney-Client Privilege. To the extent that any Proprietary Information may include material subject to the attorney-client privilege,\nwork product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the\nparties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual\nunderstanding that the disclosure of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material\nor its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege and any such Proprietary\nInformation shall remain entitled to all protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this\nAgreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\n2.6 Definitive Agreement. Until a definitive agreement regarding the Proposed Transaction has been executed by the parties hereto, neither\nparty hereto shall be under any legal obligation or have any liability to the other party of any nature whatsoever with respect to the Proposed\nTransaction by virtue of this Agreement or otherwise (other than with respect to the confidentiality and other matters set forth herein). Each party\nhereto and its Representatives (i) may conduct the process that may or may not result in the Proposed Transaction in such manner as such party, in its\nsole discretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third party without notice\nto the other party) and (ii) reserves the right to change (in its sole discretion, at any time and without notice to the other party) the procedures relating\nto the parties’ consideration of the Proposed Transaction (including, without limitation, terminating all further discussions with the other party). For\npurposes of this Agreement, the term “definitive agreement” does not include an executed letter of intent or any other preliminary written agreement\nin principle.\n2.7 No Representations or Warranties Regarding Proprietary Information. Subject to the terms and conditions of a definitive agreement\nregarding the Proposed Transaction and without prejudice thereto, each party acknowledges that neither the other party nor its Representatives nor\nany of the officers, directors, employees, agents or controlling persons of such Representatives makes any express or implied representation or\nwarranty as to the completeness of the Proprietary Information or any use thereof. Each party hereby expressly disclaims all such warranties,\nincluding any implied warranties of merchantability and fitness for a particular purpose, non-infringement and accuracy, and any warranties arising\nout of course of performance, course of dealing or usage of trade. Receiving Party shall not be entitled to rely on the completeness of any Proprietary\nInformation, but shall be entitled to rely solely on such representations and warranties regarding the completeness of the Proprietary Information as\nmay be made to it in a definitive agreement relating to the Proposed Transaction, subject to the terms and conditions of any such agreement, should\nthe discussions between the parties progress to such a point.\n3. NO SOLICITATION.\n3.1 No Solicitation of Employees. Interested Party agrees that neither it nor its affiliates will at any time until the one year anniversary of the\nEffective Date, directly or indirectly, employ or solicit for employment (i) any key technical or management personnel of the Company that has first\nbeen introduced by the Company to the Interested Party in connection with the Proposed Transaction or who was otherwise substantively involved in\nthe discussions of the Proposed Transaction or (ii) any other person who is now employed as an officer of the other party or any of its affiliates;\nprovided, that the foregoing restriction shall not be deemed to prohibit Interested Party or its Representatives from making general public\nsolicitations for employment for any position or from employing any employee of the\nCompany who either responds to such a general solicitation for employment or otherwise contacts Interested Party on his or her own initiative and\nwithout solicitation by Interested Party in contravention of the above restriction. Additionally, the above restriction shall not be deemed to prohibit\nInterested Party from making offers of employment or offering retention packages to any employees of Company or any of its affiliates in\nconnection with the Proposed Transaction, provided that such offers have been disclosed to the Board of Directors of the Company.\n4. SECURITIES ISSUES.\n4.1 No Public Disclosure Required. Each party expressly confirms and agrees that, as of the date hereof, it is not required to make any public\ndisclosure with respect to (a) the Proposed Transaction (or the terms or conditions or any other facts relating thereto), (b) any item of Proprietary\nInformation (or the fact that Proprietary Information has been made available to such party), or (c) any discussions or negotiations taking place\nbetween the parties with respect to the Proposed Transaction, whether pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange\nAct”), the rules and regulations promulgated thereunder, or similar requirements related to general disclosure. If, after the date of this Agreement,\neither party determines that any such disclosure is required, no such disclosure shall be made unless and until such party consults with the other party\nregarding the necessity and form of any such disclosure, and provides the other party a reasonable opportunity to review the proposed disclosure and\ncomment thereon.\n4.2 Restrictions on Sales of Securities. Each party is aware, and will advise its Representatives who are informed of the matters that are the\nsubject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who\nhas received material, non-public information from the issuer of such securities and on the communication of such information to any other person\nwhen it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information. However, this\nwill not prevent Receiving Party from purchasing stock through its benefit plans in the ordinary course of business.\n5. OWNERSHIP.\nAll Proprietary Information (including, without limitation, all copies, extracts and portions thereof) is and shall remain the sole property of\nDisclosing Party, provided, that all Derived Information shall be the sole property of Receiving Party. Receiving Party does not acquire (by license or\notherwise, whether express or implied) any intellectual property rights or other rights under this Agreement or any disclosure hereunder, except the\nlimited right to use such Proprietary Information in accordance with the express provisions of this Agreement. All rights relating to the Proprietary\nInformation that are not expressly granted hereunder to Interested Party are reserved and retained by Disclosing Party.\n6. TERM.\nExcept as otherwise provided herein, the obligations of this Agreement, including the restrictions on disclosure and use, shall terminate on the\nsecond anniversary of the Effective Date; provided that Sections 2.5, 2.6, and 2.7 and Articles 4, 5, 6, 7, 8 and 9 shall survive any termination of this\nAgreement.\n7. REMEDIES.\nReceiving Party agrees that, due to the unique nature of the Proprietary Information, the unauthorized disclosure or use of the Proprietary\nInformation may cause injury to Disclosing Party, the extent of which will be difficult to ascertain and for which there may be no adequate remedy at\nlaw. Accordingly, Receiving Party agrees that Disclosing Company, in addition to any other available\nremedies, may have the right to seek an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Agreement\nas ordered by the court. Receiving Party shall notify Disclosing Party immediately if Receiving Party has reason to believe that any person who has\nhad access to the Proprietary Information (including Receiving Party or any of its Representatives) has violated or intends to violate the terms of this\nAgreement or otherwise disclose any Proprietary Information in violation of the terms hereof. Any and all remedies herein expressly conferred upon\na party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such party, and the\nexercise by a party of any one remedy will not preclude the exercise of any other remedy.\n8. RETURN OF MATERIALS.\nIf either party hereto shall determine that it does not wish to proceed with the Proposed Transaction, such party shall promptly advise the other\nparty of that decision. In that case, or if the Proposed Transaction otherwise is not consummated for any reason, Receiving Party shall, upon\nDisclosing Party’s written request, promptly deliver to Disclosing Party all Proprietary Information, and, at Disclosing Party’s sole election, return or\ndestroy (provided that any such destruction shall be certified by a duly authorized Representative of Receiving Party) all copies, reproductions,\nsummaries, analyses or extracts thereof or based thereon (whether in hard-copy form or on intangible media, such as electronic mail or computer\nfiles) in Receiving Party’s or any of its Representatives’ possession; provided, that if a legal proceeding has been instituted to seek disclosure of the\nProprietary Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been\nrendered. However, Receiving Party may retain in the office of its legal counsel, one copy of Proprietary Information for record purposes only.\nNotwithstanding the return or destruction of any Proprietary Information, or documents or material containing or reflecting any Proprietary\nInformation, the parties will continue to be bound by their obligations of confidentiality and other obligations hereunder for the term of this\nAgreement (or such other term as may be applicable to the specific obligation), except as otherwise specifically provided herein.\n9. MISCELLANEOUS.\n9.1 Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the confidentiality of the Proprietary\nInformation in connection with the Proposed Transaction and related matters and supersedes all prior or contemporaneous representations,\ndiscussions, proposals, negotiations, conditions, communications and agreements, whether oral or written, between the parties relating to the same\nand all past courses of dealing or industry custom.\n9.2 Beneficiaries. This Agreement shall inure to the benefit of and be binding upon Interested Party and Company and their respective\nsuccessors and permitted assigns.\n9.3 Amendments and Waivers. No amendment, modification or waiver of any provision of this Agreement shall be effective unless in writing\nand signed by duly authorized signatories of both parties. The waiver by either party of a breach of or a default under any provision of this\nAgreement shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor\nshall any delay or omission on the part of either party to exercise or avail itself of any right, power, privilege or remedy that it has or may have\nhereunder operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other further exercise of any such right, power,\nprivilege or remedy hereunder.\n9.4 Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota without regard\nto conflicts of laws principles.\n9.5 Jurisdiction; Waiver of Jury Trial. The parties hereto agree that any and all actions or proceedings seeking to enforce any provision of,\nor based on any right arising out of, this Agreement shall be brought in the courts of the State of California, County of Los Angeles, including\nFederal Courts located therein, should Federal jurisdiction requirements exist. Each of the parties consents to the jurisdiction of such courts (and of\nthe appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. Process in any action or proceeding\nreferred to in the preceding sentence may be served on any party anywhere in the world. The parties hereto specifically waive any right to a jury trial\nwith respect to any matter arising under this Agreement.\n9.6 Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines in a final, non-appealable\norder that a party has breached this Agreement, then such party shall be liable and pay to the non-breaching party the reasonable costs and expenses\n(including reasonable legal fees and expenses) such non-breaching party has incurred in connection with the enforcement of this Agreement,\nincluding any appeal therefrom.\n9.7 Severability. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to\nbe invalid or unenforceable, the remaining portions hereof shall remain in full force and effect and such provision shall be enforced to the maximum\nextent possible so as to effect the intent of the parties, and shall in no way be affected, impaired or invalidated.\n9.8 Notices. Any notice or other communication required or permitted to be delivered under this Agreement shall be in writing and shall be\ndeemed effectively given: (i) upon personal delivery to the party to be notified; (ii) when sent by confirmed telex or facsimile if sent during normal\nbusiness hours of the recipient, if not, then on the next business day; (iii) three (3) days after having been sent by registered or certified mail, return\nreceipt requested, postage prepaid; or (iv) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with\nwritten verification of receipt, to the address or facsimile number set forth beneath the name of each party below (or to such other address or\nfacsimile number as such party may designate by five (5) days advance written notice to the other party hereto).\n9.9 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this\nAgreement and all of which, when taken together, will be deemed to constitute one and the same instrument.\n[SIGNATURES FOLLOW ON THE NEXT PAGE]\nIN WITNESS WHEREOF, the parties have duly authorized and caused this Non-Disclosure Agreement to be executed as follows:\nCOMPANY\nCogent, Inc.\nBy: /s/ Paul Kim\n(signature)\nName: Paul Kim\n(print)\nTitle: Chief Financial Officer\nINTERESTED PARTY\n3M Company\nBy: /s/ David G. Fellner\n(signature)\nName: David G. Fellner\n(print)\nTitle: Manager, Corporate Development\nAMENDMENT NO. 1 TO NON-DISCLOSURE AGREEMENT\nThis Amendment No. 1 to Non-Disclosure Agreement (this “Amendment”) dated as of May 31st, 2010 (the “Amendment Date”), is entered\ninto between Cogent, Inc., a Delaware corporation (“Company” or “Disclosing Party”) and 3M Company, a Delaware corporation (“Interested\nParty” or “Receiving Party”) (collectively the “Parties”).\nWHEREAS, the Parties previously entered into a Non-Disclosure Agreement dated as of July 31, 2008 (the “Non-Disclosure Agreement”);\nWHEREAS, the Parties wish to amend the Non-Disclosure Agreement in certain respects on the terms and conditions set forth herein.\nNOW THEREFORE, the Parties hereby agree as follows:\n1. Section 3.1 of the Non-Disclosure Agreement is hereby amended by replacing “one year anniversary of the Effective Date” in the second\nline of such section with “three year anniversary of the Effective Date.”\n2. Section 6 of the Non-Disclosure Agreement is hereby amended by replacing “second anniversary of the Effective Date” in the second line of\nsuch section with “fourth anniversary of the Effective Date.”\n3. This Amendment shall be effective for all purposes as of the Amendment Date. The terms and conditions set forth in this Amendment are in\naddition to the terms of the Non-Disclosure Agreement which, except as amended in this Amendment, shall continue to remain in full force and\neffect in accordance with its terms. Any capitalized terms not otherwise defined herein shall have the meanings given such terms in the Non-\nDisclosure Agreement.\n4. This Amendment may be executed in counterparts, each of which shall be deemed to be an original and together shall be deemed to be one\nand the same document.\nIN WITNESS WHEREOF, the Parties have caused this Amendment to be executed by their respective duly authorized representatives\neffective as of the Amendment Date.\n3M Company\nCogent, Inc.\nBy: /s/ David G. Fellner\nBy: /s/ Paul Kim\nName: David G. Fellner\nName: Paul Kim\nTitle: Manager, 3M Corporate Development\nTitle: Chief Financial Officer EX-99.E.3 4 dex99e3.htm NON-DISCLOSURE AGREEMENT\nExhibit (e)(3)\nNON-DISCLOSURE AGREEMENT\nIn connection with a potential transaction (“Proposed Transaction”) between 3M Company (“Interested Party” or “Receiving Party”), and\nCogent, Inc., a Delaware corporation (“Company” or “Disclosing Party”), the parties wish to protect and preserve the confidential and/or\nproprietary nature of certain information and materials of the Company that may be disclosed or made available to the Interested Party or its\nRepresentatives (as defined below) in connection with certain discussions, negotiations or dealings between the parties relating to the Proposed\nTransaction.\nIn consideration of the foregoing and the rights and obligations set forth herein, both parties hereby agree as of July 31, 2008 (the “Effective\nDate”):\n1. PROPRIETARY INFORMATION AND OTHER DEFINITIONS.\n1.1 “Proprietary Information” means any and all information and material disclosed by Disclosing Party or any of its Representatives to\nReceiving Party or any of its Representatives in connection with the Proposed Transaction or in the course of the parties’ evaluation and negotiation\nof the Proposed Transaction, together with all communications, data, reports, analyses, compilations, studies, interpretations, records, notes, lists,\nfinancial statements or other materials or information prepared by Receiving Party or any of its Representatives that contain or otherwise reflect or\nare based upon, in whole or in part, any Proprietary Information of Disclosing Party or that reflect the review of, interest in, or evaluation of all or\nany portion of the Proposed Transaction or Disclosing Party’s business (collectively, “Derived Information”), whether tangible or intangible,\nfurnished or prepared in writing or in oral, graphic, electronic or any other form or manner. In addition, Proprietary Information shall include (x) the\nfact that discussions or negotiations are taking place concerning the Proposed Transaction or that Interested Party has made or may make an offer to\nacquire Company’s stock or assets or that any Proprietary Information has been shared between the parties and their respective Representatives in\nconnection therewith, (y) the proposed terms and conditions of the Proposed Transaction (including any financial terms and conditions) and the\nstatus thereof, and (z) the existence, context, and scope of this Agreement.\nProprietary Information shall not include information that: (i) is or becomes generally available to the public other than as a result of any\ndisclosure or other action or inaction by Receiving Party in breach of this Agreement (including any disclosure or other action or inaction by\nRepresentatives of Receiving Party that would constitute a breach of this Agreement if undertaken by Receiving Party itself); (ii) is or becomes\nknown or available to Receiving Party or any of its Representatives on a non-confidential basis from a source (other than Disclosing Party or any of\nits subsidiaries, affiliates or Representatives) that, to the best of the knowledge of Receiving Party, is not prohibited from disclosing such Proprietary\nInformation to Receiving Party by a contractual, legal or fiduciary obligation; or (iii) is or was independently developed by Receiving Party or any of\nits Representatives without violation of any obligation under this Agreement.\n1.2 “Representatives” means as to any person, its directors, officers, employees, agents and advisors (including, without limitation, financial\nadvisors, financing sources, attorneys, accountants and their respective Representatives).\n1.3 “person” shall be broadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual.\n2. NON-DISCLOSURE AND LIMITED USE.\n2.1 Non-Disclosure. Without the written consent of Disclosing Party and except as otherwise required by applicable law, Receiving Party shall\nkeep, and shall cause its Representatives to keep, all Proprietary Information confidential and shall not disclose or reveal, and shall cause its\nRepresentatives not to disclose or reveal, in any manner whatsoever, in whole or in part, any Proprietary Information to any person, other than to its\nRepresentatives who are actively and directly participating in its evaluation of the Proposed Transaction or who otherwise need to know the\nProprietary Information for the purpose of evaluating the Proposed Transaction and who are bound by restrictions regarding the disclosure and use of\nsuch Proprietary Information (either contractual, legal or fiduciary) owed to Company, Interested Party or any their respective Representatives that\nare comparable to and no less restrictive than those set forth in this Agreement. Each party shall inform all of its respective Representatives and shall\ncause its respective Representatives to inform their Representatives who receive Proprietary Information hereunder of the confidential nature of such\ninformation and the Proposed Transaction, as well as the terms of this Agreement. Receiving Party shall not, and shall cause its Representatives to\nnot, use any Proprietary Information for any purpose other than to evaluate the Proposed Transaction or in connection with the consummation of the\nProposed Transaction. Each party shall be responsible for any breach of the terms of this Agreement by it or its Representatives.\n2.2 Degree of Care. Receiving Party shall take the same degree of care that it uses to protect its own confidential and proprietary information\nof similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the use, disclosure, publication or\ndissemination of the Proprietary Information of Disclosing Party. Receiving Party shall not, and shall cause its Representatives to not, decompile,\ndisassemble or otherwise reverse engineer (except to the extent expressly permitted by applicable law, notwithstanding a contractual obligation to the\ncontrary) any Proprietary Information or any portion thereof, or determine or attempt to determine any source code, algorithms, methods or\ntechniques embodied in any Proprietary Information or any portion thereof. Receiving Party shall not use Proprietary Information for any purpose or\nin any manner that would constitute a violation of any laws or regulations, including without limitation the export control laws of the United States.\n2.3 Designated Representatives. Neither Interested Party nor its Representatives shall initiate or maintain contact with any officer, director,\nstockholder, employee or agent of Company or its subsidiaries regarding the Proposed Transaction, except with the express consent of Company. All\n(i) communications regarding the Proposed Transaction, (ii) requests for additional information, (iii) requests for on-site access or management\nmeetings and (iv) discussions or questions regarding procedures, will be submitted or directed to the Representatives designated by the Company.\n2.4 Compelled Disclosure of Proprietary Information. If Receiving Party or any of its Representatives are requested pursuant to, or required\nby, applicable law or regulation (including, without limitation, any rule, regulation or policy statement of any national securities exchange, market or\nautomated quotation system on which any of Receiving Party’s securities are listed or quoted) or by legal process to disclose any Proprietary\nInformation, or any other information concerning Disclosing Party, its subsidiaries or affiliates, Receiving Party shall provide Disclosing Party with\nprompt notice of such request or requirement, in order to enable Disclosing Party (a) to seek an appropriate protective order or other remedy, (b) to\nconsult with Receiving Party with respect to Disclosing Party’s taking steps to resist or narrow the scope of such request or legal process or (c) to\nwaive compliance, in whole or in part, with the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or\nDisclosing Party waives compliance, in whole or in part, with the terms of this Agreement, Receiving Party or its Representatives, as the case may\nbe, shall use commercially reasonable efforts to disclose only that portion of the Proprietary Information which Receiving Party is advised by legal\ncounsel is legally required to be disclosed and exercise its commercially reasonable efforts to obtain reliable assurances that confidential treatment\nwill be accorded to the Proprietary Information so disclosed.\n \n2.5 Attorney-Client Privilege. To the extent that any Proprietary Information may include material subject to the attorney-client privilege,\nwork product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the\nparties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual\nunderstanding that the disclosure of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material\nor its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege and any such Proprietary\nInformation shall remain entitled to all protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this\nAgreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\n2.6 Definitive Agreement. Until a definitive agreement regarding the Proposed Transaction has been executed by the parties hereto, neither\nparty hereto shall be under any legal obligation or have any liability to the other party of any nature whatsoever with respect to the Proposed\nTransaction by virtue of this Agreement or otherwise (other than with respect to the confidentiality and other matters set forth herein). Each party\nhereto and its Representatives (i) may conduct the process that may or may not result in the Proposed Transaction in such manner as such party, in its\nsole discretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third party without notice\nto the other party) and (ii) reserves the right to change (in its sole discretion, at any time and without notice to the other party) the procedures relating\nto the parties’ consideration of the Proposed Transaction (including, without limitation, terminating all further discussions with the other party). For\npurposes of this Agreement, the term “definitive agreement” does not include an executed letter of intent or any other preliminary written agreement\nin principle.\n2.7 No Representations or Warranties Regarding Proprietary Information. Subject to the terms and conditions of a definitive agreement\nregarding the Proposed Transaction and without prejudice thereto, each party acknowledges that neither the other party nor its Representatives nor\nany of the officers, directors, employees, agents or controlling persons of such Representatives makes any express or implied representation or\nwarranty as to the completeness of the Proprietary Information or any use thereof. Each party hereby expressly disclaims all such warranties,\nincluding any implied warranties of merchantability and fitness for a particular purpose, non-infringement and accuracy, and any warranties arising\nout of course of performance, course of dealing or usage of trade. Receiving Party shall not be entitled to rely on the completeness of any Proprietary\nInformation, but shall be entitled to rely solely on such representations and warranties regarding the completeness of the Proprietary Information as\nmay be made to it in a definitive agreement relating to the Proposed Transaction, subject to the terms and conditions of any such agreement, should\nthe discussions between the parties progress to such a point.\n3. NO SOLICITATION.\n3.1 No Solicitation of Employees. Interested Party agrees that neither it nor its affiliates will at any time until the one year anniversary of the\nEffective Date, directly or indirectly, employ or solicit for employment (i) any key technical or management personnel of the Company that has first\nbeen introduced by the Company to the Interested Party in connection with the Proposed Transaction or who was otherwise substantively involved in\nthe discussions of the Proposed Transaction or (ii) any other person who is now employed as an officer of the other party or any of its affiliates;\nprovided, that the foregoing restriction shall not be deemed to prohibit Interested Party or its Representatives from making general public\nsolicitations for employment for any position or from employing any employee of the\nCompany who either responds to such a general solicitation for employment or otherwise contacts Interested Party on his or her own initiative and\nwithout solicitation by Interested Party in contravention of the above restriction. Additionally, the above restriction shall not be deemed to prohibit\nInterested Party from making offers of employment or offering retention packages to any employees of Company or any of its affiliates in\nconnection with the Proposed Transaction, provided that such offers have been disclosed to the Board of Directors of the Company.\n4, SECURITIES ISSUES.\n4.1 No Public Disclosure Required. Each party expressly confirms and agrees that, as of the date hereof, it is not required to make any public\ndisclosure with respect to (a) the Proposed Transaction (or the terms or conditions or any other facts relating thereto), (b) any item of Proprietary\nInformation (or the fact that Proprietary Information has been made available to such party), or (c) any discussions or negotiations taking place\nbetween the parties with respect to the Proposed Transaction, whether pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange\nAct”), the rules and regulations promulgated thereunder, or similar requirements related to general disclosure. If, after the date of this Agreement,\neither party determines that any such disclosure is required, no such disclosure shall be made unless and until such party consults with the other party\nregarding the necessity and form of any such disclosure, and provides the other party a reasonable opportunity to review the proposed disclosure and\ncomment thereon.\n4.2 Restrictions on Sales of Securities. Each party is aware, and will advise its Representatives who are informed of the matters that are the\nsubject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who\nhas received material, non-public information from the issuer of such securities and on the communication of such information to any other person\nwhen it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information. However, this\nwill not prevent Receiving Party from purchasing stock through its benefit plans in the ordinary course of business.\n5. OWNERSHIP.\nAll Proprietary Information (including, without limitation, all copies, extracts and portions thereof) is and shall remain the sole property of\nDisclosing Party, provided, that all Derived Information shall be the sole property of Receiving Party. Receiving Party does not acquire (by license or\notherwise, whether express or implied) any intellectual property rights or other rights under this Agreement or any disclosure hereunder, except the\nlimited right to use such Proprietary Information in accordance with the express provisions of this Agreement. All rights relating to the Proprietary\nInformation that are not expressly granted hereunder to Interested Party are reserved and retained by Disclosing Party.\n6. TERM.\nExcept as otherwise provided herein, the obligations of this Agreement, including the restrictions on disclosure and use, shall terminate on the\nsecond anniversary of the Effective Date; provided that Sections 2.5, 2.6, and 2.7 and Articles 4, 5, 6, 7, 8 and 9 shall survive any termination of this\nAgreement.\n7. REMEDIES.\nReceiving Party agrees that, due to the unique nature of the Proprietary Information, the unauthorized disclosure or use of the Proprietary\nInformation may cause injury to Disclosing Party, the extent of which will be difficult to ascertain and for which there may be no adequate remedy at\nlaw. Accordingly, Receiving Party agrees that Disclosing Company, in addition to any other available\nremedies, may have the right to seek an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Agreement\nas ordered by the court. Receiving Party shall notify Disclosing Party immediately if Receiving Party has reason to believe that any person who has\nhad access to the Proprietary Information (including Receiving Party or any of its Representatives) has violated or intends to violate the terms of this\nAgreement or otherwise disclose any Proprietary Information in violation of the terms hereof. Any and all remedies herein expressly conferred upon\na party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such party, and the\nexercise by a party of any one remedy will not preclude the exercise of any other remedy.\n8. RETURN OF MATERIALS.\nIf either party hereto shall determine that it does not wish to proceed with the Proposed Transaction, such party shall promptly advise the other\nparty of that decision. In that case, or if the Proposed Transaction otherwise is not consummated for any reason, Receiving Party shall, upon\nDisclosing Party’s written request, promptly deliver to Disclosing Party all Proprietary Information, and, at Disclosing Party’s sole election, return or\ndestroy (provided that any such destruction shall be certified by a duly authorized Representative of Receiving Party) all copies, reproductions,\nsummaries, analyses or extracts thereof or based thereon (whether in hard-copy form or on intangible media, such as electronic mail or computer\nfiles) in Receiving Party’s or any of its Representatives’ possession; provided, that if a legal proceeding has been instituted to seek disclosure of the\nProprietary Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been\nrendered. However, Receiving Party may retain in the office of its legal counsel, one copy of Proprietary Information for record purposes only.\nNotwithstanding the return or destruction of any Proprietary Information, or documents or material containing or reflecting any Proprietary\nInformation, the parties will continue to be bound by their obligations of confidentiality and other obligations hereunder for the term of this\nAgreement (or such other term as may be applicable to the specific obligation), except as otherwise specifically provided herein.\n9. MISCELLANEOUS.\n9.1 Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the confidentiality of the Proprietary\nInformation in connection with the Proposed Transaction and related matters and supersedes all prior or contemporaneous representations,\ndiscussions, proposals, negotiations, conditions, communications and agreements, whether oral or written, between the parties relating to the same\nand all past courses of dealing or industry custom.\n9.2 Beneficiaries. This Agreement shall inure to the benefit of and be binding upon Interested Party and Company and their respective\nsuccessors and permitted assigns.\n9.3 Amendments and Waivers. No amendment, modification or waiver of any provision of this Agreement shall be effective unless in writing\nand signed by duly authorized signatories of both parties. The waiver by either party of a breach of or a default under any provision of this\nAgreement shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor\nshall any delay or omission on the part of either party to exercise or avail itself of any right, power, privilege or remedy that it has or may have\nhereunder operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other further exercise of any such right, power,\nprivilege or remedy hereunder.\n9.4 Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota without regard\nto conflicts of laws principles.\n9.5 Jurisdiction;_Waiver of Jury Trial. The parties hereto agree that any and all actions or proceedings seeking to enforce any provision of,\nor based on any right arising out of, this Agreement shall be brought in the courts of the State of California, County of Los Angeles, including\nFederal Courts located therein, should Federal jurisdiction requirements exist. Each of the parties consents to the jurisdiction of such courts (and of\nthe appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. Process in any action or proceeding\nreferred to in the preceding sentence may be served on any party anywhere in the world. The parties hereto specifically waive any right to a jury trial\nwith respect to any matter arising under this Agreement.\n9.6 Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines in a final, non-appealable\norder that a party has breached this Agreement, then such party shall be liable and pay to the non-breaching party the reasonable costs and expenses\n(including reasonable legal fees and expenses) such non-breaching party has incurred in connection with the enforcement of this Agreement,\nincluding any appeal therefrom.\n9.7 Severability. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to\nbe invalid or unenforceable, the remaining portions hereof shall remain in full force and effect and such provision shall be enforced to the maximum\nextent possible so as to effect the intent of the parties, and shall in no way be affected, impaired or invalidated.\n9.8 Notices. Any notice or other communication required or permitted to be delivered under this Agreement shall be in writing and shall be\ndeemed effectively given: (i) upon personal delivery to the party to be notified; (ii) when sent by confirmed telex or facsimile if sent during normal\nbusiness hours of the recipient, if not, then on the next business day; (iii) three (3) days after having been sent by registered or certified mail, return\nreceipt requested, postage prepaid; or (iv) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with\nwritten verification of receipt, to the address or facsimile number set forth beneath the name of each party below (or to such other address or\nfacsimile number as such party may designate by five (5) days advance written notice to the other party hereto).\n9.9 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this\nAgreement and all of which, when taken together, will be deemed to constitute one and the same instrument.\n[SIGNATURES FOLLOW ON THE NEXT PAGE]\nIN WITNESS WHEREOF, the parties have duly authorized and caused this Non-Disclosure Agreement to be executed as follows:\nCOMPANY\nCogent, Inc.\nBy: /s/ Paul Kim\n(signature)\nName: Paul Kim\n(print)\nTitle: Chief Financial Officer\nINTERESTED PARTY\n3M Company\nBy: /s/ David G. Fellner\n(signature)\nName: David G. Fellner\n(print)\nTitle: Manager, Corporate Development\nAMENDMENT NO. 1 TO NON-DISCLOSURE AGREEMENT\nThis Amendment No. 1 to Non-Disclosure Agreement (this “Amendment”) dated as of May 31st, 2010 (the “Amendment Date”), is entered\ninto between Cogent, Inc., a Delaware corporation (“Company” or “Disclosing Party”) and 3M Company, a Delaware corporation (“Interested\nParty” or “Receiving Party”) (collectively the “Parties”).\nWHEREAS, the Parties previously entered into a Non-Disclosure Agreement dated as of July 31, 2008 (the “Non-Disclosure Agreement”);\nWHEREAS, the Parties wish to amend the Non-Disclosure Agreement in certain respects on the terms and conditions set forth herein.\nNOW THEREFORE, the Parties hereby agree as follows:\n1. Section 3.1 of the Non-Disclosure Agreement is hereby amended by replacing “one year anniversary of the Effective Date” in the second\nline of such section with “three year anniversary of the Effective Date.”\n2. Section 6 of the Non-Disclosure Agreement is hereby amended by replacing “second anniversary of the Effective Date” in the second line of\nsuch section with “fourth anniversary of the Effective Date.”\n3. This Amendment shall be effective for all purposes as of the Amendment Date. The terms and conditions set forth in this Amendment are in\naddition to the terms of the Non-Disclosure Agreement which, except as amended in this Amendment, shall continue to remain in full force and\neffect in accordance with its terms. Any capitalized terms not otherwise defined herein shall have the meanings given such terms in the Non-\nDisclosure Agreement.\n4. This Amendment may be executed in counterparts, each of which shall be deemed to be an original and together shall be deemed to be one\nand the same document.\nIN WITNESS WHEREOF, the Parties have caused this Amendment to be executed by their respective duly authorized representatives\neffective as of the Amendment Date.\n3M Company Cogent, Inc.\nBy: /s/David G. Fellner By: /s/ Paul Kim\nName: David G. Fellner Name: Paul Kim\nTitle: Manager, 3M Corporate Development Title: Chief Financial Officer EX-99.E.3 4 dex99e3.htm NON-DISCLOSURE AGREEMENT\nExhibit (e)(3)\nNON-DISCLOSURE AGREEMENT\nIn connection with a potential transaction ("Proposed Transaction") between 3M Company ("Interested Party" or "Receiving Party"), and\nCogent, Inc., a Delaware corporation ("Company" or "Disclosing Party"), the parties wish to protect and preserve the confidential and/or\nproprietary nature of certain information and materials of the Company that may be disclosed or made available to the Interested Party or its\nRepresentatives (as defined below) in connection with certain discussions, negotiations or dealings between the parties relating to the Proposed\nTransaction.\nIn consideration of the foregoing and the rights and obligations set forth herein, both parties hereby agree as of July 31, 2008 (the "Effective\nDate"):\n1.\nPROPRIETARY INFORMATION AND OTHER DEFINITIONS.\n1.1 "Proprietary Information" means any and all information and material disclosed by Disclosing Party or any of its Representatives to\nReceiving Party or any of its Representatives in connection with the Proposed Transaction or in the course of the parties' evaluation and negotiation\nof the Proposed Transaction, together with all communications, data, reports, analyses, compilations, studies, interpretations, records, notes, lists,\nfinancial statements or other materials or information prepared by Receiving Party or any of its Representatives that contain or otherwise reflect or\nare based upon, in whole or in part, any Proprietary Information of Disclosing Party or that reflect the review of, interest in, or evaluation of all or\nany portion of the Proposed Transaction or Disclosing Party's business (collectively, "Derived Information"), whether tangible or intangible,\nfurnished or prepared in writing or in oral, graphic, electronic or any other form or manner. In addition, Proprietary Information shall include (x) the\nfact that discussions or negotiations are taking place concerning the Proposed Transaction or that Interested Party has made or may make an offer\nto\nacquire Company's stock or assets or that any Proprietary Information has been shared between the parties and their respective Representatives in\nconnection therewith, (y) the proposed terms and conditions of the Proposed Transaction (including any financial terms and conditions) and the\nstatus thereof, and (z) the existence, context, and scope of this Agreement.\nProprietary Information shall not include information that: (i) is or becomes generally available to the public other than as a result of any\ndisclosure or other action or inaction by Receiving Party in breach of this Agreement (including any disclosure or other action or inaction by\nRepresentatives of Receiving Party that would constitute a breach of this Agreement if undertaken by Receiving Party itself); (ii) is or becomes\nknown or available to Receiving Party or any of its Representatives on a non-confidential basis from a source (other than Disclosing Party or any of\nits subsidiaries, affiliates or Representatives) that, to the best of the knowledge of Receiving Party, is not prohibited from disclosing such Proprietary\nInformation to Receiving Party by a contractual, legal or fiduciary obligation; or (iii) is or was independently developed by Receiving Party or any\nof\nits Representatives without violation of any obligation under this Agreement.\n1.2 "Representatives" means as to any person, its directors, officers, employees, agents and advisors (including, without limitation, financial\nadvisors, financing sources, attorneys, accountants and their respective Representatives).\n1.3 "person" shall be broadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual.\n2.\nNON-DISCLOSURE AND LIMITED USE.\n2.1 Non-Disclosure. Without the written consent of Disclosing Party and except as otherwise required by applicable law, Receiving Party shall\nkeep, and shall cause its Representatives to keep, all Proprietary Information confidential and shall not disclose or reveal, and shall cause its\nRepresentatives not to disclose or reveal, in any manner whatsoever, in whole or in part, any Proprietary Information to any person, other than to its\nRepresentatives who are actively and directly participating in its evaluation of the Proposed Transaction or who otherwise need to know the\nProprietary Information for the purpose of evaluating the Proposed Transaction and who are bound by restrictions regarding the disclosure and use of\nsuch Proprietary Information (either contractual, legal or fiduciary) owed to Company, Interested Party or any their respective Representatives that\nare comparable to and no less restrictive than those set forth in this Agreement. Each party shall inform all of its respective Representatives and shall\ncause its respective Representatives to inform their Representatives who receive Proprietary Information hereunder of the confidential nature of such\ninformation and the Proposed Transaction, as well as the terms of this Agreement. Receiving Party shall not, and shall cause its Representatives to\nnot, use any Proprietary Information for any purpose other than to evaluate the Proposed Transaction or in connection with the consummation of the\nProposed Transaction. Each party shall be responsible for any breach of the terms of this Agreement by it or its Representatives.\n2.2 Degree of Care. Receiving Party shall take the same degree of care that it uses to protect its own confidential and proprietary information\nof similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the use, disclosure, publication or\ndissemination of the Proprietary Information of Disclosing Party. Receiving Party shall not, and shall cause its Representatives to not, decompile,\ndisassemble or otherwise reverse engineer (except to the extent expressly permitted by applicable law, notwithstanding a contractual obligation to the\ncontrary) any Proprietary Information or any portion thereof, or determine or attempt to determine any source code, algorithms, methods or\ntechniques embodied in any Proprietary Information or any portion thereof. Receiving Party shall not use Proprietary Information for any purpose or\nin\nany manner that would constitute a violation of any laws or regulations, including without limitation the export control laws of the United States.\n2.3 Designated Representatives. Neither Interested Party nor its Representatives shall initiate or maintain contact with any officer, director,\nstockholder, employee or agent of Company or its subsidiaries regarding the Proposed Transaction, except with the express consent of Company. All\n(i) communications regarding the Proposed Transaction (ii) requests for additional information, (iii) requests for on-site access or management\nmeetings and (iv) discussions or questions regarding procedures, will be submitted or directed to the Representatives designated by the Company.\n2.4 Compelled Disclosure of Proprietary Information. If Receiving Party or any of its Representatives are requested pursuant to, or required\nby, applicable law or regulation (including, without limitation, any rule, regulation or policy statement of any national securities exchange, market or\nautomated quotation system on which any of Receiving Party's securities are listed or quoted) or by legal process to disclose any Proprietary\nInformation, or any other information concerning Disclosing Party, its subsidiaries or affiliates, Receiving Party shall provide Disclosing Party with\nprompt notice of such request or requirement, in order to enable Disclosing Party (a) to seek an appropriate protective order or other remedy, (b)\nto\nconsult with Receiving Party with respect to Disclosing Party's taking steps to resist or narrow the scope of such request or legal process or (c) to\nwaive compliance, in whole or in part, with the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or\nDisclosing Party waives compliance, in whole or in part, with the terms of this Agreement, Receiving Party or its Representatives, as the case may\nbe, shall use commercially reasonable efforts to disclose only that portion of the Proprietary Information which Receiving Party is advised by\nlegal\ncounsel is legally required to be disclosed and exercise its commercially reasonable efforts to obtain reliable assurances that confidential treatment\nwill be accorded to the Proprietary Information so disclosed.\n2.5 Attorney-Client Privilege. To the extent that any Proprietary Information may include material subject to the attorney-client privilege,\nwork product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the\nparties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual\nunderstanding that the disclosure of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material\nor its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege and any such Proprietary\nInformation shall remain entitled to all protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this\nAgreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\n2.6 Definitive Agreement. Until a definitive agreement regarding the Proposed Transaction has been executed by the parties hereto, neither\nparty hereto shall be under any legal obligation or have any liability to the other party of any nature whatsoever with respect to the Proposed\nTransaction by virtue of this Agreement or otherwise (other than with respect to the confidentiality and other matters set forth herein). Each party\nhereto and its Representatives (i) may conduct the process that may or may not result in the Proposed Transaction in such manner as such party, in its\nsole discretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third party without notice\nto\nthe other party) and (ii) reserves the right to change (in its sole discretion, at any time and without notice to the other party) the procedures relating\nto the parties' consideration of the Proposed Transaction (including, without limitation, terminating all further discussions with the other party). For\npurposes of this Agreement, the term "definitive agreement" does not include an executed letter of intent or any other preliminary written agreement\nin principle.\n2.7 No Representations or Warranties Regarding Proprietary. Information. Subject to the terms and conditions of a definitive agreement\nregarding the Proposed Transaction and without prejudice thereto, each party acknowledges that neither the other party nor its Representatives nor\nany of the officers, directors, employees, agents or controlling persons of such Representatives makes any express or implied representation or\nwarranty as to the completeness of the Proprietary Information or any use thereof. Each party hereby expressly disclaims all such warranties,\nincluding any implied warranties of merchantability and fitness for a particular purpose, non-infringement and accuracy, and any warranties arising\nout of course of performance, course of dealing or usage of trade. Receiving Party shall not be entitled to rely on the completeness of any Proprietary\nInformation, but shall be entitled to rely solely on such representations and warranties regarding the completeness of the Proprietary Information as\nmay be made to it in a definitive agreement relating to the Proposed Transaction, subject to the terms and conditions of any such agreement, should\nthe discussions between the parties progress to such a point.\n3.\nNo SOLICITATION.\n3.1 No Solicitation of Employees. Interested Party agrees that neither it nor its affiliates will at any time until the one year anniversary of the\nEffective Date, directly or indirectly, employ or solicit for employment (i) any key technical or management personnel of the Company that has first\nbeen introduced by the Company to the Interested Party in connection with the Proposed Transaction or who was otherwise substantively involved\nin\nthe discussions of the Proposed Transaction or (ii) any other person who is now employed as an officer of the other party or any of its affiliates;\nprovided, that the foregoing restriction shall not be deemed to prohibit Interested Party or its Representatives from making general public\nsolicitations for employment for any position or from employing any employee of the\nCompany who either responds to such a general solicitation for employment or otherwise contacts Interested Party on his or her own initiative and\nwithout solicitation by Interested Party in contravention of the above restriction. Additionally, the above restriction shall not be deemed to prohibit\nInterested Party from making offers of employment or offering retention packages to any employees of Company or any of its affiliates in\nconnection with the Proposed Transaction, provided that such offers have been disclosed to the Board of Directors of the Company.\n4.\nSECURITIES ISSUES.\n4.1 No Public Disclosure Required. Each party expressly confirms and agrees that, as of the date hereof, it is not required to make any public\ndisclosure with respect to (a) the Proposed Transaction (or the terms or conditions or any other facts relating thereto), (b) any item of Proprietary\nInformation (or the fact that Proprietary Information has been made available to such party), or (c) any discussions or negotiations taking place\nbetween the parties with respect to the Proposed Transaction, whether pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange\nAct"), the rules and regulations promulgated thereunder, or similar requirements related to general disclosure. If, after the date of this Agreement,\neither party determines that any such disclosure is required, no such disclosure shall be made unless and until such party consults with the other party\nregarding the necessity and form of any such disclosure, and provides the other party a reasonable opportunity to review the proposed disclosure and\ncomment thereon.\n4.2 Restrictions on Sales of Securities. Each party is aware, and will advise its Representatives who are informed of the matters that are the\nsubject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who\nhas received material, non-public information from the issuer of such securities and on the communication of such information to any other person\nwhen it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information. However, this\nwill not prevent Receiving Party from purchasing stock through its benefit plans in the ordinary course of business.\n5. OWNERSHIP.\nAll Proprietary Information (including, without limitation, all copies, extracts and portions thereof) is and shall remain the sole property of\nDisclosing Party, provided, that all Derived Information shall be the sole property of Receiving Party. Receiving Party does not acquire (by license or\notherwise, whether express or implied) any intellectual property rights or other rights under this Agreement or any disclosure hereunder, except the\nlimited right to use such Proprietary Information in accordance with the express provisions of this Agreement. All rights relating to the Proprietary\nInformation that are not expressly granted hereunder to Interested Party are reserved and retained by Disclosing Party.\n6. TERM.\nExcept as otherwise provided herein, the obligations of this Agreement, including the restrictions on disclosure and use, shall\nterminate\non\nthe\nsecond anniversary of the Effective Date; provided that Sections 2.5, 2.6, and 2.7 and Articles 4, 5, 6, 7, 8 and 9 shall survive any termination of this\nAgreement.\n7. REMEDIES.\nReceiving Party agrees that, due to the unique nature of the Proprietary Information, the unauthorized disclosure or use of the Proprietary\nInformation may cause injury to Disclosing Party, the extent of which will be difficult to ascertain and for which there may be no adequate remedy\nat\nlaw. Accordingly, Receiving Party agrees that Disclosing Company, in addition to any other available\nremedies, may have the right to seek an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Agreement\nas ordered by the court. Receiving Party shall notify Disclosing Party immediately if Receiving Party has reason to believe that any person who has\nhad access to the Proprietary Information (including Receiving Party or any of its Representatives) has violated or intends to violate the terms of this\nAgreement or otherwise disclose any Proprietary Information in violation of the terms hereof. Any and all remedies herein expressly conferred upon\na party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such party, and the\nexercise by a party of any one remedy will not preclude the exercise of any other remedy.\n8.\nRETURN OF MATERIALS.\nIf either party hereto shall determine that it does not wish to proceed with the Proposed Transaction, such party shall promptly advise the other\nparty of that decision. In that case, or if the Proposed Transaction otherwise is not consummated for any reason, Receiving Party shall, upon\nDisclosing Party's written request, promptly deliver to Disclosing Party all Proprietary Information, and, at Disclosing Party's sole election, return or\ndestroy (provided that any such destruction shall be certified by a duly authorized Representative of Receiving Party) all copies, reproductions,\nsummaries, analyses or extracts thereof or based thereon (whether in hard-copy form or on intangible media, such as electronic mail or computer\nfiles) in Receiving Party's or any of its Representatives' possession; provided, that if a legal proceeding has been instituted to seek disclosure of the\nProprietary Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been\nrendered. However, Receiving Party may retain in the office of its legal counsel, one copy of Proprietary Information for record purposes only.\nNotwithstanding the return or destruction of any Proprietary Information, or documents or material containing or reflecting any Proprietary\nInformation, the parties will continue to be bound by their obligations of confidentiality and other obligations hereunder for the term of this\nAgreement (or such other term as may be applicable to the specific obligation), except as otherwise specifically provided herein.\n9. MISCELLANEOUS.\n9.1 Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the confidentiality of the Proprietary\nInformation in connection with the Proposed Transaction and related matters and supersedes all prior or contemporaneous representations,\ndiscussions, proposals, negotiations, conditions, communications and agreements, whether oral or written, between the parties relating to the same\nand all past courses of dealing or industry custom.\n9.2 Beneficiaries. This Agreement shall inure to the benefit of and be binding upon Interested Party and Company and their respective\nsuccessors and permitted assigns.\n9.3 Amendments and Waivers. No amendment, modification or waiver of any provision of this Agreement shall be effective unless in writing\nand signed by duly authorized signatories of both parties. The waiver by either party of a breach of or a default under any provision of this\nAgreement shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor\nshall any delay or omission on the part of either party to exercise or avail itself of any right, power, privilege or remedy that it has or may have\nhereunder operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other further exercise of any such right, power,\nprivilege or remedy hereunder.\n9.4 Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota without regard\nto conflicts of laws principles.\n9.5 Jurisdiction; Waiver of Jury Trial. The parties hereto agree that any and all actions or proceedings seeking to enforce any provision of,\nor based on any right arising out of, this Agreement shall be brought in the courts of the State of California, County of Los Angeles, including\nFederal Courts located therein, should Federal jurisdiction requirements exist. Each of the parties consents to the jurisdiction of such courts (and\nof\nthe appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. Process in any action or proceeding\nreferred to in the preceding sentence may be served on any party anywhere in the world. The parties hereto specifically waive any right to a jury trial\nwith respect to any matter arising under this Agreement.\n9.6 Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines in a final, non-appealable\norder that a party has breached this Agreement, then such party shall be liable and pay to the non-breaching party the reasonable costs and expenses\n(including reasonable legal fees and expenses) such non-breaching party has incurred in connection with the enforcement of this Agreement,\nincluding any appeal therefrom.\n9.7 Severability.. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to\nbe\ninvalid or unenforceable, the remaining portions hereof shall remain in full force and effect and such provision shall be enforced to the maximum\nextent possible so as to effect the intent of the parties, and shall in no way be affected, impaired or invalidated.\n9.8 Notices. Any notice or other communication required or permitted to be delivered under this Agreement shall be in writing and shall be\ndeemed effectively given: (i) upon personal delivery to the party to be notified; (ii) when sent by confirmed telex or facsimile if sent during normal\nbusiness hours of the recipient, if not, then on the next business day; (iii) three (3) days after having been sent by registered or certified mail, return\nreceipt requested, postage prepaid; or (iv) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with\nwritten verification of receipt, to the address or facsimile number set forth beneath the name of each party below (or to such other address or\nfacsimile number as such party may designate by five (5) days advance written notice to the other party hereto).\n9.9 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this\nAgreement and all of which, when taken together, will be deemed to constitute one and the same instrument.\n[SIGNATURES FOLLOW ON THE NEXT PAGE]\nIN WITNESS WHEREOF, the parties have duly authorized and caused this Non-Disclosure Agreement to be executed as follows:\nCOMPANy\nCogent, Inc.\nBy:\n/s/ Paul Kim\n(signature)\nName: Paul Kim\n(print)\nTitle: Chief Financial Officer\nINTERESTED PARTY\n3M Company\nBy:\n/s/ David G. Fellner\n(signature)\nName: David G. Fellner\n(print)\nTitle: Manager, Corporate Development\nAMENDMENT No. 1 TO NON-DISCLOSURE AGREEMENT\nThis Amendment No. 1 to Non-Disclosure Agreement (this "Amendment") dated as of May 31st, 2010 (the "Amendment Date") is entered\ninto between Cogent, Inc., a Delaware corporation ("Company" or "Disclosing Party") and 3M Company, a Delaware corporation ("Interested\nParty" or "Receiving Party") (collectively the "Parties").\nWHEREAS, the Parties previously entered into a Non-Disclosure Agreement dated as of July 31, 2008 (the "Non-Disclosure Agreement");\nWHEREAS, the Parties wish to amend the Non-Disclosure Agreement in certain respects on the terms and conditions set forth herein.\nNOW THEREFORE, the Parties hereby agree as follows:\n1. Section 3.1 of the Non-Disclosure Agreement is hereby amended by replacing "one year anniversary of the Effective Date" in the second\nline of such section with "three year anniversary of the Effective Date."\n2. Section 6 of the Non-Disclosure Agreement is hereby amended by replacing "second anniversary of the Effective Date" in the second line of\nsuch section with "fourth anniversary of the Effective Date."\n3. This Amendment shall be effective for all purposes as of the Amendment Date. The terms and conditions set forth in this Amendment are in\naddition to the terms of the Non-Disclosure Agreement which, except as amended in this Amendment, shall continue to remain in full force and\neffect in accordance with its terms. Any capitalized terms not otherwise defined herein shall have the meanings given such terms in the Non-\nDisclosure Agreement.\n4. This Amendment may be executed in counterparts, each of which shall be deemed to be an original and together shall be deemed to be one\nand the same document.\nIN WITNESS WHEREOF, the Parties have caused this Amendment to be executed by their respective duly authorized representatives\neffective as of the Amendment Date.\n3M Company\nCogent, Inc.\nBy:\n/s/ David G. Fellner\nBy:\n/s/ Paul Kim\nName: David G. Fellner\nName: Paul Kim\nTitle: Manager, 3M Corporate Development\nTitle: Chief Financial Officer EX-99.E .3 4 dex99e3.htm NON-DISCLOSURE AGREEMENT\nExhibit (e)(3)\nNON-DISCLOSURE AGREEMENT\nIn connection with a potential transaction (“Proposed Transaction”) between 3M Company (“Interested Party” or “Receiving Party”), and\nCogent, Inc., a Delaware corporation (“Company” or “Disclosing Party”), the parties wish to protect and preserve the confidential and/or\nproprietary nature of certain information and materials of the Company that may be disclosed or made available to the Interested Party or its\nRepresentatives (as defined below) in connection with certain discussions, negotiations or dealings between the parties relating to the Proposed\nTransaction.\nIn consideration of the foregoing and the rights and obligations set forth herein, both parties hereby agree as of July 31, 2008 (the “Effective\nDate”):\n1. PROPRIETARY INFORMATION AND OTHER DEFINITIONS.\n1.1 “Proprietary Information” means any and all information and material disclosed by Disclosing Party or any of its Representatives to\nReceiving Party or any of its Representatives in connection with the Proposed Transaction or in the course of the parties’ evaluation and negotiation\nof the Proposed Transaction, together with all communications, data, reports, analyses, compilations, studies, interpretations, records, notes, lists,\nfinancial statements or other materials or information prepared by Receiving Party or any of its Representatives that contain or otherwise reflect or\nare based upon, in whole or in part, any Proprietary Information of Disclosing Party or that reflect the review of, interest in, or evaluation of all or\nany portion of the Proposed Transaction or Disclosing Party’s business (collectively, “Derived Information”), whether tangible or intangible,\nfurnished or prepared in writing or in oral, graphic, electronic or any other form or manner. In addition, Proprietary Information shall include (x) the\nfact that discussions or negotiations are taking place concerning the Proposed Transaction or that Interested Party has made or may make an offer to\nacquire Company’s stock or assets or that any Proprietary Information has been shared between the parties and their respective Representatives in\nconnection therewith, (y) the proposed terms and conditions of the Proposed Transaction (including any financial terms and conditions) and the\nstatus thereof, and (z) the existence, context, and scope of this Agreement.\nProprietary Information shall not include information that: (i) is or becomes generally available to the public other than as a result of any\ndisclosure or other action or inaction by Receiving Party in breach of this Agreement (including any disclosure or other action or inaction by\nRepresentatives of Receiving Party that would constitute a breach of this Agreement if undertaken by Receiving Party itself); (ii) is or becomes\nknown or available to Receiving Party or any of its Representatives on a non-confidential basis from a source (other than Disclosing Party or any of\nits subsidiaries, affiliates or Representatives) that, to the best of the knowledge of Receiving Party, is not prohibited from disclosing such Proprietary\nInformation to Receiving Party by a contractual, legal or fiduciary obligation; or (iii) is or was independently developed by Receiving Party or any of\nits Representatives without violation of any obligation under this Agreement.\n1.2 “Representatives” means as to any person, its directors, officers, employees, agents and advisors (including, without limitation, financial\nadvisors, financing sources, attorneys, accountants and their respective Representatives).\n1.3 “person” shall be broadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual.\n2. NON-DISCLOSURE AND LIMITED USE.\n2.1 Non-Disclosure. Without the written consent of Disclosing Party and except as otherwise required by applicable law, Receiving Party shall\nkeep, and shall cause its Representatives to keep, all Proprietary Information confidential and shall not disclose or reveal, and shall cause its\nRepresentatives not to disclose or reveal, in any manner whatsoever, in whole or in part, any Proprietary Information to any person, other than to its\nRepresentatives who are actively and directly participating in its evaluation of the Proposed Transaction or who otherwise need to know the\nProprietary Information for the purpose of evaluating the Proposed Transaction and who are bound by restrictions regarding the disclosure and use of\nsuch Proprietary Information (either contractual, legal or fiduciary) owed to Company, Interested Party or any their respective Representatives that\nare comparable to and no less restrictive than those set forth in this Agreement. Each party shall inform all of its respective Representatives and shall\ncause its respective Representatives to inform their Representatives who receive Proprietary Information hereunder of the confidential nature of such\ninformation and the Proposed Transaction, as well as the terms of this Agreement. Receiving Party shall not, and shall cause its Representatives to\nnot, use any Proprietary Information for any purpose other than to evaluate the Proposed Transaction or in connection with the consummation of the\nProposed Transaction. Each party shall be responsible for any breach of the terms of this Agreement by it or its Representatives.\n2.2 Degree of Care. Receiving Party shall take the same degree of care that it uses to protect its own confidential and proprietary information\nof similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the use, disclosure, publication or\ndissemination of the Proprietary Information of Disclosing Party. Receiving Party shall not, and shall cause its Representatives to not, decompile,\ndisassemble or otherwise reverse engineer (except to the extent expressly permitted by applicable law, notwithstanding a contractual obligation to the\ncontrary) any Proprietary Information or any portion thereof, or determine or attempt to determine any source code, algorithms, methods or\ntechniques embodied in any Proprietary Information or any portion thereof. Receiving Party shall not use Proprietary Information for any purpose or\nin any manner that would constitute a violation of any laws or regulations, including without limitation the export control laws of the United States.\n2.3 Designated Representatives. Neither Interested Party nor its Representatives shall initiate or maintain contact with any officer, director,\nstockholder, employee or agent of Company or its subsidiaries regarding the Proposed Transaction, except with the express consent of Company. All\n(i) communications regarding the Proposed Transaction, (ii) requests for additional information, (iii) requests for on-site access or management\nmeetings and (iv) discussions or questions regarding procedures, will be submitted or directed to the Representatives designated by the Company.\n2.4 Compelled Disclosure of Proprietary Information. If Receiving Party or any of its Representatives are requested pursuant to, or required\nby, applicable law or regulation (including, without limitation, any rule, regulation or policy statement of any national securities exchange, market or\nautomated quotation system on which any of Receiving Party’s securities are listed or quoted) or by legal process to disclose any Proprietary\nInformation, or any other information concerning Disclosing Party, its subsidiaries or affiliates, Receiving Party shall provide Disclosing Party with\nprompt notice of such request or requirement, in order to enable Disclosing Party (a) to seek an appropriate protective order or other remedy, (b) to\nconsult with Receiving Party with respect to Disclosing Party’s taking steps to resist or narrow the scope of such request or legal process or (c) to\nwaive compliance, in whole or in part, with the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or\nDisclosing Party waives compliance, in whole or in part, with the terms of this Agreement, Receiving Party or its Representatives, as the case may\nbe, shall use commercially reasonable efforts to disclose only that portion of the Proprietary Information which Receiving Party is advised by legal\ncounsel is legally required to be disclosed and exercise its commercially reasonable efforts to obtain reliable assurances that confidential treatment\nwill be accorded to the Proprietary Information so disclosed.\n2.5 Attorney-Client Privilege. To the extent that any Proprietary Information may include material subject to the attorney-client privilege,\nwork product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the\nparties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual\nunderstanding that the disclosure of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material\nor its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege and any such Proprietary\nInformation shall remain entitled to all protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this\nAgreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\n2.6 Definitive Agreement. Until a definitive agreement regarding the Proposed Transaction has been executed by the parties hereto, neither\nparty hereto shall be under any legal obligation or have any liability to the other party of any nature whatsoever with respect to the Proposed\nTransaction by virtue of this Agreement or otherwise (other than with respect to the confidentiality and other matters set forth herein). Each party\nhereto and its Representatives (i) may conduct the process that may or may not result in the Proposed Transaction in such manner as such party, in its\nsole discretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third party without notice\nto the other party) and (ii) reserves the right to change (in its sole discretion, at any time and without notice to the other party) the procedures relating\nto the parties’ consideration of the Proposed Transaction (including, without limitation, terminating all further discussions with the other party). For\npurposes of this Agreement, the term “definitive agreement” does not include an executed letter of intent or any other preliminary written agreement\nin principle.\n2.7 No Representations or Warranties Regarding Proprietary Information. Subject to the terms and conditions of a definitive agreement\nregarding the Proposed Transaction and without prejudice thereto, each party acknowledges that neither the other party nor its Representatives nor\nany of the officers, directors, employees, agents or controlling persons of such Representatives makes any express or implied representation or\nwarranty as to the completeness of the Proprietary Information or any use thereof. Each party hereby expressly disclaims all such warranties,\nincluding any implied warranties of merchantability and fitness for a particular purpose, non-infringement and accuracy, and any warranties arising\nout of course of performance, course of dealing or usage of trade. Receiving Party shall not be entitled to rely on the completeness of any Proprietary\nInformation, but shall be entitled to rely solely on such representations and warranties regarding the completeness of the Proprietary Information as\nmay be made to it in a definitive agreement relating to the Proposed Transaction, subject to the terms and conditions of any such agreement, should\nthe discussions between the parties progress to such a point.\n3. NO SOLICITATION.\n3.1 No Solicitation of Employees. Interested Party agrees that neither it nor its affiliates will at any time until the one year anniversary of the\nEffective Date, directly or indirectly, employ or solicit for employment (i) any key technical or management personnel of the Company that has first\nbeen introduced by the Company to the Interested Party in connection with the Proposed Transaction or who was otherwise substantively involved in\nthe discussions of the Proposed Transaction or (ii) any other person who is now employed as an officer of the other party or any of its affiliates;\nprovided, that the foregoing restriction shall not be deemed to prohibit Interested Party or its Representatives from making general public\nsolicitations for employment for any position or from employing any employee of the\nCompany who either responds to such a general solicitation for employment or otherwise contacts Interested Party on his or her own initiative and\nwithout solicitation by Interested Party in contravention of the above restriction. Additionally, the above restriction shall not be deemed to prohibit\nInterested Party from making offers of employment or offering retention packages to any employees of Company or any of its affiliates in\nconnection with the Proposed Transaction, provided that such offers have been disclosed to the Board of Directors of the Company.\n4. SECURITIES ISSUES.\n4.1 No Public Disclosure Required. Each party expressly confirms and agrees that, as of the date hereof, it is not required to make any public\ndisclosure with respect to (a) the Proposed Transaction (or the terms or conditions or any other facts relating thereto), (b) any item of Proprietary\nInformation (or the fact that Proprietary Information has been made available to such party), or (c) any discussions or negotiations taking place\nbetween the parties with respect to the Proposed Transaction, whether pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange\nAct”), the rules and regulations promulgated thereunder, or similar requirements related to general disclosure. If, after the date of this Agreement,\neither party determines that any such disclosure is required, no such disclosure shall be made unless and until such party consults with the other party\nregarding the necessity and form of any such disclosure, and provides the other party a reasonable opportunity to review the proposed disclosure and\ncomment thereon.\n4.2 Restrictions on Sales of Securities. Each party is aware, and will advise its Representatives who are informed of the matters that are the\nsubject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who\nhas received material, non-public information from the issuer of such securities and on the communication of such information to any other person\nwhen it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information. However, this\nwill not prevent Receiving Party from purchasing stock through its benefit plans in the ordinary course of business.\n5. OWNERSHIP.\nAll Proprietary Information (including, without limitation, all copies, extracts and portions thereof) is and shall remain the sole property of\nDisclosing Party, provided, that all Derived Information shall be the sole property of Receiving Party. Receiving Party does not acquire (by license or\notherwise, whether express or implied) any intellectual property rights or other rights under this Agreement or any disclosure hereunder, except the\nlimited right to use such Proprietary Information in accordance with the express provisions of this Agreement. All rights relating to the Proprietary\nInformation that are not expressly granted hereunder to Interested Party are reserved and retained by Disclosing Party.\n6. TERM.\nExcept as otherwise provided herein, the obligations of this Agreement, including the restrictions on disclosure and use, shall terminate on the\nsecond anniversary of the Effective Date; provided that Sections 2.5, 2.6, and 2.7 and Articles 4, 5, 6, 7, 8 and 9 shall survive any termination of this\nAgreement.\n7. REMEDIES.\nReceiving Party agrees that, due to the unique nature of the Proprietary Information, the unauthorized disclosure or use of the Proprietary\nInformation may cause injury to Disclosing Party, the extent of which will be difficult to ascertain and for which there may be no adequate remedy at\nlaw. Accordingly, Receiving Party agrees that Disclosing Company, in addition to any other available\nremedies, may have the right to seek an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Agreement\nas ordered by the court. Receiving Party shall notify Disclosing Party immediately if Receiving Party has reason to believe that any person who has\nhad access to the Proprietary Information (including Receiving Party or any of its Representatives) has violated or intends to violate the terms of this\nAgreement or otherwise disclose any Proprietary Information in violation of the terms hereof. Any and all remedies herein expressly conferred upon\na party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such party, and the\nexercise by a party of any one remedy will not preclude the exercise of any other remedy.\n8. RETURN OF MATERIALS.\nIf either party hereto shall determine that it does not wish to proceed with the Proposed Transaction, such party shall promptly advise the other\nparty of that decision. In that case, or if the Proposed Transaction otherwise is not consummated for any reason, Receiving Party shall, upon\nDisclosing Party’s written request, promptly deliver to Disclosing Party all Proprietary Information, and, at Disclosing Party’s sole election, return or\ndestroy (provided that any such destruction shall be certified by a duly authorized Representative of Receiving Party) all copies, reproductions,\nsummaries, analyses or extracts thereof or based thereon (whether in hard-copy form or on intangible media, such as electronic mail or computer\nfiles) in Receiving Party’s or any of its Representatives’ possession; provided, that if a legal proceeding has been instituted to seek disclosure of the\nProprietary Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been\nrendered. However, Receiving Party may retain in the office of its legal counsel, one copy of Proprietary Information for record purposes only.\nNotwithstanding the return or destruction of any Proprietary Information, or documents or material containing or reflecting any Proprietary\nInformation, the parties will continue to be bound by their obligations of confidentiality and other obligations hereunder for the term of this\nAgreement (or such other term as may be applicable to the specific obligation), except as otherwise specifically provided herein.\n9. MISCELLANEOUS.\n9.1 Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the confidentiality of the Proprietary\nInformation in connection with the Proposed Transaction and related matters and supersedes all prior or contemporaneous representations,\ndiscussions, proposals, negotiations, conditions, communications and agreements, whether oral or written, between the parties relating to the same\nand all past courses of dealing or industry custom.\n9.2 Beneficiaries. This Agreement shall inure to the benefit of and be binding upon Interested Party and Company and their respective\nsuccessors and permitted assigns.\n9.3 Amendments and Waivers. No amendment, modification or waiver of any provision of this Agreement shall be effective unless in writing\nand signed by duly authorized signatories of both parties. The waiver by either party of a breach of or a default under any provision of this\nAgreement shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor\nshall any delay or omission on the part of either party to exercise or avail itself of any right, power, privilege or remedy that it has or may have\nhereunder operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other further exercise of any such right, power,\nprivilege or remedy hereunder.\n9.4 Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota without regard\nto conflicts of laws principles.\n9.5 Jurisdiction; Waiver of Jury Trial. The parties hereto agree that any and all actions or proceedings seeking to enforce any provision of,\nor based on any right arising out of, this Agreement shall be brought in the courts of the State of California, County of Los Angeles, including\nFederal Courts located therein, should Federal jurisdiction requirements exist. Each of the parties consents to the jurisdiction of such courts (and of\nthe appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. Process in any action or proceeding\nreferred to in the preceding sentence may be served on any party anywhere in the world. The parties hereto specifically waive any right to a jury trial\nwith respect to any matter arising under this Agreement.\n9.6 Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines in a final, non-appealable\norder that a party has breached this Agreement, then such party shall be liable and pay to the non-breaching party the reasonable costs and expenses\n(including reasonable legal fees and expenses) such non-breaching party has incurred in connection with the enforcement of this Agreement,\nincluding any appeal therefrom.\n9.7 Severability. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to\nbe invalid or unenforceable, the remaining portions hereof shall remain in full force and effect and such provision shall be enforced to the maximum\nextent possible so as to effect the intent of the parties, and shall in no way be affected, impaired or invalidated.\n9.8 Notices. Any notice or other communication required or permitted to be delivered under this Agreement shall be in writing and shall be\ndeemed effectively given: (i) upon personal delivery to the party to be notified; (ii) when sent by confirmed telex or facsimile if sent during normal\nbusiness hours of the recipient, if not, then on the next business day; (iii) three (3) days after having been sent by registered or certified mail, return\nreceipt requested, postage prepaid; or (iv) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with\nwritten verification of receipt, to the address or facsimile number set forth beneath the name of each party below (or to such other address or\nfacsimile number as such party may designate by five (5) days advance written notice to the other party hereto).\n9.9 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this\nAgreement and all of which, when taken together, will be deemed to constitute one and the same instrument.\n[SIGNATURES FOLLOW ON THE NEXT PAGE]\nIN WITNESS WHEREOF, the parties have duly authorized and caused this Non-Disclosure Agreement to be executed as follows:\nCOMPANY\nCogent, Inc.\nBy: /s/ Paul Kim\n(signature)\nName: Paul Kim\n(print)\nTitle: Chief Financial Officer\nINTERESTED PARTY\n3M Company\nBy: /s/ David G. Fellner\n(signature)\nName: David G. Fellner\n(print)\nTitle: Manager, Corporate Development\nAMENDMENT NO. 1 TO NON-DISCLOSURE AGREEMENT\nThis Amendment No. 1 to Non-Disclosure Agreement (this “Amendment”) dated as of May 31st, 2010 (the “Amendment Date”), is entered\ninto between Cogent, Inc., a Delaware corporation (“Company” or “Disclosing Party”) and 3M Company, a Delaware corporation (“Interested\nParty” or “Receiving Party”) (collectively the “Parties”).\nWHEREAS, the Parties previously entered into a Non-Disclosure Agreement dated as of July 31, 2008 (the “Non-Disclosure Agreement”);\nWHEREAS, the Parties wish to amend the Non-Disclosure Agreement in certain respects on the terms and conditions set forth herein.\nNOW THEREFORE, the Parties hereby agree as follows:\n1. Section 3.1 of the Non-Disclosure Agreement is hereby amended by replacing “one year anniversary of the Effective Date” in the second\nline of such section with “three year anniversary of the Effective Date.”\n2. Section 6 of the Non-Disclosure Agreement is hereby amended by replacing “second anniversary of the Effective Date” in the second line of\nsuch section with “fourth anniversary of the Effective Date.”\n3. This Amendment shall be effective for all purposes as of the Amendment Date. The terms and conditions set forth in this Amendment are in\naddition to the terms of the Non-Disclosure Agreement which, except as amended in this Amendment, shall continue to remain in full force and\neffect in accordance with its terms. Any capitalized terms not otherwise defined herein shall have the meanings given such terms in the Non-\nDisclosure Agreement.\n4. This Amendment may be executed in counterparts, each of which shall be deemed to be an original and together shall be deemed to be one\nand the same document.\nIN WITNESS WHEREOF, the Parties have caused this Amendment to be executed by their respective duly authorized representatives\neffective as of the Amendment Date.\n3M Company\nCogent, Inc.\nBy: /s/ David G. Fellner\nBy: /s/ Paul Kim\nName: David G. Fellner\nName: Paul Kim\nTitle: Manager, 3M Corporate Development\nTitle: Chief Financial Officer 43568120ee0987b6dc67d4cf0f5b4802.pdf effective_date jurisdiction party term EXHIBIT N\nFORM OF NON-DISCLOSURE AGREEMENT\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (this "Agreement") is entered into as of ____________________ (the "Effective Date"), and is by and\nbetween Penumbra, Inc., a Delaware corporation, having an address at One Penumbra Place, Alameda, CA 94502 ("Penumbra"), and _________________, a\n____________\ncorporation, having an address at ________________________ ("Recipient"). Affiliates of a party are included in the definition of a party.\nWHEREAS, Penumbra desires to disclose, and Recipient desires to receive, Penumbra Confidential Information (as defined below); and\nWHEREAS, Recipient acknowledges that the Penumbra Confidential Information has been acquired at great expense and investment and is a valuable\nbusiness asset of Penumbra; and\nWHEREAS, Recipient recognizes that the unauthorized disclosure of Penumbra Confidential Information will cause substantial injury to Penumbra;\nNOW, THEREFORE, in consideration of the mutual promises and other good and valuable consideration, the receipt and adequacy of which are\nhereby acknowledged, the parties agree as follows:\n1. Confidentiality Obligation. Recipient shall:\n(a)\nreceive, hold and maintain the Penumbra Confidential Information in strict confidence;\n(b)\ntake the same degree of care that it uses to protect its own confidential and/or proprietary information and materials of similar nature\nand importance (but in no event less than reasonable care) to protect confidentiality and to avoid unauthorized use, disclosure,\npublication or dissemination of the Penumbra Confidential Information;\n(c)\nuse the Penumbra Confidential Information solely for the purposes of evaluating whether to enter into a subsequent business\nrelationship or performing its obligations under an existing or future business relationship, and shall not use or exploit the Penumbra\nConfidential Information for its own benefit or the benefit of a third party; and\n(d)\nnot disclose, distribute, reproduce, reverse engineer, transfer or transmit, directly or indirectly, the Penumbra Confidential\nInformation without the prior written consent of Penumbra.\n2. Penumbra Confidential Information. Penumbra Confidential Information means, without limitation, any information disclosed by Penumbra to\nRecipient or obtained by Recipient through inspection or observation of Penumbra's property or facilities. Such information may be provided in writing or\nelectronically, orally or visually, and will be marked as "confidential" or "proprietary" or, if disclosed orally or visually, will be identified as confidential and/or\nproprietary at the time of such disclosure. Additionally, where the confidential and/or proprietary nature of the information disclosed is, or reasonably should be,\napparent based on the type of information and/or the context in which it is disclosed, such information will be considered Penumbra Confidential Information.\nPenumbra Confidential Information includes but is not limited to drawings, designs, notes, reports, presentations, data, and know-how that relates to Penumbra's\nbusiness, including but not limited to, pricing strategy and financial data, plans, models and forecasts; products and/or services; research and development\nprojects and activities; clinical trials; manufacturing techniques, processes and operations; policies; vendors; customers; sales; marketing; software and\nhardware; technology; and the like. Additionally, Penumbra Confidential Information includes any reports or documents created by Recipient that include,\nsummarize, refer to or use the Penumbra Confidential Information.\n3. Exclusions. Penumbra Confidential Information shall not include information that:\n-108-\n(a)\nwas in the lawful possession of Recipient prior to disclosure by Penumbra, as demonstrated by competent evidence;\n(b)\nis, at the time of disclosure, already available in the public domain or becomes publicly available through no act or omission of\nRecipient in breach of this Agreement;\n(c)\nis disclosed to Recipient by a third party not under an obligation of confidentiality to Penumbra; or\n(d)\nis or has been independently developed by Recipient without breach of this Agreement, as demonstrated by competent evidence.\nRecipient shall bear the burden of establishing any of the foregoing exclusions.\n4. Permitted Access to Penumbra Confidential Information. Penumbra Confidential Information shall only be disclosed to persons who are under\na duty of confidentiality to Recipient at least as stringent as the duties set forth herein. Recipient shall advise its employees who may have access to the\nPenumbra Confidential Information of its confidential nature and the obligations set forth in this Agreement. In the event of an inadvertent disclosure of the\nPenumbra Confidential Information, Recipient shall immediately notify Penumbra and shall take all measures practicable to limit and/or prevent further\ndisclosure.\n5. Required Disclosure. Notwithstanding any provision herein to the contrary, in the event that Recipient is required by judicial, administrative or\ngovernmental order to disclose the Penumbra Confidential Information or any portion thereof, Recipient may disclose the Penumbra Confidential Information\nwithout liability hereunder; provided, however, that Recipient shall first notify Penumbra of such requirement in advance of such planned disclosure so that\nPenumbra has an opportunity to take any available lawful actions to prevent or minimize the extent of disclosure of the Penumbra Confidential Information,\nincluding but not limited to seeking a protective order.\n6. Ownership; No License. The Penumbra Confidential Information, including any modification or enhancement thereto or any information based\non or derived therefrom, is and shall remain the property of Penumbra. Nothing in this Agreement shall be construed as creating an express or implied license or\nright to the Penumbra Confidential Information or to any patent, trademark, copyright or other intellectual property of Penumbra.\n7. No Warranty. Except as may otherwise be agreed to in writing by the parties, no warranties or representations of any kind, whether express or\nimplied, including but not limited to accuracy or completeness, are given by Penumbra with respect to the Penumbra Confidential Information or use thereof.\nThe Penumbra Confidential Information is provided on an "AS IS" basis. Penumbra shall not be liable for any damages arising out of the use of the Penumbra\nConfidential Information by Recipient.\n8. Term. The term of this Agreement shall be two (2) years from the Effective Date, unless terminated earlier in writing by either party; provided,\nhowever, in the event the parties enter or have entered, into a business relationship or other arrangement, the term of this Agreement shall be for two (2) years\nfrom the date of termination or expiration of such business relationship or other arrangement. Notwithstanding the termination or expiration of this Agreement,\nSections 1, 2, 3, 4, 5, 6, 10 and 13 remain in effect indefinitely or until one of the exceptions set forth in Section 3 applies.\n9. Return of Penumbra Confidential Information. Upon termination or expiration of this Agreement or written request of Penumbra, Recipient\nshall return or destroy, at the option of Penumbra, all Penumbra Confidential Information, including without limitation any written or electronic copies,\nsummaries and other documents containing the Penumbra Confidential Information; provided, however, that Recipient may retain one (1) copy of such\nPenumbra Confidential Information solely for archival purposes to ensure compliance with this Agreement. Notwithstanding the foregoing, Recipient may retain\nConfidential Information to the extent required by law and such Penumbra Confidential Information shall be held on a confidential basis. In addition, Recipient\nmay retain electronic files containing the Penumbra Confidential Information created pursuant to automatic archiving and backup procedures or maintain\npursuant to internal or regulatory document retention policies so long as such electronic files are kept confidential in accordance with the terms of this\nAgreement.\n10. Remedies. Recipient hereby acknowledges and agrees that any violation or threat of violation of this Agreement will result in irrevocable harm to\nPenumbra for which damages would be an inadequate remedy and that Penumbra shall be entitled to seek injunctive or other equitable relief. The foregoing\nremedy of equitable relief shall not be the sole or exclusive remedy available to Penumbra.\n-109-\n11. Assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, successors, and assignees.\nExcept for an assignment to a successor-in-interest that acquires a party by merger or acquisition, this Agreement shall not be assigned by either party without\nthe prior written consent of the other party.\n12. Notices. Any notices required hereunder shall be in writing and sent to a party at its address set forth above, or to such other address as may\nsubsequently be designated in writing. Such notice must be delivered in person, sent by first class mail or overnight courier, or transmitted by facsimile or\nthrough email.\n13. Governing Law. This Agreement shall be governed, construed and enforced in accordance with the laws of the State of California, without\napplication of conflicts of law, and both parties consent to the jurisdiction of the federal and state courts located within the State of California.\n14. Entire Agreement. This Agreement sets forth the entire understanding between the parties as to the subject matter herein, and supersedes all\nprevious or contemporaneous understandings, commitments or agreements, whether written or oral, regarding confidentiality. If the parties mutually agree to\nenter into or continue a business relationship or other arrangement and do not enter into a new confidentiality agreement, the terms and conditions set forth\nherein shall apply to such business relationship or other arrangement, unless otherwise set forth in writing by the parties. Any amendment or modification to this\nAgreement must be in writing and signed by authorized representatives of both parties. Nothing in this Agreement shall be construed to create an obligation of\nthe parties to negotiate or enter into any subsequent agreement.\n15. Waiver; Severability. Failure of a party to insist upon the performance of the other party of any provision of this Agreement shall not be treated\nas a modification of this Agreement, nor shall such failure or election be treated as a waiver of the right of such party at any later time to insist upon strict\nperformance of such provision. If any provision of this Agreement is declared void or unenforceable, such provision shall be severed from this Agreement,\nwhich shall otherwise remain in full force and effect.\n16. Counterparts. This Agreement may be signed in any number of counterparts with the same effect as if the signature on each counterpart were on\nthe same instrument. All signatures may be transmitted by facsimile or a PDF attachment to an email, and such facsimile or attachment will, for all purposes, be\ndeemed to be an original signature.\n-110-\nIN WITNESS WHEREOF, the Parties hereto have executed this Agreement by their duly authorized representatives as of the Effective Date set forth\nabove.\nPenumbra, Inc.\nSignature:\nPrinted Name: Robert D. Evans\nTitle: Executive Vice President and General Counsel\nDate: September _____, 2015\nRecipient: Xxxxxx\nSignature:\nPrinted Name:\nTitle:\nDate:\n-111 - EXHIBIT N\nFORM OF NON-DISCLOSURE AGREEMENT\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (this "Agreement") is entered into as of (the "Effective Date"), and is by and\nbetween Penumbra, Inc., a Delaware corporation, having an address at One Penumbra Place, Alameda, CA 94502 ("Penumbra"), and ,a\ncorporation, having an address at ("Recipient"). Affiliates of a party are included in the definition of a party.\nWHEREAS, Penumbra desires to disclose, and Recipient desires to receive, Penumbra Confidential Information (as defined below); and\nWHEREAS, Recipient acknowledges that the Penumbra Confidential Information has been acquired at great expense and investment and is a valuable\nbusiness asset of Penumbra; and\nWHEREAS, Recipient recognizes that the unauthorized disclosure of Penumbra Confidential Information will cause substantial injury to Penumbra;\nNOW, THEREFORE, in consideration of the mutual promises and other good and valuable consideration, the receipt and adequacy of which are\nhereby acknowledged, the parties agree as follows:\n1. Confidentiality Obligation. Recipient shall:\n(a) receive, hold and maintain the Penumbra Confidential Information in strict confidence;\n(b) take the same degree of care that it uses to protect its own confidential and/or proprietary information and materials of similar nature\nand importance (but in no event less than reasonable care) to protect confidentiality and to avoid unauthorized use, disclosure,\npublication or dissemination of the Penumbra Confidential Information;\n(o) use the Penumbra Confidential Information solely for the purposes of evaluating whether to enter into a subsequent business\nrelationship or performing its obligations under an existing or future business relationship, and shall not use or exploit the Penumbra\nConfidential Information for its own benefit or the benefit of a third party; and\n(d) not disclose, distribute, reproduce, reverse engineer, transfer or transmit, directly or indirectly, the Penumbra Confidential\nInformation without the prior written consent of Penumbra.\n2. Penumbra Confidential Information. Penumbra Confidential Information means, without limitation, any information disclosed by Penumbra to\nRecipient or obtained by Recipient through inspection or observation of Penumbra's property or facilities. Such information may be provided in writing or\nelectronically, orally or visually, and will be marked as "confidential" or "proprietary" or, if disclosed orally or visually, will be identified as confidential and/or\nproprietary at the time of such disclosure. Additionally, where the confidential and/or proprietary nature of the information disclosed is, or reasonably should be,\napparent based on the type of information and/or the context in which it is disclosed, such information will be considered Penumbra Confidential Information.\nPenumbra Confidential Information includes but is not limited to drawings, designs, notes, reports, presentations, data, and know-how that relates to Penumbra's\nbusiness, including but not limited to, pricing strategy and financial data, plans, models and forecasts; products and/or services; research and development\nprojects and activities; clinical trials; manufacturing techniques, processes and operations; policies; vendors; customers; sales; marketing; software and\nhardware; technology; and the like. Additionally, Penumbra Confidential Information includes any reports or documents created by Recipient that include,\nsummarize, refer to or use the Penumbra Confidential Information.\n3. Exclusions. Penumbra Confidential Information shall not include information that:\n-108-\n(a) was in the lawful possession of Recipient prior to disclosure by Penumbra, as demonstrated by competent evidence;\n(b) is, at the time of disclosure, already available in the public domain or becomes publicly available through no act or omission of\nRecipient in breach of this Agreement;\n(o) is disclosed to Recipient by a third party not under an obligation of confidentiality to Penumbra; or\n(d) is or has been independently developed by Recipient without breach of this Agreement, as demonstrated by competent evidence.\nRecipient shall bear the burden of establishing any of the foregoing exclusions.\n4. Permitted Access to Penumbra Confidential Information. Penumbra Confidential Information shall only be disclosed to persons who are under\na duty of confidentiality to Recipient at least as stringent as the duties set forth herein. Recipient shall advise its employees who may have access to the\nPenumbra Confidential Information of its confidential nature and the obligations set forth in this Agreement. In the event of an inadvertent disclosure of the\nPenumbra Confidential Information, Recipient shall immediately notify Penumbra and shall take all measures practicable to limit and/or prevent further\ndisclosure.\n5. Required Disclosure. Notwithstanding any provision herein to the contrary, in the event that Recipient is required by judicial, administrative or\ngovernmental order to disclose the Penumbra Confidential Information or any portion thereof, Recipient may disclose the Penumbra Confidential Information\nwithout liability hereunder; provided, however, that Recipient shall first notify Penumbra of such requirement in advance of such planned disclosure so that\nPenumbra has an opportunity to take any available lawful actions to prevent or minimize the extent of disclosure of the Penumbra Confidential Information,\nincluding but not limited to seeking a protective order.\n6. Ownership; No License. The Penumbra Confidential Information, including any modification or enhancement thereto or any information based\non or derived therefrom, is and shall remain the property of Penumbra. Nothing in this Agreement shall be construed as creating an express or implied license or\nright to the Penumbra Confidential Information or to any patent, trademark, copyright or other intellectual property of Penumbra.\n7. No Warranty. Except as may otherwise be agreed to in writing by the parties, no warranties or representations of any kind, whether express or\nimplied, including but not limited to accuracy or completeness, are given by Penumbra with respect to the Penumbra Confidential Information or use thereof.\nThe Penumbra Confidential Information is provided on an "AS IS" basis. Penumbra shall not be liable for any damages arising out of the use of the Penumbra\nConfidential Information by Recipient.\n8. Term. The term of this Agreement shall be two (2) years from the Effective Date, unless terminated earlier in writing by either party; provided,\nhowever, in the event the parties enter or have entered, into a business relationship or other arrangement, the term of this Agreement shall be for two (2) years\nfrom the date of termination or expiration of such business relationship or other arrangement. Notwithstanding the termination or expiration of this Agreement,\nSections 1, 2, 3, 4, 5, 6, 10 and 13 remain in effect indefinitely or until one of the exceptions set forth in Section 3 applies.\n9. Return of Penumbra Confidential Information. Upon termination or expiration of this Agreement or written request of Penumbra, Recipient\nshall return or destroy, at the option of Penumbra, all Penumbra Confidential Information, including without limitation any written or electronic copies,\nsummaries and other documents containing the Penumbra Confidential Information; provided, however, that Recipient may retain one (1) copy of such\nPenumbra Confidential Information solely for archival purposes to ensure compliance with this Agreement. Notwithstanding the foregoing, Recipient may retain\nConfidential Information to the extent required by law and such Penumbra Confidential Information shall be held on a confidential basis. In addition, Recipient\nmay retain electronic files containing the Penumbra Confidential Information created pursuant to automatic archiving and backup procedures or maintain\npursuant to internal or regulatory document retention policies so long as such electronic files are kept confidential in accordance with the terms of this\nAgreement.\n10. Remedies. Recipient hereby acknowledges and agrees that any violation or threat of violation of this Agreement will result in irrevocable harm to\nPenumbra for which damages would be an inadequate remedy and that Penumbra shall be entitled to seek injunctive or other equitable relief. The foregoing\nremedy of equitable relief shall not be the sole or exclusive remedy available to Penumbra.\n-109-\n11. Assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, successors, and assignees.\nExcept for an assignment to a successor-in-interest that acquires a party by merger or acquisition, this Agreement shall not be assigned by either party without\nthe prior written consent of the other party.\n12. Notices. Any notices required hereunder shall be in writing and sent to a party at its address set forth above, or to such other address as may\nsubsequently be designated in writing. Such notice must be delivered in person, sent by first class mail or overnight courier, or transmitted by facsimile or\nthrough email.\n13. Governing Law. This Agreement shall be governed, construed and enforced in accordance with the laws of the State of California, without\napplication of conflicts of law, and both parties consent to the jurisdiction of the federal and state courts located within the State of California.\n14. Entire Agreement. This Agreement sets forth the entire understanding between the parties as to the subject matter herein, and supersedes all\nprevious or contemporaneous understandings, commitments or agreements, whether written or oral, regarding confidentiality. If the parties mutually agree to\nenter into or continue a business relationship or other arrangement and do not enter into a new confidentiality agreement, the terms and conditions set forth\nherein shall apply to such business relationship or other arrangement, unless otherwise set forth in writing by the parties. Any amendment or modification to this\nAgreement must be in writing and signed by authorized representatives of both parties. Nothing in this Agreement shall be construed to create an obligation of\nthe parties to negotiate or enter into any subsequent agreement.\n15. Waiver; Severability. Failure of a party to insist upon the performance of the other party of any provision of this Agreement shall not be treated\nas a modification of this Agreement, nor shall such failure or election be treated as a waiver of the right of such party at any later time to insist upon strict\nperformance of such provision. If any provision of this Agreement is declared void or unenforceable, such provision shall be severed from this Agreement,\nwhich shall otherwise remain in full force and effect.\n16. Counterparts. This Agreement may be signed in any number of counterparts with the same effect as if the signature on each counterpart were on\nthe same instrument. All signatures may be transmitted by facsimile or a PDF attachment to an email, and such facsimile or attachment will, for all purposes, be\ndeemed to be an original signature.\n-110-\nIN WITNESS WHEREQOF, the Parties hereto have executed this Agreement by their duly authorized representatives as of the Effective Date set forth\nabove.\nPenumbra, Inc. Recipient: Xxxxxx\nSignature: Signature:\nPrinted Name: Robert D. Evans Printed Name:\nTitle: Executive Vice President and General Counsel Title:\nDate: September , 2015 Date:\n-111- EXHIBIT N\nFORM OF NON-DISCLOSURE AGREEMENT\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (this "Agreement") is entered into as of\n(the "Effective Date"), and is by and\nbetween Penumbra, Inc., a Delaware corporation, having an address at One Penumbra Place, Alameda, CA 94502 ("Penumbra"), and\na\ncorporation, having an address at ("Recipient"). Affiliates of a party are included in the definition of a party.\nWHEREAS, Penumbra desires to disclose, and Recipient desires to receive, Penumbra Confidential Information (as defined below); and\nWHEREAS, Recipient acknowledges that the Penumbra Confidential Information has been acquired at great expense and investment and is a valuable\nbusiness asset of Penumbra; and\nWHEREAS, Recipient recognizes that the unauthorized disclosure of Penumbra Confidentia Information will cause substantial injury to Penumbra;\nNOW, THEREFORE, in consideration of the mutual promises and other good and valuable consideration, the receipt and adequacy of which are\nhereby acknowledged, the parties agree as follows:\n1. Confidentiality Obligation. Recipient shall:\n(a)\nreceive, hold and maintain the Penumbra Confidential Information in strict confidence;\n(b)\ntake the same degree of care that it uses to protect its own confidential and/or proprietary information and materials of similar nature\nand importance (but in no event less than reasonable care) to protect confidentiality and to avoid unauthorized use, disclosure,\npublication or dissemination of the Penumbra Confidential Information;\n(c)\nuse the Penumbra Confidential Information solely for the purposes of evaluating whether to enter into a subsequent business\nrelationship or performing its obligations under an existing or future business relationship, and shall not use or exploit the Penumbra\nConfidentia Information for its own benefit or the benefit of a third party; and\n(d)\nnot disclose, distribute, reproduce, reverse engineer, transfer or transmit, directly or indirectly, the Penumbra Confidential\nInformation without the prior written consent of Penumbra.\n2. Penumbra Confidential Information Penumbra Confidential Information means, without limitation, any information disclosed by Penumbra to\nRecipient or obtained by Recipient through inspection or observation of Penumbra's property or facilities. Such information may be provided in writing or\nelectronically, orally or visually, and will be marked as "confidential" or "proprietary" or, if disclosed orally or visually, will be identified as confidential and/or\nproprietary at the time of such disclosure. Additionally, where the confidential and/or proprietary nature of the information disclosed is, or reasonably should be,\napparent based on the type of information and/or the context in which it is disclosed, such information will be considered Penumbra Confidential Information.\nPenumbra Confidential Information includes but is not limited to drawings, designs, notes, reports, presentations, data, and know-how that relates to Penumbra's\nbusiness, including but not limited to, pricing strategy and financial data, plans, models and forecasts; products and/or services; research and development\nprojects and activities; clinical trials; manufacturing techniques, processes and operations; policies; vendors; customers; sales; marketing; software and\nhardware; technology; and the like. Additionally, Penumbra Confidential Information includes any reports or documents created by Recipient that include\nsummarize, refer to or use the Penumbra Confidential Information.\n3. Exclusions. Penumbra Confidential Information shall not include information that:\n-108-\n(a)\nwas in the lawful possession of Recipient prior to disclosure by Penumbra, as demonstrated by competent evidence;\n(b)\nis, at the time of disclosure, already available in the public domain or becomes publicly available through no act or omission of\nRecipient in breach of this Agreement;\n(c)\nis disclosed to Recipient by a third party not under an obligation of confidentiality to Penumbra; or\n(d)\nis or has been independently developed by Recipient without breach of this Agreement, as demonstrated by competent evidence.\nRecipient shall bear the burden of establishing any of the foregoing exclusions.\n4. Permitted Access to Penumbra Confidential Information. Penumbra Confidential Information shall only be disclosed to persons who are under\na duty of confidentiality to Recipient at least as stringent as the duties set forth herein. Recipient shall advise its employees who may have access to the\nPenumbra Confidential Information of its confidential nature and the obligations set forth in this Agreement. In the event of an inadvertent disclosure of the\nPenumbra Confidential Information, Recipient shall immediately notify Penumbra and shall take all measures practicable to limit and/or prevent further\ndisclosure.\n5. Required Disclosure. Notwithstanding any provision herein to the contrary, in the event that Recipient is required by judicial, administrative or\ngovernmental order to disclose the Penumbra Confidential Information or any portion thereof, Recipient may disclose the Penumbra Confidential Information\nwithout liability hereunder provided, however, that Recipient shall first notify Penumbra of such requirement in advance of such planned disclosure so that\nPenumbra has an opportunity to take any available lawful actions to prevent or minimize the extent of disclosure of the Penumbra Confidential Information,\nincluding but not limited to seeking a protective order.\n6. Ownership; No License. The Penumbra Confidential Information, including any modification or enhancement thereto or any information based\non or derived therefrom, is and shall remain the property of Penumbra. Nothing in this Agreement shall be construed as creating an express or implied license or\nright to the Penumbra Confidential Information or to any patent, trademark, copyright or other intellectual property of Penumbra.\n7. No Warranty. Except as may otherwise be agreed to in writing by the parties, no warranties or representations of any kind, whether express or\nimplied, including but not limited to accuracy or completeness, are given by Penumbra with respect to the Penumbra Confidential Information or use thereof.\nThe Penumbra Confidential Information is provided on an "AS IS" basis. Penumbra shall not be liable for any damages arising out of the use of the Penumbra\nConfidential Information by Recipient.\n8.\nTerm. The term of this Agreement shall be two (2) years from the Effective Date, unless terminated earlier in writing by either party; provided,\nhowever, in the event the parties enter or have entered, into a business relationship or other arrangement, the term of this Agreement shall be for two (2) years\nfrom the date of termination or expiration of such business relationship or other arrangement. Notwithstanding the termination or expiration of this Agreement,\nSections 1, 2, 3, 4, 5, 6, 10 and 13 remain in effect indefinitely or until one of the exceptions set forth in Section 3 applies.\n9. Return of Penumbra Confidential Information. Upon termination or expiration of this Agreement or written request of Penumbra, Recipient\nshal return or destroy, at the option of Penumbra, all Penumbra Confidential Information, including without limitation any written or electronic copies,\nsummaries and other documents containing the Penumbra Confidential Information; provided, however, that Recipient may retain one (1) copy of such\nPenumbra Confidential Information solely for archival purposes to ensure compliance with this Agreement. Notwithstanding the foregoing, Recipient may retain\nConfidential Information to the extent required by law and such Penumbra Confidential Information shall be held on a confidential basis. In addition, Recipient\nmay retain electronic files containing the Penumbra Confidential Information created pursuant to automatic archiving and backup procedures or maintain\npursuant to internal or regulatory document retention policies so long as such electronic files are kept confidential in accordance with the terms of this\nAgreement.\n10. Remedies. Recipient hereby acknowledges and agrees that any violation or threat of violation of this Agreement will result in irrevocable harm to\nPenumbra for which damages would be an inadequate remedy and that Penumbra shall be entitled to seek injunctive or other equitable relief. The foregoing\nremedy of equitable relief shall not be the sole or exclusive remedy available to Penumbra.\n-109-\n11. Assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, successors, and assignees.\nExcept for an assignment to a successor-in-interest that acquires a party by merger or acquisition, this Agreement shall not be assigned by either party without\nthe prior written consent of the other party.\n12. Notices. Any notices required hereunder shall be in writing and sent to a party at its address set forth above, or to such other address as may\nsubsequently be designated in writing. Such notice must be delivered in person, sent by first class mail or overnight courier, or transmitted by facsimile or\nthrough email.\n13. Governing Law. This Agreement shall be governed, construed and enforced in accordance with the laws of the State of California, without\napplication of conflicts of law, and both parties consent to the jurisdiction of the federal and state courts located within the State of California.\n14.\nEntire Agreement. This Agreement sets forth the entire understanding between the parties as to the subject matter herein, and supersedes all\nprevious or contemporaneous understandings, commitments or agreements, whether written or oral, regarding confidentiality. If the parties mutually agree to\nenter\ninto or continue a business relationship or other arrangement and do not enter into a new confidentiality agreement, the terms and conditions set forth\nherein shall apply to such business relationship or other arrangement, unless otherwise set forth in writing by the parties. Any amendment or modification to this\nAgreement must be in writing and signed by authorized representatives of both parties. Nothing in this Agreement shall be construed to create an obligation of\nthe parties to negotiate or enter into any subsequent agreement.\n15.\nWaiver; Severability. Failure of a party to insist upon the performance of the other party of any provision of this Agreement shall not be treated\nas a modification of this Agreement, nor shall such failure or election be treated as a waiver of the right of such party at any later time to insist upon strict\nperformance of such provision. If any provision of this Agreement is declared void or unenforceable, such provision shall be severed from this Agreement,\nwhich shall otherwise remain in full force and effect.\n16. Counterparts. This Agreement may be signed in any number of counterparts with the same effect as if the signature on each counterpart were\non\nthe same instrument. All signatures may be transmitted by facsimile or a PDF attachment to an email, and such facsimile or attachment will, for all purposes, be\ndeemed to be an original signature.\n-110-\nIN WITNESS WHEREOF, the Parties hereto have executed this Agreement by their duly authorized representatives as of the Effective Date set forth\nabove.\nPenumbra, Inc.\nRecipient: Xxxxxx\nSignature:\nSignature:\nPrinted Name: Robert D. Evans\nPrinted Name:\nTitle: Executive Vice President and General Counsel\nTitle:\nDate: September\n> 2015\nDate:\n-111- EXHIBIT N\nFORM OF NON-DISCLOSURE AGREEMENT\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (this "Agreement") is entered into as of ____________________ (the "Effective Date"), and is by and\nbetween Penumbra, Inc., a Delaware corporation, having an address at One Penumbra Place, Alameda, CA 94502 ("Penumbra"), and _________________, a\n____________\ncorporation, having an address at ________________________ ("Recipient"). Affiliates of a party are included in the definition of a party.\nWHEREAS, Penumbra desires to disclose, and Recipient desires to receive, Penumbra Confidential Information (as defined below); and\nWHEREAS, Recipient acknowledges that the Penumbra Confidential Information has been acquired at great expense and investment and is a valuable\nbusiness asset of Penumbra; and\nWHEREAS, Recipient recognizes that the unauthorized disclosure of Penumbra Confidential Information will cause substantial injury to Penumbra;\nNOW, THEREFORE, in consideration of the mutual promises and other good and valuable consideration, the receipt and adequacy of which are\nhereby acknowledged, the parties agree as follows:\n1. Confidentiality Obligation. Recipient shall:\n(a)\nreceive, hold and maintain the Penumbra Confidential Information in strict confidence;\n(b)\ntake the same degree of care that it uses to protect its own confidential and/or proprietary information and materials of similar nature\nand importance (but in no event less than reasonable care) to protect confidentiality and to avoid unauthorized use, disclosure,\npublication or dissemination of the Penumbra Confidential Information;\n(c)\nuse the Penumbra Confidential Information solely for the purposes of evaluating whether to enter into a subsequent business\nrelationship or performing its obligations under an existing or future business relationship, and shall not use or exploit the Penumbra\nConfidential Information for its own benefit or the benefit of a third party; and\n(d)\nnot disclose, distribute, reproduce, reverse engineer, transfer or transmit, directly or indirectly, the Penumbra Confidential\nInformation without the prior written consent of Penumbra.\n2. Penumbra Confidential Information. Penumbra Confidential Information means, without limitation, any information disclosed by Penumbra to\nRecipient or obtained by Recipient through inspection or observation of Penumbra's property or facilities. Such information may be provided in writing or\nelectronically, orally or visually, and will be marked as "confidential" or "proprietary" or, if disclosed orally or visually, will be identified as confidential and/or\nproprietary at the time of such disclosure. Additionally, where the confidential and/or proprietary nature of the information disclosed is, or reasonably should be,\napparent based on the type of information and/or the context in which it is disclosed, such information will be considered Penumbra Confidential Information.\nPenumbra Confidential Information includes but is not limited to drawings, designs, notes, reports, presentations, data, and know-how that relates to Penumbra's\nbusiness, including but not limited to, pricing strategy and financial data, plans, models and forecasts; products and/or services; research and development\nprojects and activities; clinical trials; manufacturing techniques, processes and operations; policies; vendors; customers; sales; marketing; software and\nhardware; technology; and the like. Additionally, Penumbra Confidential Information includes any reports or documents created by Recipient that include,\nsummarize, refer to or use the Penumbra Confidential Information.\n3. Exclusions. Penumbra Confidential Information shall not include information that:\n-108-\n(a)\nwas in the lawful possession of Recipient prior to disclosure by Penumbra, as demonstrated by competent evidence;\n(b)\nis, at the time of disclosure, already available in the public domain or becomes publicly available through no act or omission of\nRecipient in breach of this Agreement;\n(c)\nis disclosed to Recipient by a third party not under an obligation of confidentiality to Penumbra; or\n(d)\nis or has been independently developed by Recipient without breach of this Agreement, as demonstrated by competent evidence.\nRecipient shall bear the burden of establishing any of the foregoing exclusions.\n4. Permitted Access to Penumbra Confidential Information. Penumbra Confidential Information shall only be disclosed to persons who are under\na duty of confidentiality to Recipient at least as stringent as the duties set forth herein. Recipient shall advise its employees who may have access to the\nPenumbra Confidential Information of its confidential nature and the obligations set forth in this Agreement. In the event of an inadvertent disclosure of the\nPenumbra Confidential Information, Recipient shall immediately notify Penumbra and shall take all measures practicable to limit and/or prevent further\ndisclosure.\n5. Required Disclosure. Notwithstanding any provision herein to the contrary, in the event that Recipient is required by judicial, administrative or\ngovernmental order to disclose the Penumbra Confidential Information or any portion thereof, Recipient may disclose the Penumbra Confidential Information\nwithout liability hereunder; provided, however, that Recipient shall first notify Penumbra of such requirement in advance of such planned disclosure so that\nPenumbra has an opportunity to take any available lawful actions to prevent or minimize the extent of disclosure of the Penumbra Confidential Information,\nincluding but not limited to seeking a protective order.\n6. Ownership; No License. The Penumbra Confidential Information, including any modification or enhancement thereto or any information based\non or derived therefrom, is and shall remain the property of Penumbra. Nothing in this Agreement shall be construed as creating an express or implied license or\nright to the Penumbra Confidential Information or to any patent, trademark, copyright or other intellectual property of Penumbra.\n7. No Warranty. Except as may otherwise be agreed to in writing by the parties, no warranties or representations of any kind, whether express or\nimplied, including but not limited to accuracy or completeness, are given by Penumbra with respect to the Penumbra Confidential Information or use thereof.\nThe Penumbra Confidential Information is provided on an "AS IS" basis. Penumbra shall not be liable for any damages arising out of the use of the Penumbra\nConfidential Information by Recipient.\n8. Term. The term of this Agreement shall be two (2) years from the Effective Date, unless terminated earlier in writing by either party; provided,\nhowever, in the event the parties enter or have entered, into a business relationship or other arrangement, the term of this Agreement shall be for two (2) years\nfrom the date of termination or expiration of such business relationship or other arrangement. Notwithstanding the termination or expiration of this Agreement,\nSections 1, 2, 3, 4, 5, 6, 10 and 13 remain in effect indefinitely or until one of the exceptions set forth in Section 3 applies.\n9. Return of Penumbra Confidential Information. Upon termination or expiration of this Agreement or written request of Penumbra, Recipient\nshall return or destroy, at the option of Penumbra, all Penumbra Confidential Information, including without limitation any written or electronic copies,\nsummaries and other documents containing the Penumbra Confidential Information; provided, however, that Recipient may retain one (1) copy of such\nPenumbra Confidential Information solely for archival purposes to ensure compliance with this Agreement. Notwithstanding the foregoing, Recipient may retain\nConfidential Information to the extent required by law and such Penumbra Confidential Information shall be held on a confidential basis. In addition, Recipient\nmay retain electronic files containing the Penumbra Confidential Information created pursuant to automatic archiving and backup procedures or maintain\npursuant to internal or regulatory document retention policies so long as such electronic files are kept confidential in accordance with the terms of this\nAgreement.\n10. Remedies. Recipient hereby acknowledges and agrees that any violation or threat of violation of this Agreement will result in irrevocable harm to\nPenumbra for which damages would be an inadequate remedy and that Penumbra shall be entitled to seek injunctive or other equitable relief. The foregoing\nremedy of equitable relief shall not be the sole or exclusive remedy available to Penumbra.\n-109-\n11. Assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, successors, and assignees.\nExcept for an assignment to a successor-in-interest that acquires a party by merger or acquisition, this Agreement shall not be assigned by either party without\nthe prior written consent of the other party.\n12. Notices. Any notices required hereunder shall be in writing and sent to a party at its address set forth above, or to such other address as may\nsubsequently be designated in writing. Such notice must be delivered in person, sent by first class mail or overnight courier, or transmitted by facsimile or\nthrough email.\n13. Governing Law. This Agreement shall be governed, construed and enforced in accordance with the laws of the State of California, without\napplication of conflicts of law, and both parties consent to the jurisdiction of the federal and state courts located within the State of California.\n14. Entire Agreement. This Agreement sets forth the entire understanding between the parties as to the subject matter herein, and supersedes all\nprevious or contemporaneous understandings, commitments or agreements, whether written or oral, regarding confidentiality. If the parties mutually agree to\nenter into or continue a business relationship or other arrangement and do not enter into a new confidentiality agreement, the terms and conditions set forth\nherein shall apply to such business relationship or other arrangement, unless otherwise set forth in writing by the parties. Any amendment or modification to this\nAgreement must be in writing and signed by authorized representatives of both parties. Nothing in this Agreement shall be construed to create an obligation of\nthe parties to negotiate or enter into any subsequent agreement.\n15. Waiver; Severability. Failure of a party to insist upon the performance of the other party of any provision of this Agreement shall not be treated\nas a modification of this Agreement, nor shall such failure or election be treated as a waiver of the right of such party at any later time to insist upon strict\nperformance of such provision. If any provision of this Agreement is declared void or unenforceable, such provision shall be severed from this Agreement,\nwhich shall otherwise remain in full force and effect.\n16. Counterparts. This Agreement may be signed in any number of counterparts with the same effect as if the signature on each counterpart were on\nthe same instrument. All signatures may be transmitted by facsimile or a PDF attachment to an email, and such facsimile or attachment will, for all purposes, be\ndeemed to be an original signature.\n-110-\nIN WITNESS WHEREOF, the Parties hereto have executed this Agreement by their duly authorized representatives as of the Effective Date set forth\nabove.\nPenumbra, Inc.\nSignature:\nPrinted Name: Robert D. Evans\nTitle: Executive Vice President and General Counsel\nDate: September _____, 2015\nRecipient: Xxxxxx\nSignature:\nPrinted Name:\nTitle:\nDate:\n-111 - 435d6eaa82632030cfc84bbd93e96bf8.pdf effective_date jurisdiction party term EX-99.(D)(2) 9 d931329dex99d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Agreement (“Agreement”), effective when executed by both parties, is made between AOL Inc., a Delaware corporation, with offices at 770\nBroadway, New York NY 10003 (“Company”), and Verizon Corporate Services Group Inc., a New York corporation, having an office and\nprincipal place of business at One Verizon Way, Basking Ridge, New Jersey 07920, on behalf of itself and for the benefit of its Affiliates,\nhereinafter defined (individually or collectively “Verizon”), to protect Confidential Information (hereafter defined) to be disclosed by the parties\nto each other with respect to a matter of mutual interest (Verizon and Company shall be referred to hereinafter collectively as the ‘Parties” or\neach individually as a “Party”). In particular, the matter of mutual interest will be discussions to explore potential opportunities for the Parties to\nwork together in the digital (online and mobile) media and entertainment and advertising spaces (referred to hereinafter as “the matter of mutual\ninterest”).\nMutual Nondisclosure Agreement\nVerizon Proprietary and Confidential\n1. To facilitate discussions, meetings and the conduct of business\nbetween the parties with respect to the matter of mutual interest\ndescribed above, it may be necessary for one Party to disclose\nconfidential information to the other. All proprietary information of\nany type or character that is either disclosed to the other Party or with\nwhich the other Party comes into contact, and that is identified as\nproprietary at the time of disclosure or that is of a nature that would\nreasonably be understood to be proprietary shall be considered as the\nconfidential information of the disclosing Party including without\nlimitation technical, customer, personnel and/or business information\nin written, graphic, oral or other tangible or intangible form\n(“Confidential Information”). Such Confidential Information may\ninclude proprietary material as well as material subject to and\nprotected by laws regarding secrecy of communications or trade\nsecrets.\n2. Unless terminated earlier by written notice, the term of this\nAgreement shall be for three (3) years The obligations with respect to\nConfidential Information shall extend for a period of three (3) years\nfollowing the date of termination or expiration of this agreement,\nexcept, however, that any customer information shall remain\nconfidential forever\n3. Each Party acknowledges and agrees as follows:\na. All Confidential Information acquired by either Party from\nthe other shall be and shall remain the exclusive property of the\nsource;\nb. To receive in confidence any Confidential Information; to use\nsuch Confidential Information only for purposes of work, services or\nanalysis related to the matter of mutual interest described above and\nfor other purposes only upon such terms as may be agreed upon\nbetween the parties in writing;\ne. To limit access to authorized employees who have a need to\nknow the Confidential Information in order for that Party to participate\nin the matter of mutual interest described above. Each Party shall limit\naccess to such Confidential Information to a Party’s contractors, and\nagents who (i) have a need to know the Confidential Information in\norder for such Party to participate in the matter of mutual interest\ndescribed above, and (ii) have also entered into a written agreement\nwith the receiving Party which provides the same or greater protections\nto any Confidential Information provided hereunder; and\nf. At the disclosing Party’s request, to return promptly to the\ndisclosing Party or to destroy any copies of such Confidential\nInformation that is in written, graphic or other tangible form, and\nprovide to the disclosing Party a list of all such material destroyed.\n4. These obligations do not apply to Confidential Information which,\nas shown by reasonably documented proof.\na. Was in the other’s possession prior to receipt from the\ndisclosing Party; or\nb. Was received by one Party in good faith from a third party not\nsubject to a confidential obligation to the other Party; or\nc. Now is or later becomes publicly known through no breach of\nconfidential obligation by the receiving Party; or\nd. Is disclosed to a third party by the source without a similar\nnondisclosure restriction; or\nMutual Nondisclosure Agreement\nVerizon Proprietary and Confidential\ne. Was developed by the receiving Party without the developing\nperson(s) having access to any of the Confidential Information\nreceived from the other Party; or\nf. Is authorized in writing by the disclosing Party to be released\nor is designated in writing by that Party as no longer being\nconfidential or proprietary.\n5. Each Party may disclose Confidential Information to an Affiliate,\nsubject to the terms and conditions set forth herein. For purposes of\nthis Agreement, an Affiliate shall be defined as an entity that\ncontrols, is controlled by, or is under common control with that Party.\nEach Party agrees to be responsible for any breach of this Agreement\nby each of its respective Affiliates.\n6. Other than as required by law or as set forth in Section 3(c),\nneither Party shall. without the other Party’s prior written consent,\ndisclose to any person, or make a public announcement of, the\nexistence of discussions or negotiations or any of the terms relating to\nthe matter of mutual interest described above or any Confidential\nInformation.\n7. If a Party (“Ordered Party’) receives a request to disclose any\nConfidential Information of the other Party, whether pursuant to a\nvalid subpoena or an order issued by a court or regulatory body\n(“Ordering Party), and on advice of legal counsel that disclosure is\nrequired by law, then prior to disclosure, the Ordered Party shall, to\nthe extent permitted by law, (i) notify the other Party of the terms of\nsuch request and advice, (ii) cooperate with the other Party in taking\nlawful steps to resist, narrow, or eliminate the need for such\ndisclosure, and (iii) if disclosure is nonetheless required, work with\nthe other Party to take into account the other Party’s reasonable\nrequirements as to its timing, content and manner of making or\ndelivery and use best efforts to obtain a protective order or other\nbinding assurance from the Ordering Party that confidential treatment\nshall be afforded to such portion of the Confidential Information as is\nrequired to be disclosed. The foregoing is without limitation of the\nother Party’s ability to seek a protective order or other relief limiting\nsuch disclosure; in such a case, the Ordered Party shall cooperate in\nsuch efforts by the other Party.\n8. It is agreed that a violation of any of the provisions of this\nAgreement may cause irreparable harm and injury to the non-violating\nParty and that Party shall be entitled, in addition to any other rights and\nremedies it may have at law or in equity, to seek an injunction\nenjoining and restraining the violating Party from doing or continuing\nto do any such act and any other violations or threatened violations of\nthis Agreement. Absent a showing of willful violation of this\nAgreement, neither Party shall be liable to the other, whether in\ncontract or in tort or otherwise, for special, indirect incidental or\nconsequential damages including lost income or profits of any kind,\neven if such Party has been advised of the possibility thereof.\n9. Neither disclosure of Confidential Information nor this Agreement\nshall be construed as a license to make, use or sell the Confidential\nInformation or derived products. Neither this Agreement nor provision\nof Confidential Information pursuant to it shall be construed as an\nagreement, commitment, promise or representation by either Party to\ndo business with the other or to do anything except as set out\nspecifically in this Agreement.\n10. The construction, interpretation and performance of this\nAgreement shall be governed by and construed in accordance with the\nlaws of the State of New York without regard to any conflicts of law\nprinciples and subject to the exclusive jurisdiction of its federal or state\ncourts in New York.\n11. No customer information of either Party shall be stored, transmitted\nor accessed, at, in or through a site located outside of the United States\nwithout the advance written consent of the other Party, Moreover,\nCompany agrees that, in event it comes into possession of any Verizon\nWireless customer data no such data shall be stored, transmitted or\naccessed, at, in or through, a site located outside of the United States\nwithout the advance written consent of Verizon Wireless. For purposes\nof this provision, the term “Verizon Wireless customer data shall mean:\n(a) any subscriber information, including, without limitation, name\naddress, phone number or other personal information of any Verizon\nWireless subscriber, (b) any call-associated data, including, without\nlimitation, the telephone number, internet address or similar identifying\ndesignator associated\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives.\nVerizon Corporate Services Group Inc.\nAOL Inc.\nBy: /s/ Christine Pantoya\nBy: /s/ John b. Frelinghuysen\nName: Christine C. Pantoya\nName: John b. Frelinghuysen\nTitle: Vice President, Corporate Strategy and Development\nTitle: SVP, Head of Strategy\nDate: 11/25/2014\nDate: 11/25/2014\nMutual Nondisclosure Agreement\nVerizon Proprietary and Confidential\nwith a communication; (c) any billing records; (d) the time, date, size\nduration of a communication or the physical location of equipment\nused in connection with a communication; or (e) the content of any\nVerizon Wireless customer communication.\n12. Each Party agrees to comply with all applicable laws, regulations,\ntreaties and orders in connection with its activities under this\nAgreement, including the laws regarding economic and trade\nsanctions and bribery of foreign officials. Each Party acknowledges\nthat the proprietary data, know-how, software or other materials or\ninformation obtained from the other Party under this Agreement may\nbe commodities and/or technical data subject to the Export\nAdministration Regulations (the “EAR”) of the U.S . Department of\nCommerce as well as trade and economic sanctions subject to the\nTrading With the Enemy Act (TWEA) and the International\nEmergency Economic Powers Act (IEEPA) of the Office of Foreign\nAsset Control within the Department of Commerce, and that any\nexport or re-export thereof must be in compliance with the EAR,\nTWEA and IEEPA. Each Party agrees that it shall not export or re-\nexport, directly or indirectly, either during the term of this Agreement\nor after its expiration, any commodities and/or technical data (or\ndirect products thereof) provided under this Agreement in any form\nto destinations in or nationals of Country Groups D:1 or E, as\nspecified in Supplement No. 1 to Part 740 of the EAR, and as\nmodified from time to time by the U.S. Department of Commerce, or\nto destinations that are otherwise controlled or embargoed under U.S.\nlaw.\n13. If any provision of this Agreement shall be invalid or\nunenforceable, then such invalidity or unenforceability shall not\ninvalidate or render unenforceable the entire Agreement. The entire\nAgreement shall be construed as if not containing the particular invalid\nor unenforceable provision or provisions, and the rights and\nobligations of the parties shall be construed and enforced accordingly.\n14. This Agreement may be executed originally or by facsimile, and in\ncounterparts, each of which shall be deemed an original and such\ncounterparts together shall constitute one and the same instrument.\nWhen so executed and delivered by each Party to the other, this\nAgreement shall become binding.\n15. This Agreement is the entire agreement between the parties with\nrespect to nondisclosure of Confidential Information pertaining to the\nmatter of mutual interest stated above and supersedes all prior\nagreements and understandings with respect to this subject. This\nAgreement may be amended only by written agreement executed by\nboth parties. This Agreement shall not be assigned or transferred by\neither Party without the prior written consent of the other. EX-99.(D)(2) 9 d931329dex99d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Agreement (“Agreement”), effective when executed by both parties, is made between AOL Inc., a Delaware corporation, with offices at 770\nBroadway, New York NY 10003 (“Company”), and Verizon Corporate Services Group Inc., a New York corporation, having an office and\nprincipal place of business at One Verizon Way, Basking Ridge, New Jersey 07920, on behalf of itself and for the benefit of its Affiliates,\nhereinafter defined (individually or collectively “Verizon”), to protect Confidential Information (hereafter defined) to be disclosed by the parties\nto each other with respect to a matter of mutual interest (Verizon and Company shall be referred to hereinafter collectively as the ‘Parties” or\neach individually as a “Party”). In particular, the matter of mutual interest will be discussions to explore potential opportunities for the Parties to\nwork together in the digital (online and mobile) media and entertainment and advertising spaces (referred to hereinafter as “the matter of mutual\n \n \ninterest”).\n1. To facilitate discussions, meetings and the conduct of business\nbetween the parties with respect to the matter of mutual interest\ndescribed above, it may be necessary for one Party to disclose\nconfidential information to the other. All proprietary information of\nany type or character that is either disclosed to the other Party or with\nwhich the other Party comes into contact, and that is identified as\nproprietary at the time of disclosure or that is of a nature that would\nreasonably be understood to be proprietary shall be considered as the\nconfidential information of the disclosing Party including without\nlimitation technical, customer, personnel and/or business information\nin written, graphic, oral or other tangible or intangible form\n(“Confidential Information”). Such Confidential Information may\ninclude proprietary material as well as material subject to and\nprotected by laws regarding secrecy of communications or trade\nsecrets.\n2. Unless terminated earlier by written notice, the term of this\nAgreement shall be for three (3) years The obligations with respect to\nConfidential Information shall extend for a period of three (3) years\nfollowing the date of termination or expiration of this agreement,\nexcept, however, that any customer information shall remain\nconfidential forever\n3. Each Party acknowledges and agrees as follows:\na. All Confidential Information acquired by either Party from\nthe other shall be and shall remain the exclusive property of the\nsource;\nb. To receive in confidence any Confidential Information; to use\nsuch Confidential Information only for purposes of work, services or\nanalysis related to the matter of mutual interest described above and\nfor other purposes only upon such terms as may be agreed upon\nbetween the parties in writing;\nMutual Nondisclosure Agreement\nVerizon Proprietary and Confidential\ne. To limit access to authorized employees who have a need to\nknow the Confidential Information in order for that Party to participate\nin the matter of mutual interest described above. Each Party shall limit\naccess to such Confidential Information to a Party’s contractors, and\nagents who (i) have a need to know the Confidential Information in\norder for such Party to participate in the matter of mutual interest\ndescribed above, and (ii) have also entered into a written agreement\nwith the receiving Party which provides the same or greater protections\nto any Confidential Information provided hereunder; and\nf. At the disclosing Party’s request, to return promptly to the\ndisclosing Party or to destroy any copies of such Confidential\nInformation that is in written, graphic or other tangible form, and\nprovide to the disclosing Party a list of all such material destroyed.\n4. These obligations do not apply to Confidential Information which,\nas shown by reasonably documented proof.\na. Was in the other’s possession prior to receipt from the\ndisclosing Party; or\nb. Was received by one Party in good faith from a third party not\nsubject to a confidential obligation to the other Party; or\nc. Now is or later becomes publicly known through no breach of\nconfidential obligation by the receiving Party; or\nd. Is disclosed to a third party by the source without a similar\nnondisclosure restriction; or\ne. Was developed by the receiving Party without the developing\nperson(s) having access to any of the Confidential Information\nreceived from the other Party; or\nf. Is authorized in writing by the disclosing Party to be released\nor is designated in writing by that Party as no longer being\nconfidential or proprietary.\n5. Each Party may disclose Confidential Information to an Affiliate,\nsubject to the terms and conditions set forth herein. For purposes of\nthis Agreement, an Affiliate shall be defined as an entity that\ncontrols, is controlled by, or is under common control with that Party.\nEach Party agrees to be responsible for any breach of this Agreement\nby each of its respective Affiliates.\n6. Other than as required by law or as set forth in Section 3(c),\nneither Party shall. without the other Party’s prior written consent,\ndisclose to any person, or make a public announcement of, the\nexistence of discussions or negotiations or any of the terms relating to\nthe matter of mutual interest described above or any Confidential\nInformation.\n7. If a Party (“Ordered Party’) receives a request to disclose any\nConfidential Information of the other Party, whether pursuant to a\nvalid subpoena or an order issued by a court or regulatory body\n(“Ordering Party), and on advice of legal counsel that disclosure is\nrequired by law, then prior to disclosure, the Ordered Party shall, to\nthe extent permitted by law, (i) notify the other Party of the terms of\nsuch request and advice, (ii) cooperate with the other Party in taking\nlawful steps to resist, narrow, or eliminate the need for such\ndisclosure, and (iii) if disclosure is nonetheless required, work with\nthe other Party to take into account the other Party’s reasonable\nrequirements as to its timing, content and manner of making or\ndelivery and use best efforts to obtain a protective order or other\nbinding assurance from the Ordering Party that confidential treatment\nshall be afforded to such portion of the Confidential Information as is\nrequired to be disclosed. The foregoing is without limitation of the\nother Party’s ability to seek a protective order or other relief limiting\nsuch disclosure; in such a case, the Ordered Party shall cooperate in\nsuch efforts by the other Party.\nMutual Nondisclosure Agreement\nVerizon Proprietary and Confidential\n8. It is agreed that a violation of any of the provisions of this\nAgreement may cause irreparable harm and injury to the non-violating\nParty and that Party shall be entitled, in addition to any other rights and\nremedies it may have at law or in equity, to seek an injunction\nenjoining and restraining the violating Party from doing or continuing\nto do any such act and any other violations or threatened violations of\nthis Agreement. Absent a showing of willful violation of this\nAgreement, neither Party shall be liable to the other, whether in\ncontract or in tort or otherwise, for special, indirect incidental or\nconsequential damages including lost income or profits of any kind,\neven if such Party has been advised of the possibility thereof.\n9. Neither disclosure of Confidential Information nor this Agreement\nshall be construed as a license to make, use or sell the Confidential\nInformation or derived products. Neither this Agreement nor provision\nof Confidential Information pursuant to it shall be construed as an\nagreement, commitment, promise or representation by either Party to\ndo business with the other or to do anything except as set out\nspecifically in this Agreement.\n10. The construction, interpretation and performance of this\nAgreement shall be governed by and construed in accordance with the\nlaws of the State of New York without regard to any conflicts of law\nprinciples and subject to the exclusive jurisdiction of its federal or state\ncourts in New York.\n11. No customer information of either Party shall be stored, transmitted\nor accessed, at, in or through a site located outside of the United States\nwithout the advance written consent of the other Party, Moreover,\nCompany agrees that, in event it comes into possession of any Verizon\nWireless customer data no such data shall be stored, transmitted or\naccessed, at, in or through, a site located outside of the United States\nwithout the advance written consent of Verizon Wireless. For purposes\nof this provision, the term “Verizon Wireless customer data shall mean:\n(a) any subscriber information, including, without limitation, name\naddress, phone number or other personal information of any Verizon\nWireless subscriber, (b) any call-associated data, including, without\nlimitation, the telephone number, internet address or similar identifying\ndesignator associated\nwith a communication; (c) any billing records; (d) the time, date, size\nduration of a communication or the physical location of equipment\nused in connection with a communication; or (e) the content of any\nVerizon Wireless customer communication.\n12. Each Party agrees to comply with all applicable laws, regulations,\ntreaties and orders in connection with its activities under this\nAgreement, including the laws regarding economic and trade\nsanctions and bribery of foreign officials. Each Party acknowledges\nthat the proprietary data, know-how, software or other materials or\ninformation obtained from the other Party under this Agreement may\nbe commodities and/or technical data subject to the Export\nAdministration Regulations (the “EAR”) of the U.S. Department of\nCommerce as well as trade and economic sanctions subject to the\nTrading With the Enemy Act (TWEA) and the International\nEmergency Economic Powers Act (IEEPA) of the Office of Foreign\nAsset Control within the Department of Commerce, and that any\nexport or re-export thereof must be in compliance with the EAR,\nTWEA and IEEPA. Each Party agrees that it shall not export or re-\nexport, directly or indirectly, either during the term of this Agreement\nor after its expiration, any commodities and/or technical data (or\ndirect products thereof) provided under this Agreement in any form\nto destinations in or nationals of Country Groups D:1 or E, as\nspecified in Supplement No. 1 to Part 740 of the EAR, and as\nmodified from time to time by the U.S. Department of Commerce, or\nto destinations that are otherwise controlled or embargoed under U.S.\nlaw.\n13. If any provision of this Agreement shall be invalid or\nunenforceable, then such invalidity or unenforceability shall not\ninvalidate or render unenforceable the entire Agreement. The entire\nAgreement shall be construed as if not containing the particular invalid\nor unenforceable provision or provisions, and the rights and\nobligations of the parties shall be construed and enforced accordingly.\n14. This Agreement may be executed originally or by facsimile, and in\ncounterparts, each of which shall be deemed an original and such\ncounterparts together shall constitute one and the same instrument.\nWhen so executed and delivered by each Party to the other, this\nAgreement shall become binding.\n15. This Agreement is the entire agreement between the parties with\nrespect to nondisclosure of Confidential Information pertaining to the\nmatter of mutual interest stated above and supersedes all prior\nagreements and understandings with respect to this subject. This\nAgreement may be amended only by written agreement executed by\nboth parties. This Agreement shall not be assigned or transferred by\neither Party without the prior written consent of the other.\nIN WITNESS WHEREQF, the parties have caused this Agreement to be executed by their duly authorized representatives. Verizon Corporate Services Group Inc.\nBy: /s/ Christine Pantoya\nName: Christine C. Pantoya\nTitle: Vice President, Corporate Strategy and Development\nDate: 11/25/2014\nMutual Nondisclosure Agreement\nVerizon Proprietary and Confidential\nAOL Inc.\nBy: /s/ John b. Frelinghuysen\nName: John b. Frelinghuysen\nTitle: SVP, Head of Strategy\nDate: 11/25/2014 EX-99.(D)(2) 9 d931329dex99d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Agreement ("Agreement"), effective when executed by both parties, is made between AOL Inc., a Delaware corporation, with offices\nat\n770\nBroadway, New York NY 10003 ("Company."), and Verizon Corporate Services Group Inc., a New York corporation, having an office and\nprincipal\nplace of business at One Verizon Way, Basking Ridge, New Jersey 07920, on behalf of itself and for the benefit of its Affiliates,\nhereinafter\ndefined (individually or collectively "Verizon"), to protect Confidential Information (hereafter defined) to be disclosed by the parties\nto each other with respect to a matter of mutual interest (Verizon and Company shall be referred to hereinafter collectively as the 'Parties" or\neach\nindividually as a "Party."). In particular, the matter of mutual interest will be discussions to explore potential opportunities for the Parties to\nwork together in the digital (online and mobile) media and entertainment and advertising spaces (referred to hereinafter as "the\nmatter\nof\nmutual\ninterest").\n1. To facilitate discussions, meetings and the conduct of business\ne. To limit access to authorized employees who have a need to\nbetween the parties with respect to the matter of mutual interest\nknow the Confidential Information in order for that Party to participate\ndescribed above, it may be necessary for one Party to disclose\nin the matter of mutual interest described above. Each Party shall limit\nconfidential information to the other. All proprietary information of\naccess to such Confidential Information to a Party's contractors, and\nany type or character that is either disclosed to the other Party or with\nagents who (i) have a need to know the Confidential Information in\nwhich the other Party comes into contact, and that is identified as\norder for such Party to participate in the matter of mutual interest\nproprietary at the time of disclosure or that is of a nature that would\ndescribed above, and (ii) have also entered into a written agreement\nreasonably be understood to be proprietary shal be considered as the\nwith the receiving Party which provides the same or greater protections\nconfidential information of the disclosing Party including without\nto any Confidential Information provided hereunder; and\nlimitation technical, customer, personnel and/or business information\nin written, graphic, oral or other tangible or intangible form\nf. At the disclosing Party's request, to return promptly to the\n("Confidential Information"). Such Confidential Information may\ndisclosing Party or to destroy any copies of such Confidential\ninclude proprietary material as well as material subject to and\nInformation that is in written, graphic or other tangible form, and\nprotected by laws regarding secrecy of communications or trade\nprovide to the disclosing Party a list of all such material destroyed.\nsecrets.\n4. These obligations do not apply to Confidential Information which,\n2. Unless terminated earlier by written notice, the term of this\nas shown by reasonably documented proof.\nAgreement shall be for three (3) years The obligations with respect to\nConfidential Information shall extend for a period of three (3) years\na. Was in the other's possession prior to receipt from the\nfollowing the date of termination or expiration of this agreement,\ndisclosing Party; or\nexcept, however, that any customer information shall remain\nconfidential forever\nb. Was received by one Party in good faith from a third party not\nsubject to a confidential obligation to the other Party; or\n3. Each Party acknowledges and agrees as follows:\na. All Confidential Information acquired by either Party from\nC. Now is or later becomes publicly known through no breach of\nthe other shall be and shall remain the exclusive property of the\nconfidential obligation by the receiving Party; or\nsource;\nd. Is disclosed to a third party by the source without a similar\nb. To receive in confidence any Confidential Information; to use\nnondisclosure restriction; or\nsuch Confidential Information only for purposes of work, services or\nanalysis related to the matter of mutual interest described above and\nfor other purposes only upon such terms as may be agreed upon\nbetween the parties in writing;\nMutual Nondisclosure Agreement\nVerizon Proprietary and Confidential\ne. Was developed by the receiving Party without the developing\n8. It is agreed that a violation of any of the provisions of this\nperson(s) having access to any of the Confidential Information\nAgreement may cause irreparable harm and injury to the non-violating\nreceived from the other Party; or\nParty and that Party shall be entitled, in addition to any other rights and\nremedies it may have at law or in equity, to seek an injunction\nf. Is authorized in writing by the disclosing Party to be released\nenjoining and restraining the violating Party from doing or continuing\nor is designated in writing by that Party as no longer being\nto do any such act and any other violations or threatened violations of\nconfidential or proprietary.\nthis Agreement. Absent a showing of willful violation of this\nAgreement, neither Party shall be liable to the other, whether in\n5. Each Party may disclose Confidential Information to an Affiliate,\ncontract or in tort or otherwise, for special, indirect incidental or\nsubject to the terms and conditions set forth herein. For purposes of\nconsequential damages including lost income or profits of any kind,\nthis Agreement, an Affiliate shall be defined as an entity that\neven if such Party has been advised of the possibility thereof.\ncontrols, is controlled by, or is under common control with that Party.\nEach Party agrees to be responsible for any breach of this Agreement\n9. Neither disclosure of Confidential Information nor this Agreement\nby each of its respective Affiliates.\nshall be construed as a license to make, use or sell the Confidential\nInformation or derived products. Neither this Agreement nor provision\n6. Other than as required by law or as set forth in Section 3(c),\nof Confidential Information pursuant to it shall be construed as an\nneither Party shall. without the other Party's prior written consent,\nagreement, commitment, promise or representation by either Party to\ndisclose to any person, or make a public announcement of, the\ndo business with the other or to do anything except as set out\nexistence of discussions or negotiations or any of the terms relating to\nspecifically in this Agreement.\nthe matter of mutual interest described above or any Confidential\nInformation.\n10. The construction, interpretation and performance of this\nAgreement shall be governed by and construed in accordance with the\n7. If a Party ("Ordered Party') receives a request to disclose any\nlaws of the State of New York without regard to any conflicts of law\nConfidential Information of the other Party, whether pursuant to a\nprinciples and subject to the exclusive jurisdiction of its federal or state\nvalid subpoena or an order issued by a court or regulatory body\ncourts in New York.\n("Ordering Party), and on advice of legal counsel that disclosure is\nrequired by law, then prior to disclosure, the Ordered Party shall, to\n11. No customer information of either Party shall be stored, transmitted\nthe extent permitted by law, (i) notify the other Party of the terms of\nor accessed, at, in or through a site located outside of the United States\nsuch request and advice, (ii) cooperate with the other Party in taking\nwithout the advance written consent of the other Party, Moreover,\nlawful steps to resist, narrow, or eliminate the need for such\nCompany agrees that, in event it comes into possession of any Verizon\ndisclosure, and (iii) if disclosure is nonetheless required, work with\nWireless customer data no such data shall be stored, transmitted or\nthe other Party to take into account the other Party's reasonable\naccessed, at, in or through, a site located outside of the United States\nrequirements as to its timing, content and manner of making or\nwithout the advance written consent of Verizon Wireless. For purposes\ndelivery and use best efforts to obtain a protective order or other\nof this provision, the term "Verizon Wireless customer data shall mean:\nbinding assurance from the Ordering Party that confidential treatment\n(a) any subscriber information, including, without limitation, name\nshall be afforded to such portion of the Confidential Information as is\naddress, phone number or other personal information of any Verizon\nrequired to be disclosed. The foregoing is without limitation of the\nWireless subscriber, (b) any call-associated data, including, without\nother Party's ability to seek a protective order or other relief limiting\nlimitation, the telephone number, internet address or similar identifying\nsuch disclosure; in such a case, the Ordered Party shall cooperate in\ndesignator associated\nsuch efforts by the other Party.\nMutual Nondisclosure Agreement\nVerizon Proprietary and Confidential\nwith a communication; (c) any billing records; (d) the time, date, size\nmodified from time to time by the U.S. Department of Commerce, or\nduration of a communication or the physical location of equipment\nto destinations that are otherwise controlled or embargoed under U.S.\nused in connection with a communication; or (e) the content of any\nlaw.\nVerizon Wireless customer communication.\n13. If any provision of this Agreement shall be invalid or\n12. Each Party agrees to comply with all applicable laws, regulations,\nunenforceable, then such invalidity or unenforceability shall not\ntreaties and orders in connection with its activities under this\ninvalidate or render unenforceable the entire Agreement. The entire\nAgreement, including the laws regarding economic and trade\nAgreement shall be construed as if not containing the particular invalid\nsanctions and bribery of foreign officials. Each Party acknowledges\nor unenforceable provision or provisions, and the rights and\nthat the proprietary data, know-how, software or other materials or\nobligations of the parties shall be construed and enforced accordingly.\ninformation obtained from the other Party under this Agreement may\nbe commodities and/or technical data subject to the Export\n14. This Agreement may be executed originally or by facsimile, and in\nAdministration Regulations (the "EAR") of the U.S. Department of\ncounterparts, each of which shall be deemed an original and such\nCommerce as well as trade and economic sanctions subject to the\ncounterparts together shall constitute one and the same instrument.\nTrading With the Enemy Act (TWEA) and the International\nWhen so executed and delivered by each Party to the other, this\nEmergency Economic Powers Act (IEEPA) of the Office of Foreign\nAgreement shall become binding.\nAsset Control within the Department of Commerce, and that any\nexport or re-export thereof must be in compliance with the EAR,\n15. This Agreement is the entire agreement between the parties with\nTWEA and IEEPA. Each Party agrees that it shall not export or re-\nrespect to nondisclosure of Confidential Information pertaining to the\nexport, directly or indirectly, either during the term of this Agreement\nmatter of mutual interest stated above and supersedes all prior\nor after its expiration, any commodities and/or technical data (or\nagreements and understandings with respect to this subject. This\ndirect products thereof) provided under this Agreement in any form\nAgreement may be amended only by written agreement executed by\nto destinations in or nationals of Country Groups D:1 or E, as\nboth parties. This Agreement shall not be assigned or transferred by\nspecified in Supplement No. 1 to Part 740 of the EAR, and as\neither Party without the prior written consent of the other.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives.\nVerizon Corporate Services Group Inc.\nAOL Inc.\nBy: /s/ Christine Pantoya\nBy: /s/ John b. Frelinghuysen\nName: Christine C. Pantoya\nName: John b. Frelinghuysen\nTitle: Vice President, Corporate Strategy and Development\nTitle: SVP, Head of Strategy\nDate: 11/25/2014\nDate: 11/25/2014\nMutual Nondisclosure Agreement\nVerizon Proprietary and Confidential EX-99.(D)(2) 9 d931329dex99d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Agreement (“Agreement”), effective when executed by both parties, is made between AOL Inc., a Delaware corporation, with offices at 770\nBroadway, New York NY 10003 (“Company”), and Verizon Corporate Services Group Inc., a New York corporation, having an office and\nprincipal place of business at One Verizon Way, Basking Ridge, New Jersey 07920, on behalf of itself and for the benefit of its Affiliates,\nhereinafter defined (individually or collectively “Verizon”), to protect Confidential Information (hereafter defined) to be disclosed by the parties\nto each other with respect to a matter of mutual interest (Verizon and Company shall be referred to hereinafter collectively as the ‘Parties” or\neach individually as a “Party”). In particular, the matter of mutual interest will be discussions to explore potential opportunities for the Parties to\nwork together in the digital (online and mobile) media and entertainment and advertising spaces (referred to hereinafter as “the matter of mutual\ninterest”).\nMutual Nondisclosure Agreement\nVerizon Proprietary and Confidential\n1. To facilitate discussions, meetings and the conduct of business\nbetween the parties with respect to the matter of mutual interest\ndescribed above, it may be necessary for one Party to disclose\nconfidential information to the other. All proprietary information of\nany type or character that is either disclosed to the other Party or with\nwhich the other Party comes into contact, and that is identified as\nproprietary at the time of disclosure or that is of a nature that would\nreasonably be understood to be proprietary shall be considered as the\nconfidential information of the disclosing Party including without\nlimitation technical, customer, personnel and/or business information\nin written, graphic, oral or other tangible or intangible form\n(“Confidential Information”). Such Confidential Information may\ninclude proprietary material as well as material subject to and\nprotected by laws regarding secrecy of communications or trade\nsecrets.\n2. Unless terminated earlier by written notice, the term of this\nAgreement shall be for three (3) years The obligations with respect to\nConfidential Information shall extend for a period of three (3) years\nfollowing the date of termination or expiration of this agreement,\nexcept, however, that any customer information shall remain\nconfidential forever\n3. Each Party acknowledges and agrees as follows:\na. All Confidential Information acquired by either Party from\nthe other shall be and shall remain the exclusive property of the\nsource;\nb. To receive in confidence any Confidential Information; to use\nsuch Confidential Information only for purposes of work, services or\nanalysis related to the matter of mutual interest described above and\nfor other purposes only upon such terms as may be agreed upon\nbetween the parties in writing;\ne. To limit access to authorized employees who have a need to\nknow the Confidential Information in order for that Party to participate\nin the matter of mutual interest described above. Each Party shall limit\naccess to such Confidential Information to a Party’s contractors, and\nagents who (i) have a need to know the Confidential Information in\norder for such Party to participate in the matter of mutual interest\ndescribed above, and (ii) have also entered into a written agreement\nwith the receiving Party which provides the same or greater protections\nto any Confidential Information provided hereunder; and\nf. At the disclosing Party’s request, to return promptly to the\ndisclosing Party or to destroy any copies of such Confidential\nInformation that is in written, graphic or other tangible form, and\nprovide to the disclosing Party a list of all such material destroyed.\n4. These obligations do not apply to Confidential Information which,\nas shown by reasonably documented proof.\na. Was in the other’s possession prior to receipt from the\ndisclosing Party; or\nb. Was received by one Party in good faith from a third party not\nsubject to a confidential obligation to the other Party; or\nc. Now is or later becomes publicly known through no breach of\nconfidential obligation by the receiving Party; or\nd. Is disclosed to a third party by the source without a similar\nnondisclosure restriction; or\nMutual Nondisclosure Agreement\nVerizon Proprietary and Confidential\ne. Was developed by the receiving Party without the developing\nperson(s) having access to any of the Confidential Information\nreceived from the other Party; or\nf. Is authorized in writing by the disclosing Party to be released\nor is designated in writing by that Party as no longer being\nconfidential or proprietary.\n5. Each Party may disclose Confidential Information to an Affiliate,\nsubject to the terms and conditions set forth herein. For purposes of\nthis Agreement, an Affiliate shall be defined as an entity that\ncontrols, is controlled by, or is under common control with that Party.\nEach Party agrees to be responsible for any breach of this Agreement\nby each of its respective Affiliates.\n6. Other than as required by law or as set forth in Section 3(c),\nneither Party shall. without the other Party’s prior written consent,\ndisclose to any person, or make a public announcement of, the\nexistence of discussions or negotiations or any of the terms relating to\nthe matter of mutual interest described above or any Confidential\nInformation.\n7. If a Party (“Ordered Party’) receives a request to disclose any\nConfidential Information of the other Party, whether pursuant to a\nvalid subpoena or an order issued by a court or regulatory body\n(“Ordering Party), and on advice of legal counsel that disclosure is\nrequired by law, then prior to disclosure, the Ordered Party shall, to\nthe extent permitted by law, (i) notify the other Party of the terms of\nsuch request and advice, (ii) cooperate with the other Party in taking\nlawful steps to resist, narrow, or eliminate the need for such\ndisclosure, and (iii) if disclosure is nonetheless required, work with\nthe other Party to take into account the other Party’s reasonable\nrequirements as to its timing, content and manner of making or\ndelivery and use best efforts to obtain a protective order or other\nbinding assurance from the Ordering Party that confidential treatment\nshall be afforded to such portion of the Confidential Information as is\nrequired to be disclosed. The foregoing is without limitation of the\nother Party’s ability to seek a protective order or other relief limiting\nsuch disclosure; in such a case, the Ordered Party shall cooperate in\nsuch efforts by the other Party.\n8. It is agreed that a violation of any of the provisions of this\nAgreement may cause irreparable harm and injury to the non-violating\nParty and that Party shall be entitled, in addition to any other rights and\nremedies it may have at law or in equity, to seek an injunction\nenjoining and restraining the violating Party from doing or continuing\nto do any such act and any other violations or threatened violations of\nthis Agreement. Absent a showing of willful violation of this\nAgreement, neither Party shall be liable to the other, whether in\ncontract or in tort or otherwise, for special, indirect incidental or\nconsequential damages including lost income or profits of any kind,\neven if such Party has been advised of the possibility thereof.\n9. Neither disclosure of Confidential Information nor this Agreement\nshall be construed as a license to make, use or sell the Confidential\nInformation or derived products. Neither this Agreement nor provision\nof Confidential Information pursuant to it shall be construed as an\nagreement, commitment, promise or representation by either Party to\ndo business with the other or to do anything except as set out\nspecifically in this Agreement.\n10. The construction, interpretation and performance of this\nAgreement shall be governed by and construed in accordance with the\nlaws of the State of New York without regard to any conflicts of law\nprinciples and subject to the exclusive jurisdiction of its federal or state\ncourts in New York.\n11. No customer information of either Party shall be stored, transmitted\nor accessed, at, in or through a site located outside of the United States\nwithout the advance written consent of the other Party, Moreover,\nCompany agrees that, in event it comes into possession of any Verizon\nWireless customer data no such data shall be stored, transmitted or\naccessed, at, in or through, a site located outside of the United States\nwithout the advance written consent of Verizon Wireless. For purposes\nof this provision, the term “Verizon Wireless customer data shall mean:\n(a) any subscriber information, including, without limitation, name\naddress, phone number or other personal information of any Verizon\nWireless subscriber, (b) any call-associated data, including, without\nlimitation, the telephone number, internet address or similar identifying\ndesignator associated\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives.\nVerizon Corporate Services Group Inc.\nAOL Inc.\nBy: /s/ Christine Pantoya\nBy: /s/ John b. Frelinghuysen\nName: Christine C. Pantoya\nName: John b. Frelinghuysen\nTitle: Vice President, Corporate Strategy and Development\nTitle: SVP, Head of Strategy\nDate: 11/25/2014\nDate: 11/25/2014\nMutual Nondisclosure Agreement\nVerizon Proprietary and Confidential\nwith a communication; (c) any billing records; (d) the time, date, size\nduration of a communication or the physical location of equipment\nused in connection with a communication; or (e) the content of any\nVerizon Wireless customer communication.\n12. Each Party agrees to comply with all applicable laws, regulations,\ntreaties and orders in connection with its activities under this\nAgreement, including the laws regarding economic and trade\nsanctions and bribery of foreign officials. Each Party acknowledges\nthat the proprietary data, know-how, software or other materials or\ninformation obtained from the other Party under this Agreement may\nbe commodities and/or technical data subject to the Export\nAdministration Regulations (the “EAR”) of the U.S . Department of\nCommerce as well as trade and economic sanctions subject to the\nTrading With the Enemy Act (TWEA) and the International\nEmergency Economic Powers Act (IEEPA) of the Office of Foreign\nAsset Control within the Department of Commerce, and that any\nexport or re-export thereof must be in compliance with the EAR,\nTWEA and IEEPA. Each Party agrees that it shall not export or re-\nexport, directly or indirectly, either during the term of this Agreement\nor after its expiration, any commodities and/or technical data (or\ndirect products thereof) provided under this Agreement in any form\nto destinations in or nationals of Country Groups D:1 or E, as\nspecified in Supplement No. 1 to Part 740 of the EAR, and as\nmodified from time to time by the U.S. Department of Commerce, or\nto destinations that are otherwise controlled or embargoed under U.S.\nlaw.\n13. If any provision of this Agreement shall be invalid or\nunenforceable, then such invalidity or unenforceability shall not\ninvalidate or render unenforceable the entire Agreement. The entire\nAgreement shall be construed as if not containing the particular invalid\nor unenforceable provision or provisions, and the rights and\nobligations of the parties shall be construed and enforced accordingly.\n14. This Agreement may be executed originally or by facsimile, and in\ncounterparts, each of which shall be deemed an original and such\ncounterparts together shall constitute one and the same instrument.\nWhen so executed and delivered by each Party to the other, this\nAgreement shall become binding.\n15. This Agreement is the entire agreement between the parties with\nrespect to nondisclosure of Confidential Information pertaining to the\nmatter of mutual interest stated above and supersedes all prior\nagreements and understandings with respect to this subject. This\nAgreement may be amended only by written agreement executed by\nboth parties. This Agreement shall not be assigned or transferred by\neither Party without the prior written consent of the other. 46f429bd4fdc9476d4b0026f3fd3b602.pdf effective_date jurisdiction party term John D. Thomas\nJuly 11, 2017\nPage 16 of 19\nEXHIBIT 1\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (the “Agreement”) is dated as of October 1, 2018 and is made\nand entered into by and between CUBIC CORPORATION, a corporation organized and existing under the\nlaws of the State of Delaware having its principal offices at 9333 Balboa Avenue, San Diego, California\n92123, and JOHN D. THOMAS (“Recipient”).\n1.\nRecipient may be providing occasional consulting services to Cubic Corporation or its\nsubsidiaries (collectively “Cubic” or the “Company”), during the period of October 1, 2018 and September\n30, 2019. In providing such consulting services, Recipient may receive access to Proprietary Information\n(as defined below) from Cubic that Cubic deems to be confidential, proprietary, and/or business-sensitive.\nCubic will provide Recipient with access to such Proprietary Information for the sole purpose of learning\nabout and assisting with Cubic’s business and operations (hereinafter, the “Purpose”), subject to\nRecipient’s strict adherence to the obligations set forth below.\n2.\n"Proprietary Information" shall mean all forms and types of business, technical, financial,\neconomic, sales, marketing, or customer information of Cubic, including, without limitation, written,\nmagnetic or optical media, and oral and visual disclosures that Recipient receives or has access to, from\nthe Cubic network or any other source, as a result of the Purpose, which has not been previously disclosed\nto the general public by an authorized Company representative or customer, regardless of whether such\ninformation would be deemed a trade secret under applicable law. Proprietary Information shall be\ninterpreted broadly and includes, but is not limited to, business strategies and plans, financial information,\nprojections, pricing and cost information, proposals, lists of present of future customers, all information\nobtained from or about current or future customers, supplier lists and information, plans and results of\nresearch and development, reports, manuals, policies, evaluations, designs, specifications, blueprints,\ndrawings, patterns, compilations, formulas, programs, software, prototypes, methods, processes, devices,\nprocedures, special techniques of any kind peculiar to the Company’s operations, or other confidential or\nproprietary information or intellectual property related to the business, products, services, or plans of\nCompany, whether tangible or intangible, and whether stored or memorialized physically, electronically,\nphotographically, or in Recipient’s memory. This specifically includes all information the Company\nreceives from customers or other third parties that is not generally known to the public or is subject to a\nconfidentiality agreement. Proprietary Information does not include furnished information which:\n(1) At the time of disclosure, is in the public domain;\n(2) After disclosure, lawfully enters the public domain other than as a result of the act or\nomission of Recipient; or\n(3) Recipient can conclusively demonstrate by written evidence that the same was\nlawfully known to it without restriction or was developed independently by it without direct or indirect\naccess to the Proprietary Information provided by Cubic.\n3.\nRecipient acknowledges that the Company is entitled to prevent the unauthorized use or\ndisclosure of its Proprietary Information. Unless expressly authorized by Cubic for its sole benefit,\nRecipient shall hold in the strictest confidence and not use, disclose, or allow to be\nJohn D. Thomas\nJuly 11, 2017\nPage 17 of 19\ndisclosed to any person, firm, or corporation, the Company’s Proprietary Information. Recipient shall take\nall reasonable measures necessary to maintain the secrecy of Proprietary Information.\n4.\nThis Agreement shall become effective upon its execution by both Parties as of the date written\nabove (the “Effective Date”) and shall apply to all information furnished by Cubic to Recipient for a\nperiod of one year following the Effective Date (“the Term”). The Term may be extended by mutual\nwritten agreement between the Parties.\n5.\nUpon expiration or termination of this Agreement, or upon demand of Cubic at any time,\nRecipient shall, at Cubic’s option, (a) immediately return all Proprietary Information (including, but not\nlimited to, all copies, extracts, summaries, or digests thereof) to Cubic or (b) destroy all Proprietary\nInformation (including, but not limited to, all copies, extracts, summaries, or digests thereof) and provide\nCubic with written certification of such destruction. Notwithstanding the termination or expiration of this\nAgreement, this Agreement shall be coterminous and expire with any agreement to which it is or becomes\nappended, and the scope of this Agreement shall be augmented to permit the Parties to perform under the\nappended agreement.\n6.\nAll rights in Proprietary Information are reserved by Cubic. Other than the rights expressly\ngranted herein, neither this Agreement, nor the disclosure of any Proprietary Information, shall be\nconstrued as expressing or implying any other rights, including but not limited to any rights of ownership\nof Proprietary Information, or rights to any invention, patent, copyright or other intellectual property right\nheretofore or hereafter owned, acquired, developed, or licensable by Cubic. All Proprietary Information\nshall remain the exclusive property of Cubic. This Agreement shall not be construed to recognize or create\nany formal business, agency, or employment relationship.\n7.\nAny notice under or in connection with this Agreement shall be in writing and delivered by\nreputable overnight mail equivalent carrier, facsimile, or first class mail. Such notice shall be deemed to\nhave been given when received by the Party to which the communication is directed at its address set forth\nbelow:\nTo Cubic:\nTo Recipient:\nAttn: Law Department\nJohn D. Thomas\nCubic Corporation\n9333 Balboa Avenue\nSan Diego, CA 92123\nPhone: (858) 505-2499\nFax: (858) 505-1599\n8.\nNeither this Agreement, nor any rights or obligations hereunder, may be assigned, delegated, or\notherwise transferred by either Party without the express prior written consent of the other Party, except to\nan entity that succeeds to all or substantially all of the business assets of the assigning Party, and so long as\nsuch entity agrees in writing to be bound by the terms and conditions of this Agreement. Any attempted\nassignment or delegation in contravention of this clause shall be void and unenforceable. The foregoing\nnotwithstanding, Cubic may assign or otherwise transfer this Agreement to its parent company or any\nwholly-owned subsidiary thereof without Recipient’s consent.\nJohn D. Thomas\nJuly 11, 2017\nPage 18 of 19\n9.\nIf any material condition or provision contained herein is held to be invalid, void, or\nunenforceable by a final judgment of any court of competent jurisdiction, then the remaining provisions of\nthis Agreement shall remain in full force and effect and the unenforceable provision shall be deemed\nmodified to the limited extent required to permit its enforcement in a manner most closely representing the\nintention of the Parties as expressed herein.\n10.\nThe failure to exercise any right under this Agreement shall not be deemed to be a waiver of\nsuch right, and shall not affect the right to enforce each and every right hereof. The waiver of any breach\nof any term, provision, covenant, or condition herein contained shall not be deemed to be a waiver of any\n(a) subsequent breach of such term, provision, covenant, or condition or (b) other term, provision,\ncovenant, or condition.\n11.\nThis Agreement shall be subject to and construed in accordance with the laws of the State of\nCalifornia, excluding its conflicts of laws provisions. This Agreement shall be construed as having been\nprepared by both Parties. The Parties waive California Civil Code Section 1654, which states "in cases of\nuncertainty not removed by the preceding rules, the language of a contract should be interpreted most\nstrongly against the party who caused the uncertainty to exist."\n12.\nRecipient acknowledges that, due to the unique nature of Proprietary Information, there can be\nno adequate remedy at law for Recipient’s unauthorized use or disclosure of Proprietary Information in\nbreach of this Agreement and that such breach will cause immediate and irreparable harm to Cubic. Upon\nany such breach or any threat thereof by Recipient, Cubic shall be entitled to appropriate equitable relief\nfrom any court of competent jurisdiction (without being required to post a bond or other security) and shall\nbe indemnified by Recipient from any loss or harm (including, without limitation, attorneys’ fees) in\nconnection with any breach or enforcement of Recipient’s obligations under this Agreement or the\nunauthorized use or disclosure of any such Proprietary Information. Recipient consents to and submits to\nthe jurisdiction of any state or federal court located within the County of San Diego, California, if Cubic\nelects to bring such an action for equitable relief in any such court.\n13.\nThis Agreement may be executed in counterparts and transmitted by facsimile, each of which,\nwhen so executed and transmitted, shall be deemed to be an original, and all such counterparts together\nshall constitute one and the same document.\n14.\nThe obligations in this Agreement supplement and do not supersede the terms and conditions in\nthe Employee Inventions And Secrecy Agreement executed by Recipient when he was an employee of\nCubic. This Agreement may be modified only by a written amendment executed by duly authorized\nrepresentatives of each Party.\n(signatures provided on following page)\nJohn D. Thomas\nJuly 11, 2017\nPage 19 of 19\nIN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized\nrepresentatives as of the day and year first above written.\nCUBIC CORPORATION\nJOHN D. THOMAS\nBy: /s/ James R. Edwards\nSigned:/s/ John D. Thomas\nPrint Name: James R. Edwards\nDate: July 11, 2017\nTitle: Sr. Vice President, General Counsel & Secretary\nDate: July 11, 2017 John D. Thomas\nJuly 11, 2017\nPage 16 of 19\nEXHIBIT 1\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (the “Agreement”) is dated as of October 1, 2018 and is made\nand entered into by and between CUBIC CORPORATION, a corporation organized and existing under the\nlaws of the State of Delaware having its principal offices at 9333 Balboa Avenue, San Diego, California\n92123, and JOHN D. THOMAS (“Recipient”).\n1. Recipient may be providing occasional consulting services to Cubic Corporation or its\nsubsidiaries (collectively “Cubic” or the “Company”), during the period of October 1, 2018 and September\n30, 2019. In providing such consulting services, Recipient may receive access to Proprietary Information\n(as defined below) from Cubic that Cubic deems to be confidential, proprietary, and/or business-sensitive.\nCubic will provide Recipient with access to such Proprietary Information for the sole purpose of learning\nabout and assisting with Cubic’s business and operations (hereinafter, the “Purpose”), subject to\nRecipient’s strict adherence to the obligations set forth below.\n2. "Proprietary Information" shall mean all forms and types of business, technical, financial,\neconomic, sales, marketing, or customer information of Cubic, including, without limitation, written,\nmagnetic or optical media, and oral and visual disclosures that Recipient receives or has access to, from\nthe Cubic network or any other source, as a result of the Purpose, which has not been previously disclosed\nto the general public by an authorized Company representative or customer, regardless of whether such\ninformation would be deemed a trade secret under applicable law. Proprietary Information shall be\ninterpreted broadly and includes, but is not limited to, business strategies and plans, financial information,\nprojections, pricing and cost information, proposals, lists of present of future customers, all information\nobtained from or about current or future customers, supplier lists and information, plans and results of\nresearch and development, reports, manuals, policies, evaluations, designs, specifications, blueprints,\ndrawings, patterns, compilations, formulas, programs, software, prototypes, methods, processes, devices,\nprocedures, special techniques of any kind peculiar to the Company’s operations, or other confidential or\nproprietary information or intellectual property related to the business, products, services, or plans of\nCompany, whether tangible or intangible, and whether stored or memorialized physically, electronically,\nphotographically, or in Recipient’s memory. This specifically includes all information the Company\nreceives from customers or other third parties that is not generally known to the public or is subject to a\nconfidentiality agreement. Proprietary Information does not include furnished information which:\n(1) At the time of disclosure, is in the public domain;\n(2) After disclosure, lawfully enters the public domain other than as a result of the act or\nomission of Recipient; or\n3) Recipient can conclusively demonstrate by written evidence that the same was\nlawfully known to it without restriction or was developed independently by it without direct or indirect\naccess to the Proprietary Information provided by Cubic.\n3. Recipient acknowledges that the Company is entitled to prevent the unauthorized use or\ndisclosure of its Proprietary Information. Unless expressly authorized by Cubic for its sole benefit,\nRecipient shall hold in the strictest confidence and not use, disclose, or allow to be\nJohn D. Thomas\nJuly 11, 2017\nPage 17 of 19\ndisclosed to any person, firm, or corporation, the Company’s Proprietary Information. Recipient shall take\nall reasonable measures necessary to maintain the secrecy of Proprietary Information.\n4. This Agreement shall become effective upon its execution by both Parties as of the date written\nabove (the “Effective Date”) and shall apply to all information furnished by Cubic to Recipient for a\nperiod of one year following the Effective Date (“the Term”). The Term may be extended by mutual\nwritten agreement between the Parties.\n5. Upon expiration or termination of this Agreement, or upon demand of Cubic at any time,\nRecipient shall, at Cubic’s option, (a) immediately return all Proprietary Information (including, but not\nlimited to, all copies, extracts, summaries, or digests thereof) to Cubic or (b) destroy all Proprietary\nInformation (including, but not limited to, all copies, extracts, summaries, or digests thereof) and provide\nCubic with written certification of such destruction. Notwithstanding the termination or expiration of this\nAgreement, this Agreement shall be coterminous and expire with any agreement to which it is or becomes\nappended, and the scope of this Agreement shall be augmented to permit the Parties to perform under the\nappended agreement.\n6. All rights in Proprietary Information are reserved by Cubic. Other than the rights expressly\ngranted herein, neither this Agreement, nor the disclosure of any Proprietary Information, shall be\nconstrued as expressing or implying any other rights, including but not limited to any rights of ownership\nof Proprietary Information, or rights to any invention, patent, copyright or other intellectual property right\nheretofore or hereafter owned, acquired, developed, or licensable by Cubic. All Proprietary Information\nshall remain the exclusive property of Cubic. This Agreement shall not be construed to recognize or create\nany formal business, agency, or employment relationship.\n7. Any notice under or in connection with this Agreement shall be in writing and delivered by\nreputable overnight mail equivalent carrier, facsimile, or first class mail. Such notice shall be deemed to\nhave been given when received by the Party to which the communication is directed at its address set forth\nbelow:\nTo Cubic: To Recipient:\nAttn: Law Department John D. Thomas\nCubic Corporation\n9333 Balboa Avenue\nSan Diego, CA 92123\nPhone: (858) 505-2499\nFax: (858) 505-1599\n8. Neither this Agreement, nor any rights or obligations hereunder, may be assigned, delegated, or\notherwise transferred by either Party without the express prior written consent of the other Party, except to\nan entity that succeeds to all or substantially all of the business assets of the assigning Party, and so long as\nsuch entity agrees in writing to be bound by the terms and conditions of this Agreement. Any attempted\nassignment or delegation in contravention of this clause shall be void and unenforceable. The foregoing\nnotwithstanding, Cubic may assign or otherwise transfer this Agreement to its parent company or any\nwholly-owned subsidiary thereof without Recipient’s consent.\nJohn D. Thomas\nJuly 11, 2017\nPage 18 of 19\n9. If any material condition or provision contained herein is held to be invalid, void, or\nunenforceable by a final judgment of any court of competent jurisdiction, then the remaining provisions of\nthis Agreement shall remain in full force and effect and the unenforceable provision shall be deemed\nmodified to the limited extent required to permit its enforcement in a manner most closely representing the\nintention of the Parties as expressed herein.\n10. The failure to exercise any right under this Agreement shall not be deemed to be a waiver of\nsuch right, and shall not affect the right to enforce each and every right hereof. The waiver of any breach\nof any term, provision, covenant, or condition herein contained shall not be deemed to be a waiver of any\n(a) subsequent breach of such term, provision, covenant, or condition or (b) other term, provision,\ncovenant, or condition.\n11. This Agreement shall be subject to and construed in accordance with the laws of the State of\nCalifornia, excluding its conflicts of laws provisions. This Agreement shall be construed as having been\nprepared by both Parties. The Parties waive California Civil Code Section 1654, which states "in cases of\nuncertainty not removed by the preceding rules, the language of a contract should be interpreted most\nstrongly against the party who caused the uncertainty to exist."\n12. Recipient acknowledges that, due to the unique nature of Proprietary Information, there can be\nno adequate remedy at law for Recipient’s unauthorized use or disclosure of Proprietary Information in\nbreach of this Agreement and that such breach will cause immediate and irreparable harm to Cubic. Upon\nany such breach or any threat thereof by Recipient, Cubic shall be entitled to appropriate equitable relief\nfrom any court of competent jurisdiction (without being required to post a bond or other security) and shall\nbe indemnified by Recipient from any loss or harm (including, without limitation, attorneys’ fees) in\nconnection with any breach or enforcement of Recipient’s obligations under this Agreement or the\nunauthorized use or disclosure of any such Proprietary Information. Recipient consents to and submits to\nthe jurisdiction of any state or federal court located within the County of San Diego, California, if Cubic\nelects to bring such an action for equitable relief in any such court.\n13. This Agreement may be executed in counterparts and transmitted by facsimile, each of which,\nwhen so executed and transmitted, shall be deemed to be an original, and all such counterparts together\nshall constitute one and the same document.\n14. The obligations in this Agreement supplement and do not supersede the terms and conditions in\nthe Employee Inventions And Secrecy Agreement executed by Recipient when he was an employee of\nCubic. This Agreement may be modified only by a written amendment executed by duly authorized\nrepresentatives of each Party.\n(signatures provided on following page)\nJohn D. Thomas\nJuly 11, 2017\nPage 19 of 19\nIN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized\nrepresentatives as of the day and year first above written.\nCUBIC CORPORATION JOHN D. THOMAS\nBy: /s/ James R. Edwards Signed:/s/ John D. Thomas\nPrint Name: James R. Edwards Date: July 11, 2017\nTitle: Sr. Vice President, General Counsel & Secretary\nDate: July 11, 2017 John D. Thomas\nJuly 11, 2017\nPage 16 of 19\nEXHIBIT 1\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (the "Agreement") is dated as of October 1, 2018 and is made\nand entered into by and between CUBIC CORPORATION, a corporation organized and existing under the\nlaws of the State of Delaware having its principal offices at 9333 Balboa Avenue, San Diego, California\n92123, and JOHN D. THOMAS ("Recipient").\n1.\nRecipient may be providing occasional consulting services to Cubic Corporation or its\nsubsidiaries (collectively "Cubic" or the "Company"), during the period of October 1, 2018 and September\n30, 2019. In providing such consulting services, Recipient may receive access to Proprietary Information\n(as defined below) from Cubic that Cubic deems to be confidential, proprietary, and/or business-sensitive.\nCubic will provide Recipient with access to such Proprietary Information for the sole purpose of learning\nabout and assisting with Cubic's business and operations (hereinafter, the "Purpose"), subject to\nRecipient's strict adherence to the obligations set forth below.\n2.\n"Proprietary Information" shall mean all forms and types of business, technical, financial,\neconomic, sales, marketing, or customer information of Cubic, including, without limitation, written,\nmagnetic\nor\noptical\nmedia,\nand\noral\nand\nvisual\ndisclosures\nthat\nRecipient\nreceives\nor\nhas\naccess\nto,\nfrom\nthe Cubic network or any other source, as a result of the Purpose, which has not been previously disclosed\nto the general public by an authorized Company representative or customer, regardless of whether such\ninformation would be deemed a trade secret under applicable law. Proprietary Information shall be\ninterpreted broadly and includes, but is not limited to, business strategies and plans, financial information,\nprojections,\npricing\nand\ncost\ninformation,\nproposals,\nlists\nof\npresent\nof\nfuture\ncustomers,\nall\ninformation\nobtained from or about current or future customers, supplier lists and information, plans and results of\nresearch and development, reports, manuals, policies, evaluations, designs, specifications, blueprints,\ndrawings, patterns, compilations, formulas, programs, software, prototypes, methods, processes devices,\nprocedures, special techniques of any kind peculiar to the Company's operations, or other confidential or\nproprietary information or intellectual property related to the business, products, services, or plans of\nCompany, whether tangible or intangible, and whether stored or memorialized physically, electronically,\nphotographically, or in Recipient's memory. This specifically includes all information the Company\nreceives from customers or other third parties that is not generally known to the public or is subject to a\nconfidentiality agreement. Proprietary Information does not include furnished information which:\n(1) At the time of disclosure, is in the public domain;\n(2) After disclosure, lawfully enters the public domain other than as a result of the act or\nomission of Recipient; or\n(3)\nRecipient can conclusively demonstrate by written evidence that the same was\nlawfully known to it without restriction or was developed independently by it without direct or indirect\naccess to the Proprietary Information provided by Cubic.\n3.\nRecipient acknowledges that the Company is entitled to prevent the unauthorized use or\ndisclosure of its Proprietary Information. Unless expressly authorized by Cubic for its sole benefit,\nRecipient shall hold in the strictest confidence and not use, disclose, or allow to be\nJohn D. Thomas\nJuly 11, 2017\nPage 17 of 19\ndisclosed to any person, firm, or corporation, the Company's Proprietary Information. Recipient shall take\nall reasonable measures necessary to maintain the secrecy of Proprietary Information.\n4.\nThis Agreement shall become effective upon its execution by both Parties as of the date written\nabove (the "Effective Date") and shall apply to all information furnished by Cubic to Recipient for a\nperiod of one year following the Effective Date ("the Term"). The Term may be extended by mutual\nwritten agreement between the Parties.\n5.\nUpon expiration or termination of this Agreement, or upon demand of Cubic at any time,\nRecipient\nshall,\nat\nCubic's\noption,\n(a)\nimmediately\nreturn\nall\nProprietary\nInformation\n(including,\nbut\nnot\nlimited to, all copies, extracts, summaries, or digests thereof) to Cubic or (b) destroy all Proprietary\nInformation (including, but not limited to, all copies, extracts, summaries, or digests thereof) and provide\nCubic with written certification of such destruction. Notwithstanding the termination or expiration of this\nAgreement, this Agreement shall be coterminous and expire with any agreement to which it is or becomes\nappended, and the scope of this Agreement shall be augmented to permit the Parties to perform under the\nappended agreement.\n6.\nAll rights in Proprietary Information are reserved by Cubic. Other than the rights expressly\ngranted herein, neither this Agreement, nor the disclosure of any Proprietary Information, shall be\nconstrued as expressing or implying any other rights, including but not limited to any rights of ownership\nof Proprietary Information, or rights to any invention, patent, copyright or other intellectual property right\nheretofore or hereafter owned, acquired, developed, or licensable by Cubic. All Proprietary Information\nshall remain the exclusive property of Cubic. This Agreement shall not be construed to recognize or create\nany formal business, agency, or employment relationship.\n7.\nAny notice under or in connection with this Agreement shall be in writing and delivered by\nreputable overnight mail equivalent carrier, facsimile, or first class mail. Such notice shall be deemed to\nhave been given when received by the Party to which the communication is directed at its address set forth\nbelow:\nTo Cubic:\nTo Recipient:\nAttn: Law Department\nJohn D. Thomas\nCubic Corporation\n9333 Balboa Avenue\nSan Diego, CA 92123\nPhone: (858) 505-2499\nFax: (858) 505-1599\n8.\nNeither this Agreement, nor any rights or obligations hereunder, may be assigned, delegated, or\notherwise transferred by either Party without the express prior written consent of the other Party, except to\nan entity that succeeds to all or substantially all of the business assets of the assigning Party, and so long as\nsuch entity agrees in writing to be bound by the terms and conditions of this Agreement. Any attempted\nassignment or delegation in contravention of this clause shall be void and unenforceable. The foregoing\nnotwithstanding, Cubic may assign or otherwise transfer this Agreement to its parent company or any\nwholly-owned subsidiary thereof without Recipient's consent.\nJohn D. Thomas\nJuly 11, 2017\nPage 18 of 19\n9.\nIf any material condition or provision contained herein is held to be invalid, void, or\nunenforceable\nby\na\nfinal\njudgment\nof\nany\ncourt\nof\ncompetent\njurisdiction,\nthen\nthe\nremaining\nprovisions\nof\nthis Agreement shall remain in full force and effect and the unenforceable provision shall be deemed\nmodified to the limited extent required to permit its enforcement in a manner most closely representing the\nintention of the Parties as expressed herein.\n10.\nThe failure to exercise any right under this Agreement shall not be deemed to be a waiver\nof\nsuch right, and shall not affect the right to enforce each and every right hereof. The waiver of any breach\nof any term, provision covenant, or condition herein contained shall not be deemed to be a waiver of any\n(a) subsequent breach of such term, provision, covenant, or condition or (b) other term, provision,\ncovenant, or condition.\n11.\nThis Agreement shall be subject to and construed in accordance with the laws of the State of\nCalifornia, excluding its conflicts of laws provisions. This Agreement shall be construed as having been\nprepared by both Parties. The Parties waive California Civil Code Section 1654, which states "in cases of\nuncertainty not removed by the preceding rules, the language of a contract should be interpreted most\nstrongly against the party who caused the uncertainty to exist."\n12.\nRecipient acknowledges that, due to the unique nature of Proprietary Information, there can be\nno\nadequate\nremedy\nat\nlaw\nfor\nRecipient's\nunauthorized\nuse\nor\ndisclosure\nof\nProprietary\nInformation\nin\nbreach of this Agreement and that such breach will cause immediate and irreparable harm to Cubic. Upon\nany such breach or any threat thereof by Recipient, Cubic shall be entitled to appropriate equitable relief\nfrom any court of competent jurisdiction (without being required to post a bond or other security) and shall\nbe indemnified by Recipient from any loss or harm (including, without limitation, attorneys' fees) in\nconnection with any breach or enforcement of Recipient's obligations under this Agreement or the\nunauthorized use or disclosure of any such Proprietary Information. Recipient consents to and submits to\nthe jurisdiction of any state or federal court located within the County of San Diego, California, if Cubic\nelects to bring such an action for equitable relief in any such court.\n13.\nThis Agreement may be executed in counterparts and transmitted by facsimile, each of which,\nwhen so executed and transmitted, shall be deemed to be an original, and all such counterparts together\nshall constitute one and the same document.\n14.\nThe obligations in this Agreement supplement and do not supersede the terms and conditions in\nthe Employee Inventions And Secrecy Agreement executed by Recipient when he was an employee of\nCubic. This Agreement may be modified only by a written amendment executed by duly authorized\nrepresentatives of each Party.\n(signatures provided on following page)\nJohn D. Thomas\nJuly 11, 2017\nPage 19 of 19\nIN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized\nrepresentatives as of the day and year first above written.\nCUBIC CORPORATION\nJOHN D. THOMAS\nBy: /s/ James R. Edwards\nSigned:/s/ John D. Thomas\nPrint Name: James R. Edwards\nDate: July 11, 2017\nTitle: Sr. Vice President, General Counsel & Secretary\nDate: July 11, 2017 John D. Thomas\nJuly 11, 2017\nPage 16 of 19\nEXHIBIT 1\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (the “Agreement”) is dated as of October 1, 2018 and is made\nand entered into by and between CUBIC CORPORATION, a corporation organized and existing under the\nlaws of the State of Delaware having its principal offices at 9333 Balboa Avenue, San Diego, California\n92123, and JOHN D. THOMAS (“Recipient”).\n1.\nRecipient may be providing occasional consulting services to Cubic Corporation or its\nsubsidiaries (collectively “Cubic” or the “Company”), during the period of October 1, 2018 and September\n30, 2019. In providing such consulting services, Recipient may receive access to Proprietary Information\n(as defined below) from Cubic that Cubic deems to be confidential, proprietary, and/or business-sensitive.\nCubic will provide Recipient with access to such Proprietary Information for the sole purpose of learning\nabout and assisting with Cubic’s business and operations (hereinafter, the “Purpose”), subject to\nRecipient’s strict adherence to the obligations set forth below.\n2.\n"Proprietary Information" shall mean all forms and types of business, technical, financial,\neconomic, sales, marketing, or customer information of Cubic, including, without limitation, written,\nmagnetic or optical media, and oral and visual disclosures that Recipient receives or has access to, from\nthe Cubic network or any other source, as a result of the Purpose, which has not been previously disclosed\nto the general public by an authorized Company representative or customer, regardless of whether such\ninformation would be deemed a trade secret under applicable law. Proprietary Information shall be\ninterpreted broadly and includes, but is not limited to, business strategies and plans, financial information,\nprojections, pricing and cost information, proposals, lists of present of future customers, all information\nobtained from or about current or future customers, supplier lists and information, plans and results of\nresearch and development, reports, manuals, policies, evaluations, designs, specifications, blueprints,\ndrawings, patterns, compilations, formulas, programs, software, prototypes, methods, processes, devices,\nprocedures, special techniques of any kind peculiar to the Company’s operations, or other confidential or\nproprietary information or intellectual property related to the business, products, services, or plans of\nCompany, whether tangible or intangible, and whether stored or memorialized physically, electronically,\nphotographically, or in Recipient’s memory. This specifically includes all information the Company\nreceives from customers or other third parties that is not generally known to the public or is subject to a\nconfidentiality agreement. Proprietary Information does not include furnished information which:\n(1) At the time of disclosure, is in the public domain;\n(2) After disclosure, lawfully enters the public domain other than as a result of the act or\nomission of Recipient; or\n(3) Recipient can conclusively demonstrate by written evidence that the same was\nlawfully known to it without restriction or was developed independently by it without direct or indirect\naccess to the Proprietary Information provided by Cubic.\n3.\nRecipient acknowledges that the Company is entitled to prevent the unauthorized use or\ndisclosure of its Proprietary Information. Unless expressly authorized by Cubic for its sole benefit,\nRecipient shall hold in the strictest confidence and not use, disclose, or allow to be\nJohn D. Thomas\nJuly 11, 2017\nPage 17 of 19\ndisclosed to any person, firm, or corporation, the Company’s Proprietary Information. Recipient shall take\nall reasonable measures necessary to maintain the secrecy of Proprietary Information.\n4.\nThis Agreement shall become effective upon its execution by both Parties as of the date written\nabove (the “Effective Date”) and shall apply to all information furnished by Cubic to Recipient for a\nperiod of one year following the Effective Date (“the Term”). The Term may be extended by mutual\nwritten agreement between the Parties.\n5.\nUpon expiration or termination of this Agreement, or upon demand of Cubic at any time,\nRecipient shall, at Cubic’s option, (a) immediately return all Proprietary Information (including, but not\nlimited to, all copies, extracts, summaries, or digests thereof) to Cubic or (b) destroy all Proprietary\nInformation (including, but not limited to, all copies, extracts, summaries, or digests thereof) and provide\nCubic with written certification of such destruction. Notwithstanding the termination or expiration of this\nAgreement, this Agreement shall be coterminous and expire with any agreement to which it is or becomes\nappended, and the scope of this Agreement shall be augmented to permit the Parties to perform under the\nappended agreement.\n6.\nAll rights in Proprietary Information are reserved by Cubic. Other than the rights expressly\ngranted herein, neither this Agreement, nor the disclosure of any Proprietary Information, shall be\nconstrued as expressing or implying any other rights, including but not limited to any rights of ownership\nof Proprietary Information, or rights to any invention, patent, copyright or other intellectual property right\nheretofore or hereafter owned, acquired, developed, or licensable by Cubic. All Proprietary Information\nshall remain the exclusive property of Cubic. This Agreement shall not be construed to recognize or create\nany formal business, agency, or employment relationship.\n7.\nAny notice under or in connection with this Agreement shall be in writing and delivered by\nreputable overnight mail equivalent carrier, facsimile, or first class mail. Such notice shall be deemed to\nhave been given when received by the Party to which the communication is directed at its address set forth\nbelow:\nTo Cubic:\nTo Recipient:\nAttn: Law Department\nJohn D. Thomas\nCubic Corporation\n9333 Balboa Avenue\nSan Diego, CA 92123\nPhone: (858) 505-2499\nFax: (858) 505-1599\n8.\nNeither this Agreement, nor any rights or obligations hereunder, may be assigned, delegated, or\notherwise transferred by either Party without the express prior written consent of the other Party, except to\nan entity that succeeds to all or substantially all of the business assets of the assigning Party, and so long as\nsuch entity agrees in writing to be bound by the terms and conditions of this Agreement. Any attempted\nassignment or delegation in contravention of this clause shall be void and unenforceable. The foregoing\nnotwithstanding, Cubic may assign or otherwise transfer this Agreement to its parent company or any\nwholly-owned subsidiary thereof without Recipient’s consent.\nJohn D. Thomas\nJuly 11, 2017\nPage 18 of 19\n9.\nIf any material condition or provision contained herein is held to be invalid, void, or\nunenforceable by a final judgment of any court of competent jurisdiction, then the remaining provisions of\nthis Agreement shall remain in full force and effect and the unenforceable provision shall be deemed\nmodified to the limited extent required to permit its enforcement in a manner most closely representing the\nintention of the Parties as expressed herein.\n10.\nThe failure to exercise any right under this Agreement shall not be deemed to be a waiver of\nsuch right, and shall not affect the right to enforce each and every right hereof. The waiver of any breach\nof any term, provision, covenant, or condition herein contained shall not be deemed to be a waiver of any\n(a) subsequent breach of such term, provision, covenant, or condition or (b) other term, provision,\ncovenant, or condition.\n11.\nThis Agreement shall be subject to and construed in accordance with the laws of the State of\nCalifornia, excluding its conflicts of laws provisions. This Agreement shall be construed as having been\nprepared by both Parties. The Parties waive California Civil Code Section 1654, which states "in cases of\nuncertainty not removed by the preceding rules, the language of a contract should be interpreted most\nstrongly against the party who caused the uncertainty to exist."\n12.\nRecipient acknowledges that, due to the unique nature of Proprietary Information, there can be\nno adequate remedy at law for Recipient’s unauthorized use or disclosure of Proprietary Information in\nbreach of this Agreement and that such breach will cause immediate and irreparable harm to Cubic. Upon\nany such breach or any threat thereof by Recipient, Cubic shall be entitled to appropriate equitable relief\nfrom any court of competent jurisdiction (without being required to post a bond or other security) and shall\nbe indemnified by Recipient from any loss or harm (including, without limitation, attorneys’ fees) in\nconnection with any breach or enforcement of Recipient’s obligations under this Agreement or the\nunauthorized use or disclosure of any such Proprietary Information. Recipient consents to and submits to\nthe jurisdiction of any state or federal court located within the County of San Diego, California, if Cubic\nelects to bring such an action for equitable relief in any such court.\n13.\nThis Agreement may be executed in counterparts and transmitted by facsimile, each of which,\nwhen so executed and transmitted, shall be deemed to be an original, and all such counterparts together\nshall constitute one and the same document.\n14.\nThe obligations in this Agreement supplement and do not supersede the terms and conditions in\nthe Employee Inventions And Secrecy Agreement executed by Recipient when he was an employee of\nCubic. This Agreement may be modified only by a written amendment executed by duly authorized\nrepresentatives of each Party.\n(signatures provided on following page)\nJohn D. Thomas\nJuly 11, 2017\nPage 19 of 19\nIN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized\nrepresentatives as of the day and year first above written.\nCUBIC CORPORATION\nJOHN D. THOMAS\nBy: /s/ James R. Edwards\nSigned:/s/ John D. Thomas\nPrint Name: James R. Edwards\nDate: July 11, 2017\nTitle: Sr. Vice President, General Counsel & Secretary\nDate: July 11, 2017 4fd03a6d34e6e06bc0b553aba1aff30f.pdf effective_date jurisdiction party term EX-10 .2 3 a182849_ex10-2 .htm FORM OF CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\nExhibit 10.2\nFORM OF\nCONFIDENTIALITY AND NONCOMPETITION AGREEMENT\nAgreement made December 28, 2018 between Flexsteel Industries, Inc., a corporation organized and existing under the laws of Minnesota, with\nits principal office located at 385 Bell Street, Dubuque, Iowa (“Flexsteel”) on behalf of itself and its subsidiaries and Jerald K. Dittmer\n(“Employee”) (collectively referred to as the “Parties”).\nRECITALS\nFlexsteel has employed Employee to devote his/her full time, attention, and energies to the business of Flexsteel and to use his/her best efforts,\nskill, and abilities in performing the specific duties of such employment, and Employee shall not, without prior written consent of Flexsteel,\neither directly or indirectly, engage in any other occupation, profession or business.\nAs a result of the employment by Flexsteel, Employee will have access to information not generally known to the general public or in the\nindustry(s) in which Flexsteel is or may become engaged about Flexsteel’s business/functional strategies, product design and development),\nprocesses, customers, services, suppliers, pricing policies, marketing strategies and related matters. In addition, Flexsteel may provide training to\nEmployee in relation to these areas. It is the desire of Flexsteel and Employee that all such training and information be and remain confidential.\nIn consideration of the matters described above, and of the mutual benefits and obligations set forth in this Agreement, the Parties agree as\nfollows:\nSECTION ONE: CONFIDENTIALITY\nA. Nondisclosure. Employee shall not, during or after the term of this Agreement, directly or indirectly, use, disseminate, or disclose to\nany person (including other employees of Flexsteel not having a need to know or authority to know), firm or other business entity for\nany purpose whatsoever, any information not generally known in the industry in which Flexsteel is or may be engaged which was\ndisclosed to Employee or known by Employee as a result of or through his/her employment by Flexsteel. This includes information\nregarding Flexsteel’s employee’s products, processes, customers, services, suppliers, pricing policies and related matters, and also\nincludes information relating to research, development, inventions, manufacture, purchasing, accounting, engineering, marketing,\nmerchandising, and selling.\nB. Confidential Relationship. Employee shall hold in a fiduciary capacity for the benefit of Flexsteel all information in paragraph A\nabove, along with any and all inventions, discoveries, concepts, ideas, improvements, ideas, improvements or know-how, discovered or\ndeveloped by Employee, solely or jointly with other employees, during the term of this Agreement, which may be directly or indirectly\nuseful in or related to the business of Flexsteel or its subsidiaries, or may be within the scope of its or their research or development\nwork.\nC. Customer Lists. Employee shall, at the time of and during employment, furnish a complete list of all the correct names and places of\nbusinesses of all its customers, immediately notify Flexsteel of the name and address of any new customer, and report all changes in\nlocation of old customers, so that upon the termination of employment, Flexsteel will have a complete list of the correct names and\naddresses of customer with whom Employee has dealt.\nD. Return of Documents. To protect the interests of Flexsteel, Employee agrees that, during or after the termination of Employee’s\nemployment by Flexsteel, all documents, records, notebooks, and similar repositories containing such information described in\nparagraphs A, B and C above, including copies of such items, then in Employee’s possession or work area, whether prepared by\nEmployee or others, are the property of Flexsteel and shall be returned to Flexsteel upon Flexsteel’s request.\nSECTION TWO: NON-DISPARAGEMENT\nThe Employee agrees and covenants that the Employee will not at any time make, publish, or communicate to any person or entity or in any\npublic forum any defamatory or disparaging remarks, comments, or statements concerning Flexsteel or its businesses, or its employees, officers\nand existing and prospective customers, suppliers and other associated third parties.\nThis section does not, in any way, restrict or impede the Employee from exercising protected rights to the extent that such rights cannot be\nwaived by agreement, including but not limited to Employee’s section 7 rights under the NLRA, or from complying with any applicable law or\nagency, provided that such compliance does not exceed that required by the law, regulation or order. The employee shall promptly provide such\nwritten notices of such order to Flexsteel’s legal department.\nSECTION THREE: NONCOMPETITION\nA. Employee Conduct with Respect to Competitors. During the term of Employee’s employment by Flexsteel and for twelve (12)\nmonths after termination of such employment, Employee agrees that Employee will not, without the prior written consent of Flexsteel,\ndirectly or indirectly, whether as an employee, officer, director, independent contractor, consultant, stockholder, partner, or otherwise,\nengage in or assist others to engage in or have any interest in any business which competes with Flexsteel in any geographic area in\nwhich Flexsteel markets or has marketed its products during the year preceding termination.\nB. Solicitation of Employees. Employee agrees that during the term of Employee’s employment and for twelve (12) months after the\ntermination of such employment, Employee will not induce or attempt to induce any person who is an employee of Flexsteel to leave\nthe employ of Flexsteel and engage in any business which competes with Flexsteel.\nC. Maximum Restrictions of Time, Scope, and Geographic Area Intended. The Parties agree and acknowledge that the time, scope and\ngeographic area and other provisions of this Agreement are reasonable under these circumstances. Employee further agrees that if,\ndespite the express agreement of the parties to this Agreement, a court is expressly authorized to modify any unenforceable provision of\nthis Agreement in lieu of severing the unenforceable provision from this Agreement in its entirety, whether by rewriting the offending\nprovision, or deleting any or all of the offending provision, adding additional language to this Agreement, or by making any other\nmodifications as it deems warranted to carry out the intent and agreement of the Parties as embodied herein to the maximum extent as\npermitted by law. The Parties expressly agree that this Agreement as so modified by the court shall be binding upon and enforceable\nagainst each of them.\n2\nSECTION FOUR: BREACH OF AGREEMENT\nA. Remedies. Employee agrees that violating Section One of this Agreement at any time, including during litigation, will produce damages\nand injury to Flexsteel. In the event of the breach or, or threatened breach by Employee of Section One of this Agreement, Flexsteel\nshall be entitled to seek injunctive relief, both preliminary and permanent, enjoining and restraining such breach or threatened breach.\nSuch remedies shall be in addition to all other remedies available to Flexsteel in law or in equity, including by not limited to Flexsteel’s\nright to recover from Employee any and all damages that may be sustained as a result of Employee’s breach.\nB. Agreement Survives Termination. All rights of the Parties pursuant to this Agreement shall survive any termination.\nC. Choice of Law. The validity, interpretation, and performance of this Agreement shall be controlled and construed under the laws of\nIowa.\nD. Attorney’s Fees. If an attorney shall be retained to interpret or enforce the provisions of this Agreement, the prevailing party shall be\nentitled to reasonable attorney fees, including any such fees set by the trial or appellate court upon trial or appeal.\nSECTION FIVE: MISCELLANEOUS\nA. Entire Agreement. This Agreement contains all the understandings and representations between Employee and Flexsteel pertaining to\nthe subject matter hereof and supersedes all prior and contemporaneous understandings, agreements and representations, both oral and\nwritten, with respect to such subject matter.\nB. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken\ntogether shall constitute one and the same instrument. Delivery of an executed counterpart’s signature page of this Agreement by\nfacsimile, email in portable document format (.pdf), or by any other electronic means intended to preserve the original graphic and\npictorial appearance of a document, has the same effect as delivery of an executed original of this Agreement.\nNothing in this Agreement shall be construed to in any way terminate, supersede, undermine, or otherwise modify the “at-will”\nstatus of the employment relationship between Flexsteel and the Employee, pursuant to which either Flexsteel or the Employee may\nterminate the employment relationship at any time, with or without cause, and with or without notice.\nEMPLOYEE\nFLEXSTEEL INDUSTRIES, INC.\nBy:\nBy:\nName: Jerald K. Dittmer\nName: Thomas M. Levine\nTitle: President/CEO\nTitle: Chair of the Board\nDate: December 28, 2018\nDate: December 28, 2018\n3 EX-10.2 3 a182849_ex10-2.htm FORM OF CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\nExhibit 10.2\nFORM OF\nCONFIDENTIALITY AND NONCOMPETITION AGREEMENT\nAgreement made December 28, 2018 between Flexsteel Industries, Inc., a corporation organized and existing under the laws of Minnesota, with\nits principal office located at 385 Bell Street, Dubuque, Iowa (“Flexsteel”) on behalf of itself and its subsidiaries and Jerald K. Dittmer\n(“Employee”) (collectively referred to as the “Parties™).\nRECITALS\nFlexsteel has employed Employee to devote his/her full time, attention, and energies to the business of Flexsteel and to use his/her best efforts,\nskill, and abilities in performing the specific duties of such employment, and Employee shall not, without prior written consent of Flexsteel,\neither directly or indirectly, engage in any other occupation, profession or business.\nAs a result of the employment by Flexsteel, Employee will have access to information not generally known to the general public or in the\nindustry(s) in which Flexsteel is or may become engaged about Flexsteel’s business/functional strategies, product design and development),\nprocesses, customers, services, suppliers, pricing policies, marketing strategies and related matters. In addition, Flexsteel may provide training to\nEmployee in relation to these areas. It is the desire of Flexsteel and Employee that all such training and information be and remain confidential.\nIn consideration of the matters described above, and of the mutual benefits and obligations set forth in this Agreement, the Parties agree as\nfollows:\nSECTION ONE: CONFIDENTIALITY\nA. Nondisclosure. Employee shall not, during or after the term of this Agreement, directly or indirectly, use, disseminate, or disclose to\nany person (including other employees of Flexsteel not having a need to know or authority to know), firm or other business entity for\nany purpose whatsoever, any information not generally known in the industry in which Flexsteel is or may be engaged which was\ndisclosed to Employee or known by Employee as a result of or through his/her employment by Flexsteel. This includes information\nregarding Flexsteel’s employee’s products, processes, customers, services, suppliers, pricing policies and related matters, and also\nincludes information relating to research, development, inventions, manufacture, purchasing, accounting, engineering, marketing,\nmerchandising, and selling.\nB. Confidential Relationship. Employee shall hold in a fiduciary capacity for the benefit of Flexsteel all information in paragraph A\nabove, along with any and all inventions, discoveries, concepts, ideas, improvements, ideas, improvements or know-how, discovered or\ndeveloped by Employee, solely or jointly with other employees, during the term of this Agreement, which may be directly or indirectly\nuseful in or related to the business of Flexsteel or its subsidiaries, or may be within the scope of its or their research or development\nwork.\nC. Customer Lists. Employee shall, at the time of and during employment, furnish a complete list of all the correct names and places of\nbusinesses of all its customers, immediately notify Flexsteel of the name and address of any new customer, and report all changes in\nlocation of old customers, so that upon the termination of employment, Flexsteel will have a complete list of the correct names and\naddresses of customer with whom Employee has dealt.\n \nD. Return of Documents. To protect the interests of Flexsteel, Employee agrees that, during or after the termination of Employee’s\nemployment by Flexsteel, all documents, records, notebooks, and similar repositories containing such information described in\nparagraphs A, B and C above, including copies of such items, then in Employee’s possession or work area, whether prepared by\nEmployee or others, are the property of Flexsteel and shall be returned to Flexsteel upon Flexsteel’s request.\nSECTION TWO: NON-DISPARAGEMENT\nThe Employee agrees and covenants that the Employee will not at any time make, publish, or communicate to any person or entity or in any\npublic forum any defamatory or disparaging remarks, comments, or statements concerning Flexsteel or its businesses, or its employees, officers\nand existing and prospective customers, suppliers and other associated third parties.\nThis section does not, in any way, restrict or impede the Employee from exercising protected rights to the extent that such rights cannot be\nwaived by agreement, including but not limited to Employee’s section 7 rights under the NLRA, or from complying with any applicable law or\nagency, provided that such compliance does not exceed that required by the law, regulation or order. The employee shall promptly provide such\nwritten notices of such order to Flexsteel’s legal department.\nSECTION THREE: NONCOMPETITION\nmonths after termination of such employment, Employee agrees that Employee will not, without the prior written consent of Flexsteel,\ndirectly or indirectly, whether as an employee, officer, director, independent contractor, consultant, stockholder, partner, or otherwise,\nengage in or assist others to engage in or have any interest in any business which competes with Flexsteel in any geographic area in\nwhich Flexsteel markets or has marketed its products during the year preceding termination.\nB. Solicitation of Employees. Employee agrees that during the term of Employee’s employment and for twelve (12) months after the\ntermination of such employment, Employee will not induce or attempt to induce any person who is an employee of Flexsteel to leave\nthe employ of Flexsteel and engage in any business which competes with Flexsteel.\ngeographic area and other provisions of this Agreement are reasonable under these circumstances. Employee further agrees that if,\ndespite the express agreement of the parties to this Agreement, a court is expressly authorized to modify any unenforceable provision of\nthis Agreement in lieu of severing the unenforceable provision from this Agreement in its entirety, whether by rewriting the offending\nprovision, or deleting any or all of the offending provision, adding additional language to this Agreement, or by making any other\nmodifications as it deems warranted to carry out the intent and agreement of the Parties as embodied herein to the maximum extent as\npermitted by law. The Parties expressly agree that this Agreement as so modified by the court shall be binding upon and enforceable\nagainst each of them.\n \n>\nSECTION FOUR: BREACH OF AGREEMENT\nA. Remedies. Employee agrees that violating Section One of this Agreement at any time, including during litigation, will produce damages\nand injury to Flexsteel. In the event of the breach or, or threatened breach by Employee of Section One of this Agreement, Flexsteel\nshall be entitled to seek injunctive relief, both preliminary and permanent, enjoining and restraining such breach or threatened breach.\nSuch remedies shall be in addition to all other remedies available to Flexsteel in law or in equity, including by not limited to Flexsteel’s\nright to recover from Employee any and all damages that may be sustained as a result of Employee’s breach.\nB. Agreement Survives Termination. All rights of the Parties pursuant to this Agreement shall survive any termination.\nC. Choice of Law. The validity, interpretation, and performance of this Agreement shall be controlled and construed under the laws of\nIowa.\nD. Attorney’s Fees. If an attorney shall be retained to interpret or enforce the provisions of this Agreement, the prevailing party shall be\nentitled to reasonable attorney fees, including any such fees set by the trial or appellate court upon trial or appeal.\n \nSECTION FIVE: MISCELLANEOUS\nA. Entire Agreement. This Agreement contains all the understandings and representations between Employee and Flexsteel pertaining to\nthe subject matter hereof and supersedes all prior and contemporaneous understandings, agreements and representations, both oral and\nwritten, with respect to such subject matter.\nB. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken\ntogether shall constitute one and the same instrument. Delivery of an executed counterpart’s signature page of this Agreement by\nfacsimile, email in portable document format (.pdf), or by any other electronic means intended to preserve the original graphic and\npictorial appearance of a document, has the same effect as delivery of an executed original of this Agreement.\nNothing in this Agreement shall be construed to in any way terminate, supersede, undermine, or otherwise modify the “at-will”\nstatus of the employment relationship between Flexsteel and the Employee, pursuant to which either Flexsteel or the Employee may\nterminate the employment relationship at any time, with or without cause, and with or without notice.\nEMPLOYEE FLEXSTEEL INDUSTRIES, INC.\nBy: By:\nName: Jerald K. Dittmer Name: Thomas M. Levine\nTitle: President/CEO Title: Chair of the Board\nDate: December 28, 2018 Date: December 28, 2018\n EX-10.2 3 a182849_ex10-2.htm FORM OF CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\nExhibit 10.2\nFORM OF\nCONFIDENTIALITY AND NONCOMPETITION AGREEMENT\nAgreement made December 28, 2018 between Flexsteel Industries, Inc., a corporation organized and existing under the laws of Minnesota, with\nits principal office located at 385 Bell Street, Dubuque, Iowa ("Flexsteel") on behalf of itself and its subsidiaries and Jerald K. Dittmer\n("Employee") (collectively referred to as the "Parties").\nRECITALS\nFlexsteel has employed Employee to devote his/her full time, attention, and energies to the business of Flexsteel and to use his/her best efforts,\nskill, and abilities in performing the specific duties of such employment, and Employee shall not, without prior written consent of Flexsteel,\neither directly or indirectly, engage in any other occupation, profession or business.\nAs a result of the employment by Flexsteel, Employee will have access to information not generally known to the general public or in\nthe\nindustry(s) in which Flexsteel is or may become engaged about Flexsteel's business/functional strategies, product design and development),\nprocesses, customers, services, suppliers, pricing policies, marketing strategies and related matters. In addition, Flexsteel may provide training to\nEmployee in relation to these areas. It is the desire of Flexsteel and Employee that all such training and information be and remain confidential.\nIn consideration of the matters described above, and of the mutual benefits and obligations set forth in this Agreement, the Parties agree as\nfollows:\nSECTION ONE: CONFIDENTIALITY\nA. Nondisclosure. Employee shall not, during or after the term of this Agreement, directly or indirectly, use, disseminate, or disclose to\nany person (including other employees of Flexsteel not having a need to know or authority to know), firm or other business entity for\nany purpose whatsoever, any information not generally known in the industry in which Flexsteel is or may be engaged which was\ndisclosed to Employee or known by Employee as a result of or through his/her employment by Flexsteel. This includes information\nregarding Flexsteel's employee's products, processes, customers, services, suppliers, pricing policies and related matters, and also\nincludes information relating to research, development, inventions, manufacture, purchasing, accounting, engineering, marketing,\nmerchandising, and selling.\nB. Confidential Relationship. Employee shall hold in a fiduciary capacity for the benefit of Flexsteel all information in paragraph A\nabove, along with any and all inventions, discoveries, concepts, ideas, improvements, ideas, improvements or know-how, discovered or\ndeveloped by Employee, solely or jointly with other employees, during the term of this Agreement, which may be directly or indirectly\nuseful in or related to the business of Flexsteel or its subsidiaries, or may be within the scope of its or their research or development\nwork.\nC.\nCustomer Lists. Employee shall, at the time of and during employment, furnish a complete list of all the correct names and places of\nbusinesses of all its customers, immediately notify Flexsteel of the name and address of any new customer, and report all changes in\nlocation of old customers, so that upon the termination of employment, Flexsteel will have a complete list of the correct names and\naddresses of customer with whom Employee has dealt.\nD.\nReturn of Documents. To protect the interests of Flexsteel, Employee agrees that, during or after the termination of Employee's\nemployment by Flexsteel, all documents, records, notebooks, and similar repositories containing such information described in\nparagraphs A, B and C above, including copies of such items, then in Employee's possession or work area, whether prepared by\nEmployee or others, are the property of Flexsteel and shall be returned to Flexsteel upon Flexsteel's request.\nSECTION TWO: NON-DISPARAGEMENT\nThe Employee agrees and covenants that the Employee will not at any time make, publish, or communicate to any person or entity or in any\npublic forum any defamatory or disparaging remarks, comments, or statements concerning Flexsteel or its businesses, or its employees, officers\nand existing and prospective customers, suppliers and other associated third parties.\nThis section does not, in any way, restrict or impede the Employee from exercising protected rights to the extent that such rights cannot be\nwaived by agreement, including but not limited to Employee's section 7 rights under the NLRA, or from complying with any applicable law or\nagency, provided that such compliance does not exceed that required by the law, regulation or order. The employee shall promptly provide such\nwritten notices of such order to Flexsteel's legal department.\nSECTION THREE: NONCOMPETITION\nA.\nEmployee Conduct with Respect to Competitors. During the term of Employee's employment by Flexsteel and for twelve (12)\nmonths after termination of such employment, Employee agrees that Employee will not, without the prior written consent of Flexsteel,\ndirectly or indirectly, whether as an employee, officer, director, independent contractor, consultant, stockholder, partner, or otherwise,\nengage in or assist others to engage in or have any interest in any business which competes with Flexsteel in any geographic area in\nwhich Flexsteel markets or has marketed its products during the year preceding termination.\nB.\nSolicitation of Employees. Employee agrees that during the term of Employee's employment and for twelve (12) months after the\ntermination of such employment, Employee will not induce or attempt to induce any person who is an employee of Flexsteel to leave\nthe employ of Flexsteel and engage in any business which competes with Flexsteel.\nC.\nMaximum Restrictions of Time, Scope, and Geographic Area Intended. The Parties agree and acknowledge that the time, scope and\ngeographic\narea\nand\nother\nprovisions\nof\nthis\nAgreement\nare\nreasonable\nunder\nthese\ncircumstances.\nEmployee\nfurther\nagrees\nthat\nif,\ndespite the express agreement of the parties to this Agreement, a court is expressly authorized to modify any unenforceable provision of\nthis Agreement in lieu of severing the unenforceable provision from this Agreement in its entirety, whether by rewriting the offending\nprovision, or deleting any or all of the offending provision, adding additional language to this Agreement, or by making any other\nmodifications as it deems warranted to carry out the intent and agreement of the Parties as embodied herein to the maximum extent as\npermitted by law. The Parties expressly agree that this Agreement as so modified by the court shall be binding upon and enforceable\nagainst each of them.\n2\nSECTION FOUR: BREACH OF AGREEMENT\nA.\nRemedies. Employee agrees that violating Section One of this Agreement at any time, including during litigation, will produce damages\nand injury to Flexsteel. In the event of the breach or, or threatened breach by Employee of Section One of this Agreement, Flexsteel\nshall\nbe entitled to seek injunctive relief, both preliminary and permanent, enjoining and restraining such breach or threatened breach.\nSuch remedies shall be in addition to all other remedies available to Flexsteel in law or in equity, including by not limited to Flexsteel's\nright to recover from Employee any and all damages that may be sustained as a result of Employee's breach.\nB. Agreement Survives Termination. All rights of the Parties pursuant to this Agreement shall survive any termination.\nC. Choice of Law. The validity, interpretation, and performance of this Agreement shall be controlled and construed under the laws of\nIowa.\nD.\nAttorney's Fees. If an attorney shall be retained to interpret or enforce the provisions of this Agreement, the prevailing party shall be\nentitled to reasonable attorney fees, including any such fees set by the trial or appellate court upon trial or appeal.\nSECTION FIVE: MISCELLANEOUS\nA. Entire Agreement. This Agreement contains all the understandings and representations between Employee and Flexsteel pertaining to\nthe subject matter hereof and supersedes all prior and contemporaneous understandings, agreements and representations, both oral and\nwritten, with respect to such subject matter.\nB. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken\ntogether shall constitute one and the same instrument. Delivery of an executed counterpart's signature page of this Agreement by\nfacsimile, email in portable document format (.pdf), or by any other electronic means intended to preserve the original graphic and\npictorial appearance of a document, has the same effect as delivery of an executed original of this Agreement.\nNothing in this Agreement shall be construed to in any way terminate, supersede, undermine, or otherwise modify the "at-will"\nstatus of the employment relationship between Flexsteel and the Employee, pursuant to which either Flexsteel or the Employee may\nterminate the employment relationship at any time, with or without cause, and with or without notice.\nEMPLOYEE\nFLEXSTEEL INDUSTRIES, INC.\nBy:\nBy:\nName: Jerald K. Dittmer\nName: Thomas M. Levine\nTitle: President/CEO\nTitle: Chair of the Board\nDate: December 28, 2018\nDate: December 28, 2018\n3 EX-10 .2 3 a182849_ex10-2 .htm FORM OF CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\nExhibit 10.2\nFORM OF\nCONFIDENTIALITY AND NONCOMPETITION AGREEMENT\nAgreement made December 28, 2018 between Flexsteel Industries, Inc., a corporation organized and existing under the laws of Minnesota, with\nits principal office located at 385 Bell Street, Dubuque, Iowa (“Flexsteel”) on behalf of itself and its subsidiaries and Jerald K. Dittmer\n(“Employee”) (collectively referred to as the “Parties”).\nRECITALS\nFlexsteel has employed Employee to devote his/her full time, attention, and energies to the business of Flexsteel and to use his/her best efforts,\nskill, and abilities in performing the specific duties of such employment, and Employee shall not, without prior written consent of Flexsteel,\neither directly or indirectly, engage in any other occupation, profession or business.\nAs a result of the employment by Flexsteel, Employee will have access to information not generally known to the general public or in the\nindustry(s) in which Flexsteel is or may become engaged about Flexsteel’s business/functional strategies, product design and development),\nprocesses, customers, services, suppliers, pricing policies, marketing strategies and related matters. In addition, Flexsteel may provide training to\nEmployee in relation to these areas. It is the desire of Flexsteel and Employee that all such training and information be and remain confidential.\nIn consideration of the matters described above, and of the mutual benefits and obligations set forth in this Agreement, the Parties agree as\nfollows:\nSECTION ONE: CONFIDENTIALITY\nA. Nondisclosure. Employee shall not, during or after the term of this Agreement, directly or indirectly, use, disseminate, or disclose to\nany person (including other employees of Flexsteel not having a need to know or authority to know), firm or other business entity for\nany purpose whatsoever, any information not generally known in the industry in which Flexsteel is or may be engaged which was\ndisclosed to Employee or known by Employee as a result of or through his/her employment by Flexsteel. This includes information\nregarding Flexsteel’s employee’s products, processes, customers, services, suppliers, pricing policies and related matters, and also\nincludes information relating to research, development, inventions, manufacture, purchasing, accounting, engineering, marketing,\nmerchandising, and selling.\nB. Confidential Relationship. Employee shall hold in a fiduciary capacity for the benefit of Flexsteel all information in paragraph A\nabove, along with any and all inventions, discoveries, concepts, ideas, improvements, ideas, improvements or know-how, discovered or\ndeveloped by Employee, solely or jointly with other employees, during the term of this Agreement, which may be directly or indirectly\nuseful in or related to the business of Flexsteel or its subsidiaries, or may be within the scope of its or their research or development\nwork.\nC. Customer Lists. Employee shall, at the time of and during employment, furnish a complete list of all the correct names and places of\nbusinesses of all its customers, immediately notify Flexsteel of the name and address of any new customer, and report all changes in\nlocation of old customers, so that upon the termination of employment, Flexsteel will have a complete list of the correct names and\naddresses of customer with whom Employee has dealt.\nD. Return of Documents. To protect the interests of Flexsteel, Employee agrees that, during or after the termination of Employee’s\nemployment by Flexsteel, all documents, records, notebooks, and similar repositories containing such information described in\nparagraphs A, B and C above, including copies of such items, then in Employee’s possession or work area, whether prepared by\nEmployee or others, are the property of Flexsteel and shall be returned to Flexsteel upon Flexsteel’s request.\nSECTION TWO: NON-DISPARAGEMENT\nThe Employee agrees and covenants that the Employee will not at any time make, publish, or communicate to any person or entity or in any\npublic forum any defamatory or disparaging remarks, comments, or statements concerning Flexsteel or its businesses, or its employees, officers\nand existing and prospective customers, suppliers and other associated third parties.\nThis section does not, in any way, restrict or impede the Employee from exercising protected rights to the extent that such rights cannot be\nwaived by agreement, including but not limited to Employee’s section 7 rights under the NLRA, or from complying with any applicable law or\nagency, provided that such compliance does not exceed that required by the law, regulation or order. The employee shall promptly provide such\nwritten notices of such order to Flexsteel’s legal department.\nSECTION THREE: NONCOMPETITION\nA. Employee Conduct with Respect to Competitors. During the term of Employee’s employment by Flexsteel and for twelve (12)\nmonths after termination of such employment, Employee agrees that Employee will not, without the prior written consent of Flexsteel,\ndirectly or indirectly, whether as an employee, officer, director, independent contractor, consultant, stockholder, partner, or otherwise,\nengage in or assist others to engage in or have any interest in any business which competes with Flexsteel in any geographic area in\nwhich Flexsteel markets or has marketed its products during the year preceding termination.\nB. Solicitation of Employees. Employee agrees that during the term of Employee’s employment and for twelve (12) months after the\ntermination of such employment, Employee will not induce or attempt to induce any person who is an employee of Flexsteel to leave\nthe employ of Flexsteel and engage in any business which competes with Flexsteel.\nC. Maximum Restrictions of Time, Scope, and Geographic Area Intended. The Parties agree and acknowledge that the time, scope and\ngeographic area and other provisions of this Agreement are reasonable under these circumstances. Employee further agrees that if,\ndespite the express agreement of the parties to this Agreement, a court is expressly authorized to modify any unenforceable provision of\nthis Agreement in lieu of severing the unenforceable provision from this Agreement in its entirety, whether by rewriting the offending\nprovision, or deleting any or all of the offending provision, adding additional language to this Agreement, or by making any other\nmodifications as it deems warranted to carry out the intent and agreement of the Parties as embodied herein to the maximum extent as\npermitted by law. The Parties expressly agree that this Agreement as so modified by the court shall be binding upon and enforceable\nagainst each of them.\n2\nSECTION FOUR: BREACH OF AGREEMENT\nA. Remedies. Employee agrees that violating Section One of this Agreement at any time, including during litigation, will produce damages\nand injury to Flexsteel. In the event of the breach or, or threatened breach by Employee of Section One of this Agreement, Flexsteel\nshall be entitled to seek injunctive relief, both preliminary and permanent, enjoining and restraining such breach or threatened breach.\nSuch remedies shall be in addition to all other remedies available to Flexsteel in law or in equity, including by not limited to Flexsteel’s\nright to recover from Employee any and all damages that may be sustained as a result of Employee’s breach.\nB. Agreement Survives Termination. All rights of the Parties pursuant to this Agreement shall survive any termination.\nC. Choice of Law. The validity, interpretation, and performance of this Agreement shall be controlled and construed under the laws of\nIowa.\nD. Attorney’s Fees. If an attorney shall be retained to interpret or enforce the provisions of this Agreement, the prevailing party shall be\nentitled to reasonable attorney fees, including any such fees set by the trial or appellate court upon trial or appeal.\nSECTION FIVE: MISCELLANEOUS\nA. Entire Agreement. This Agreement contains all the understandings and representations between Employee and Flexsteel pertaining to\nthe subject matter hereof and supersedes all prior and contemporaneous understandings, agreements and representations, both oral and\nwritten, with respect to such subject matter.\nB. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken\ntogether shall constitute one and the same instrument. Delivery of an executed counterpart’s signature page of this Agreement by\nfacsimile, email in portable document format (.pdf), or by any other electronic means intended to preserve the original graphic and\npictorial appearance of a document, has the same effect as delivery of an executed original of this Agreement.\nNothing in this Agreement shall be construed to in any way terminate, supersede, undermine, or otherwise modify the “at-will”\nstatus of the employment relationship between Flexsteel and the Employee, pursuant to which either Flexsteel or the Employee may\nterminate the employment relationship at any time, with or without cause, and with or without notice.\nEMPLOYEE\nFLEXSTEEL INDUSTRIES, INC.\nBy:\nBy:\nName: Jerald K. Dittmer\nName: Thomas M. Levine\nTitle: President/CEO\nTitle: Chair of the Board\nDate: December 28, 2018\nDate: December 28, 2018\n3 5089dc0cb013e46c3f9e21a2531504ed.pdf effective_date jurisdiction party term EX-99.10 14 d356019dex9910.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit 99.10\nLOGO\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (this “Agreement”) is dated as of March 31, 2012 between Integrated\nDevice Technology, Inc., a Delaware corporation (“IDT”), and PLX Technology, Inc., a Delaware corporation (“PLX”).\nIDT and PLX may work together to evaluate a possible strategic transaction involving IDT and PLX (“Proposed\nTransaction”). As used in this Agreement, the party disclosing Confidential Information, as defined below, is the\n“Disclosing Party” and the party receiving the Confidential Information is the “Recipient”.\n1. During the evaluation of the Proposed Transaction, the Recipient agrees to treat confidentially information that is\nfurnished by either the Disclosing Party or its Representatives (as defined below) to the Recipient or the\nRecipient’s subsidiaries or its or their respective directors, officers, partners, employees, agents, representatives,\nincluding, without limitation, financial advisors, counsel, accountants, experts, and consultants (collectively,\n“Representatives”) in connection with the Proposed Transaction, together with notes, analyses, compilations,\nstudies or other documents prepared by the Recipient or by its Representatives to the extent they contain or\notherwise reflect such information or the Disclosing Party’s review of, or interest in, the Recipient (“Confidential\nInformation”).\n2. The Confidential Information will be used solely for the purposes of evaluating the Proposed Transaction,\nprovided, however, that the Recipient may disclose any Confidential Information to its Representatives who need\nto know such information for the purpose of evaluating the Proposed Transaction. Prior to disclosing the\nConfidential Information to any Representative, however, the Recipient shall inform the Representative of the\nconfidential nature of such information and undertake reasonable efforts to cause them to treat such information on\na confidential basis. The Recipient shall be responsible for the breach of this Agreement by its Representatives that\nhave not separately signed a non-disclosure agreement with the Disclosing Party or any of its Representatives, and\nshall take all reasonable measures to restrain its Representatives from unauthorized disclosure of the Confidential\nInformation. The Disclosing Party and its Representatives shall otherwise have no recourse against any of the\nRecipient’s Representatives that have not separately signed a non-disclosure agreement with the Disclosing Party\nor any of its Representatives.\n3. The public disclosure of the Proposed Transaction could have a material adverse effect on IDT’s and PLX’s\nbusinesses if, for any reason, a definitive agreement with respect to such transaction is not consummated.\nAccordingly, each party agrees that without the prior written consent of the other, it will not, and it will direct its\nRepresentatives not to, disclose to any person, other than its Representatives, either the fact that discussions or\nnegotiations are taking place concerning the Proposed Transaction between IDT and PLX or any of the terms and\nconditions with respect to the Proposed Transaction and no Confidential Information will be provided to such\npersons. The term “person” shall be broadly interpreted\nMarch 31, 2012\nto include, without limitation, any corporation, governmental agency or body, partnership or individual.\n4. The parties hereby acknowledge that they are aware that the United States securities laws prohibit any person who\nhas received from an issuer material, non-public information of the type which is the subject of this Agreement\nfrom purchasing or selling securities of such issuer or from communicating such information to any other person\nunder circumstances in which it is reasonably foreseeable that such person will purchase or sell such securities.\n5. Confidential Information disclosed hereunder shall at all times remain, as between the parties, the property of the\nDisclosing Party. No license under any trade secrets, copyrights, or other rights is granted by this Agreement or\nany disclosure of Confidential Information hereunder.\n6. Upon the Disclosing Party’s written request, the Recipient shall promptly destroy or return to the Disclosing Party\nall written Confidential Information (whether prepared by the Disclosing party or its Representatives) and will not\nretain any copies, extracts or other reproductions in whole or in part of such written materials except that (i) one\ncopy of each electronic version of such materials may be retained by Recipient and its Representatives in their\narchives pursuant to such party’s standard data backup and disaster recovery plans and (ii) Recipient’s outside legal\ncounsel and accountants may retain one hard copy of such materials in its archives solely for regulatory or\ncorporate records retention policy compliance and for dispute resolution; provided, however, that any Confidential\nInformation contained in such format may not be used for any other purpose and that all obligations contained\nherein shall, with respect to any Confidential Information so retained, survive any termination of this Agreement.\nReturn and/or destruction of Confidential Information and copies, extracts or other reproductions thereof and\ndocuments, memoranda, notes, and other writings to the extent that they contain Confidential Information shall be\ncertified in writing to the Disclosing Party by an authorized officer of the Recipient supervising such destruction\nupon the Disclosing Party’s written request.\n7. Nothing in this Agreement shall prohibit or limit the Recipient’s use of information (including, but not limited to,\nideas, concepts, know-how, techniques, and methodologies) (i) that was known to Recipient or any of its\nRepresentatives before disclosure by the Disclosing Party or its Representatives, (ii) that was or becomes available\nto the Recipient or any of its Representatives from a source other than the Disclosing Party or its Representatives,\nprovided that such source is not known by the Recipient to be prohibited from disclosing such information by a\ncontractual, legal, or fiduciary obligation to the Disclosing Party or its Representatives, (iii) which is or becomes\npublicly available other than as a result of a disclosure by the Recipient or its Representatives in breach of this\nAgreement or (iv) which is independently developed by Recipient or any of its Representatives without reference\nto the Disclosing Party’s Confidential Information.\n8. During the course of each party’s evaluation of the Proposed Transaction, all inquiries and other communications\nare to be made only to directors, officers, employees and\nPage2of5\nMarch 31, 2012\nRepresentatives of the other parties who have been specifically authorized to discuss the Proposed Transaction. A\nparty shall not directly or indirectly contact or communicate with any shareholder, director, officer, employee or\nRepresentative of a party without the express written consent of the other party.\n9. In consideration of the Confidential Information being furnished hereby, each party agrees that, without the prior\nwritten consent of the Chief Financial Officer or General Counsel of the other party, for a period of twelve\n(12) months from the date of this Agreement neither it nor any of its affiliates will, either directly or indirectly,\nsolicit for employment, or otherwise contract for the services of (or cause or seek to cause to leave the employ of\nother party or any of its affiliates) any person who is now employed or engaged (either as an employee or\nconsultant) or becomes employed or engaged during the term of this Agreement by the other party or its affiliates,\nother than persons whose employment or engagement shall have been terminated at least six (6) months prior to\nthe date of such solicitation, employment or other contractual arrangements. The prohibition contained in this\nparagraph does not extend to general solicitations of employment by a party not specifically directed towards the\nother party’s employees or consultants including but not limited to (i) advertising on the internet or in a newspaper\nor periodical of general circulation, (ii) an employee of an executive search firm acting on behalf of the hiring\ncompany where the hiring company did not instruct or encourage such solicitation, (iii) a general hiring program\nconducted by the hiring party in the ordinary course of business (such as a job fair or the like), or (iv) a response\nby the hiring party if the employee approaches the hiring party on an unsolicited basis.\n10. In the event that a Recipient or its Representative, as the case may be, is requested in any judicial or administrative\nproceeding to disclose any Confidential Information, the Recipient or its Representative will give the Disclosing\nParty prompt notice of such request so that the Disclosing Party may seek an appropriate protective order or other\nprotective remedy. If, in the absence of a protective order (or other protective remedy), the Recipient or its\nRepresentative is compelled to disclose Confidential Information, the Recipient or its Representative may disclose\nsuch information without liability hereunder; provided, however, (i) that the Recipient or its Representative give\nthe Disclosing Party prompt notice of the information to be disclosed and, upon request and at the expense of the\nDisclosing Party, use commercially reasonable efforts to obtain assurances that confidential treatment will be\naccorded to such information, (ii) only that portion of the Confidential Information which is legally required to be\ndisclosed will be disclosed and (iii) the Recipient or its Representative may make such disclosure only if it has\nreceived the advice of counsel that, under the circumstances then existing, making such disclosure is necessary or\nadvisable under applicable law.\n11. Although each party will endeavor to include in the Confidential Information items known to it which it believes to\nbe relevant for the purpose of the other party’s investigation and analysis of the Proposed Transaction, each party\nunderstands and agrees that neither the other party nor any of its Representatives have made or make any\nrepresentation or warranty as to the accuracy or completeness of the Confidential Information. In particular, and\nwithout limitation of the foregoing, each party understands that any projected or forecasted financial,\nPage3of5\nMarch 31, 2012\noperating, performance, strategy or other information reflects merely the judgment of management of such party at\nthe time of the preparation of such information, and is based upon a number of factors and circumstances beyond\nthe control of the party and its management. Accordingly, there can be no assurance that actual results or\nperformance will be in line with any such projections or forecasts. Each party agrees that, except as otherwise\nspecifically agreed to in a definitive written transaction agreement or other binding agreement, neither party nor\nany of its Representatives shall have any liability to the other party or any of its affiliates or Representatives arising\nout of or resulting from the use of the Confidential Information.\n12. Subject to its confidentiality and nondisclosure obligations as set forth in this Agreement, each party’s right to\ndevelop, use and market products and services similar to or competitive with those of the other party shall remain\nunimpaired. Each party acknowledges that the other party may already possess or have developed products or\nservices similar to or competitive with those of the other party disclosed in the Confidential Information.\n13. The parties agree that monetary damages may not be a sufficient remedy for any breach of this Agreement by a\nparty or its Representatives and that, in addition to all other available remedies, either party may be entitled to seek\nspecific performance and injunctive or other equitable relief as a remedy for any such breach.\n14. The parties agree that unless and until a definitive written agreement or other binding agreement between the\nparties with respect to a relationship of the type contemplated by the Proposed Transaction has been executed and\ndelivered by each party hereto, no party will be under any obligation of any kind whatsoever with respect to such a\nrelationship by virtue of this or any written or oral expression concerning such a transaction by any of its\nRepresentatives except, in the case of this Agreement, for the matters specifically agreed to herein. Each party\nfurther acknowledges and agrees that the other party reserves the right, in its sole discretion, to make or not to\nmake any proposal and to reject any and all proposals (or requests to make one or more proposals) made by the\nother party or any of its directors, officers, affiliates, employees, agents, advisors or representatives with regard to\nthe Proposed Transaction, and to terminate discussions and negotiations at any time.\n15. This Agreement sets forth the entire agreement and understanding of the parties with respect to the subject matter\nhereof, and supersedes all prior and contemporaneous agreements, arrangements, understandings, promises and\nassurances relating thereto. This Agreement is for the benefit of the parties hereto and their respective advisors,\ndirectors, officers, employees, shareholders, owners, affiliates, representatives and agents, and shall be governed\nby, construed, interpreted and enforced in accordance with the laws of the State of California, without giving effect\nto principles of conflict of laws which would result in the application of the laws of any other jurisdiction.\n16. This Agreement may be executed in separate counterparts, each of which counterparts shall be deemed an original\nand all of which counterparts shall together constitute one and the\nPage4of5\nMarch 31, 2012\nsame agreement. Nothing in this Agreement may be modified or waived except by a written agreement between\nthe parties expressly so modifying or waiving this Agreement.\n17. The term of this Agreement shall be one (1) year from the date hereof.\nIntegrated Device Technology, Inc.\nPLX Technology, Inc.\nBy: /s/ Ted Tewksbury\nBy: /s/ Ralph Schmitt\nName: Ted Tewksbury\nName: Ralph Schmitt\nTitle: President and Chief Executive Officer\nTitle: President and CEO\nPage5of5 EX-99.10 14 d356019dex9910.htm MUTUAL NON-DISCLOSURE AGREEMENT Exhibit 99.10\n».LOGO MUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (this “Agreement™) is dated as of March 31, 2012 between Integrated\nDevice Technology, Inc., a Delaware corporation (“IDT”), and PLX Technology, Inc., a Delaware corporation (“PLX"). IDT and PLX may work together to evaluate a possible strategic transaction involving IDT and PLX (“Proposed Transaction”). As used in this Agreement, the party disclosing Confidential Information, as defined below, is the “Disclosing Party” and the party receiving the Confidential Information is the “Recipient”. 1. During the evaluation of the Proposed Transaction, the Recipient agrees to treat confidentially information that is\nfurnished by either the Disclosing Party or its Representatives (as defined below) to the Recipient or the\nRecipient’s subsidiaries or its or their respective directors, officers, partners, employees, agents, representatives,\nincluding, without limitation, financial advisors, counsel, accountants, experts, and consultants (collectively,\n“Representatives”) in connection with the Proposed Transaction, together with notes, analyses, compilations,\nstudies or other documents prepared by the Recipient or by its Representatives to the extent they contain or\notherwise reflect such information or the Disclosing Party’s review of, or interest in, the Recipient (“Confidential\nInformation”).\nThe Confidential Information will be used solely for the purposes of evaluating the Proposed Transaction,\nprovided, however, that the Recipient may disclose any Confidential Information to its Representatives who need\nto know such information for the purpose of evaluating the Proposed Transaction. Prior to disclosing the\nConfidential Information to any Representative, however, the Recipient shall inform the Representative of the\nconfidential nature of such information and undertake reasonable efforts to cause them to treat such information on\na confidential basis. The Recipient shall be responsible for the breach of this Agreement by its Representatives that\nhave not separately signed a non-disclosure agreement with the Disclosing Party or any of its Representatives, and\nshall take all reasonable measures to restrain its Representatives from unauthorized disclosure of the Confidential\nInformation. The Disclosing Party and its Representatives shall otherwise have no recourse against any of the\nRecipient’s Representatives that have not separately signed a non-disclosure agreement with the Disclosing Party\nor any of its Representatives.\nThe public disclosure of the Proposed Transaction could have a material adverse effect on IDT’s and PLX’s\nbusinesses if, for any reason, a definitive agreement with respect to such transaction is not consummated.\nAccordingly, each party agrees that without the prior written consent of the other, it will not, and it will direct its\nRepresentatives not to, disclose to any person, other than its Representatives, either the fact that discussions or\nnegotiations are taking place concerning the Proposed Transaction between IDT and PLX or any of the terms and\nconditions with respect to the Proposed Transaction and no Confidential Information will be provided to such\npersons. The term “person” shall be broadly interpreted\nMarch 31, 2012\nto include, without limitation, any corporation, governmental agency or body, partnership or individual.\n4. The parties hereby acknowledge that they are aware that the United States securities laws prohibit any person who\nhas received from an issuer material, non-public information of the type which is the subject of this Agreement\nfrom purchasing or selling securities of such issuer or from communicating such information to any other person\nunder circumstances in which it is reasonably foreseeable that such person will purchase or sell such securities.\n5. Confidential Information disclosed hereunder shall at all times remain, as between the parties, the property of the\nDisclosing Party. No license under any trade secrets, copyrights, or other rights is granted by this Agreement or\nany disclosure of Confidential Information hereunder.\n6. Upon the Disclosing Party’s written request, the Recipient shall promptly destroy or return to the Disclosing Party\nall written Confidential Information (whether prepared by the Disclosing party or its Representatives) and will not\nretain any copies, extracts or other reproductions in whole or in part of such written materials except that (i) one\ncopy of each electronic version of such materials may be retained by Recipient and its Representatives in their\narchives pursuant to such party’s standard data backup and disaster recovery plans and (ii) Recipient’s outside legal\ncounsel and accountants may retain one hard copy of such materials in its archives solely for regulatory or\ncorporate records retention policy compliance and for dispute resolution; provided, however, that any Confidential\nInformation contained in such format may not be used for any other purpose and that all obligations contained\nherein shall, with respect to any Confidential Information so retained, survive any termination of this Agreement.\nReturn and/or destruction of Confidential Information and copies, extracts or other reproductions thereof and\ndocuments, memoranda, notes, and other writings to the extent that they contain Confidential Information shall be\ncertified in writing to the Disclosing Party by an authorized officer of the Recipient supervising such destruction\nupon the Disclosing Party’s written request.\n7. Nothing in this Agreement shall prohibit or limit the Recipient’s use of information (including, but not limited to,\nideas, concepts, know-how, techniques, and methodologies) (i) that was known to Recipient or any of its\nRepresentatives before disclosure by the Disclosing Party or its Representatives, (ii) that was or becomes available\nto the Recipient or any of its Representatives from a source other than the Disclosing Party or its Representatives,\nprovided that such source is not known by the Recipient to be prohibited from disclosing such information by a\ncontractual, legal, or fiduciary obligation to the Disclosing Party or its Representatives, (iii) which is or becomes\npublicly available other than as a result of a disclosure by the Recipient or its Representatives in breach of this\nAgreement or (iv) which is independently developed by Recipient or any of its Representatives without reference\nto the Disclosing Party’s Confidential Information.\n8. During the course of each party’s evaluation of the Proposed Transaction, all inquiries and other communications\nare to be made only to directors, officers, employees and\nPage 2 of 5\nMarch 31, 2012 10. 11. Representatives of the other parties who have been specifically authorized to discuss the Proposed Transaction. A\nparty shall not directly or indirectly contact or communicate with any shareholder, director, officer, employee or\nRepresentative of a party without the express written consent of the other party.\nIn consideration of the Confidential Information being furnished hereby, each party agrees that, without the prior\nwritten consent of the Chief Financial Officer or General Counsel of the other party, for a period of twelve\n(12) months from the date of this Agreement neither it nor any of its affiliates will, either directly or indirectly,\nsolicit for employment, or otherwise contract for the services of (or cause or seek to cause to leave the employ of\nother party or any of its affiliates) any person who is now employed or engaged (either as an employee or\nconsultant) or becomes employed or engaged during the term of this Agreement by the other party or its affiliates,\nother than persons whose employment or engagement shall have been terminated at least six (6) months prior to\nthe date of such solicitation, employment or other contractual arrangements. The prohibition contained in this\nparagraph does not extend to general solicitations of employment by a party not specifically directed towards the\nother party’s employees or consultants including but not limited to (i) advertising on the internet or in a newspaper\nor periodical of general circulation, (ii) an employee of an executive search firm acting on behalf of the hiring\ncompany where the hiring company did not instruct or encourage such solicitation, (iii) a general hiring program\nconducted by the hiring party in the ordinary course of business (such as a job fair or the like), or (iv) a response\nby the hiring party if the employee approaches the hiring party on an unsolicited basis.\nIn the event that a Recipient or its Representative, as the case may be, is requested in any judicial or administrative\nproceeding to disclose any Confidential Information, the Recipient or its Representative will give the Disclosing\nParty prompt notice of such request so that the Disclosing Party may seek an appropriate protective order or other\nprotective remedy. If, in the absence of a protective order (or other protective remedy), the Recipient or its\nRepresentative is compelled to disclose Confidential Information, the Recipient or its Representative may disclose\nsuch information without liability hereunder; provided, however, (i) that the Recipient or its Representative give\nthe Disclosing Party prompt notice of the information to be disclosed and, upon request and at the expense of the\nDisclosing Party, use commercially reasonable efforts to obtain assurances that confidential treatment will be\naccorded to such information, (ii) only that portion of the Confidential Information which is legally required to be\ndisclosed will be disclosed and (iii) the Recipient or its Representative may make such disclosure only if it has\nreceived the advice of counsel that, under the circumstances then existing, making such disclosure is necessary or\nadvisable under applicable law.\nAlthough each party will endeavor to include in the Confidential Information items known to it which it believes to\nbe relevant for the purpose of the other party’s investigation and analysis of the Proposed Transaction, each party\nunderstands and agrees that neither the other party nor any of its Representatives have made or make any\nrepresentation or warranty as to the accuracy or completeness of the Confidential Information. In particular, and\nwithout limitation of the foregoing, each party understands that any projected or forecasted financial,\nPage 3 of 5\nMarch 31, 2012 12. 13. 14. 15. 16. operating, performance, strategy or other information reflects merely the judgment of management of such party at\nthe time of the preparation of such information, and is based upon a number of factors and circumstances beyond\nthe control of the party and its management. Accordingly, there can be no assurance that actual results or\nperformance will be in line with any such projections or forecasts. Each party agrees that, except as otherwise\nspecifically agreed to in a definitive written transaction agreement or other binding agreement, neither party nor\nany of its Representatives shall have any liability to the other party or any of its affiliates or Representatives arising\nout of or resulting from the use of the Confidential Information.\nSubject to its confidentiality and nondisclosure obligations as set forth in this Agreement, each party’s right to\ndevelop, use and market products and services similar to or competitive with those of the other party shall remain\nunimpaired. Each party acknowledges that the other party may already possess or have developed products or\nservices similar to or competitive with those of the other party disclosed in the Confidential Information.\nThe parties agree that monetary damages may not be a sufficient remedy for any breach of this Agreement by a\nparty or its Representatives and that, in addition to all other available remedies, either party may be entitled to seek\nspecific performance and injunctive or other equitable relief as a remedy for any such breach.\nThe parties agree that unless and until a definitive written agreement or other binding agreement between the\nparties with respect to a relationship of the type contemplated by the Proposed Transaction has been executed and\ndelivered by each party hereto, no party will be under any obligation of any kind whatsoever with respect to such a\nrelationship by virtue of this or any written or oral expression concerning such a transaction by any of its\nRepresentatives except, in the case of this Agreement, for the matters specifically agreed to herein. Each party\nfurther acknowledges and agrees that the other party reserves the right, in its sole discretion, to make or not to\nmake any proposal and to reject any and all proposals (or requests to make one or more proposals) made by the\nother party or any of its directors, officers, affiliates, employees, agents, advisors or representatives with regard to\nthe Proposed Transaction, and to terminate discussions and negotiations at any time.\nThis Agreement sets forth the entire agreement and understanding of the parties with respect to the subject matter\nhereof, and supersedes all prior and contemporaneous agreements, arrangements, understandings, promises and\nassurances relating thereto. This Agreement is for the benefit of the parties hereto and their respective advisors,\ndirectors, officers, employees, shareholders, owners, affiliates, representatives and agents, and shall be governed\nby, construed, interpreted and enforced in accordance with the laws of the State of California, without giving effect\nto principles of conflict of laws which would result in the application of the laws of any other jurisdiction.\nThis Agreement may be executed in separate counterparts, each of which counterparts shall be deemed an original\nand all of which counterparts shall together constitute one and the\nPage 4 of 5\nMarch 31, 2012\nsame agreement. Nothing in this Agreement may be modified or waived except by a written agreement between\nthe parties expressly so modifying or waiving this Agreement.\n17. The term of this Agreement shall be one (1) year from the date hereof.\nIntegrated Device Technology, Inc. PLX Technology, Inc.\nBy: /s/ Ted Tewksbury By: /s/ Ralph Schmitt\nName: Ted Tewksbury Name: Ralph Schmitt\nTitle: President and Chief Executive Officer Title: President and CEO\nPage 5 of 5 EX-99.10 14 d356019dex9910.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit 99.10\nLoGo\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (this "Agreement") is dated as of March 31, 2012 between Integrated\nDevice Technology, Inc., a Delaware corporation ("IDT"), and PLX Technology, Inc., a Delaware corporation ("PLX").\nIDT and PLX may work together to evaluate a possible strategic transaction involving IDT and PLX ("Proposed\nTransaction") As used in this Agreement, the party disclosing Confidential Information, as defined below, is the\n"DisclosingParty." and the party receiving the Confidential Information is the "Recipient"\n1.\nDuring the evaluation of the Proposed Transaction, the Recipient agrees to treat confidentially information that is\nfurnished by either the Disclosing Party or its Representatives (as defined below) to the Recipient or the\nRecipient's subsidiaries or its or their respective directors, officers, partners, employees, agents, representatives,\nincluding, without limitation, financial advisors, counsel, accountants, experts, and consultants (collectively,\n"Representatives") in connection with the Proposed Transaction, together with notes, analyses, compilations,\nstudies or other documents prepared by the Recipient or by its Representatives to the extent they contain or\notherwise reflect such information or the Disclosing Party's review of, or interest in, the Recipient ("Confidential\nInformation").\n2.\nThe Confidential Information will be used solely for the purposes of evaluating the Proposed Transaction,\nprovided, however, that the Recipient may disclose any Confidential Information to its Representatives who need\nto know such information for the purpose of evaluating the Proposed Transaction. Prior to disclosing the\nConfidential Information to any Representative, however, the Recipient shall inform the Representative of the\nconfidential nature of such information and undertake reasonable efforts to cause them to treat such information on\na confidential basis. The Recipient shall be responsible for the breach of this Agreement by its Representatives that\nhave not separately signed a non-disclosure agreement with the Disclosing Party or any of its Representatives, and\nshall take all reasonable measures to restrain its Representatives from unauthorized disclosure of the Confidential\nInformation. The Disclosing Party and its Representatives shall otherwise have no recourse against any of the\nRecipient's Representatives that have not separately signed a non-disclosure agreement with the Disclosing Party\nor any of its Representatives.\n3.\nThe public disclosure of the Proposed Transaction could have a material adverse effect on IDT's and PLX's\nbusinesses if, for any reason, a definitive agreement with respect to such transaction is not consummated.\nAccordingly, each party agrees that without the prior written consent of the other, it will not, and it will direct its\nRepresentatives not to, disclose to any person, other than its Representatives, either the fact that discussions or\nnegotiations are taking place concerning the Proposed Transaction between IDT and PLX or any of the terms and\nconditions with respect to the Proposed Transaction and no Confidential Information will be provided to such\npersons. The term "person" shall be broadly interpreted\nMarch 31, 2012\nto include, without limitation, any corporation, governmental agency or body, partnership or individual.\n4.\nThe parties hereby acknowledge that they are aware that the United States securities laws prohibit any person who\nhas received from an issuer material, non-public information of the type which is the subject of this Agreement\nfrom purchasing or selling securities of such issuer or from communicating such information to any other person\nunder circumstances in which it is reasonably foreseeable that such person will purchase or sell such securities.\n5.\nConfidential Information disclosed hereunder shall at all times remain, as between the parties, the property of the\nDisclosing Party. No license under any trade secrets, copyrights, or other rights is granted by this Agreement or\nany disclosure of Confidential Information hereunder.\n6.\nUpon the Disclosing Party's written request, the Recipient shall promptly destroy or return to the Disclosing Party\nall written Confidential Information (whether prepared by the Disclosing party or its Representatives) and will not\nretain any copies, extracts or other reproductions in whole or in part of such written materials except that (i) one\ncopy of each electronic version of such materials may be retained by Recipient and its Representatives in their\narchives pursuant to such party's standard data backup and disaster recovery plans and (ii) Recipient's outside legal\ncounsel and accountants may retain one hard copy of such materials in its archives solely for regulatory or\ncorporate records retention policy compliance and for dispute resolution; provided, however, that any Confidential\nInformation contained in such format may not be used for any other purpose and that all obligations contained\nherein shall, with respect to any Confidential Information so retained, survive any termination of this Agreement.\nReturn and/or destruction of Confidential Information and copies, extracts or other reproductions thereof and\ndocuments, memoranda, notes, and other writings to the extent that they contain Confidential Information shall be\ncertified in writing to the Disclosing Party by an authorized officer of the Recipient supervising such destruction\nupon the Disclosing Party's written request.\n7.\nNothing in this Agreement shall prohibit or limit the Recipient's use of information (including, but not limited to,\nideas, concepts, know-how, techniques, and methodologies) (i) that was known to Recipient or any of its\nRepresentatives before disclosure by the Disclosing Party or its Representatives, (ii) that was or becomes available\nto the Recipient or any of its Representatives from a source other than the Disclosing Party or its Representatives,\nprovided that such source is not known by the Recipient to be prohibited from disclosing such information by a\ncontractual, legal, or fiduciary obligation to the Disclosing Party or its Representatives, (iii) which is or becomes\npublicly available other than as a result of a disclosure by the Recipient or its Representatives in breach of this\nAgreement or (iv) which is independently developed by Recipient or any of its Representatives without reference\nto the Disclosing Party's Confidential Information.\n8.\nDuring the course of each party's evaluation of the Proposed Transaction, all inquiries and other communications\nare to be made only to directors, officers, employees and\nPage 2 of 5\nMarch 31, 2012\nRepresentatives of the other parties who have been specifically authorized to discuss the Proposed Transaction. A\nparty shall not directly or indirectly contact or communicate with any shareholder, director, officer, employee or\nRepresentative of a party without the express written consent of the other party.\n9.\nIn consideration of the Confidential Information being furnished hereby, each party agrees that, without the prior\nwritten consent of the Chief Financial Officer or General Counsel of the other party, for a period of twelve\n(12) months from the date of this Agreement neither it nor any of its affiliates will, either directly or indirectly,\nsolicit for employment, or otherwise contract for the services of (or cause or seek to cause to leave the employ of\nother party or any of its affiliates) any person who is now employed or engaged (either as an employee or\nconsultant) or becomes employed or engaged during the term of this Agreement by the other party or its affiliates,\nother than persons whose employment or engagement shall have been terminated at least six (6) months prior to\nthe date of such solicitation, employment or other contractual arrangements. The prohibition contained in this\nparagraph does not extend to general solicitations of employment by a party not specifically directed towards the\nother party's employees or consultants including but not limited to (i) advertising on the internet or in a newspaper\nor periodical of general circulation, (ii) an employee of an executive search firm acting on behalf of the hiring\ncompany where the hiring company did not instruct or encourage such solicitation, (iii) a general hiring program\nconducted by the hiring party in the ordinary course of business (such as a job fair or the like), or (iv) a response\nby the hiring party if the employee approaches the hiring party on an unsolicited basis.\n10.\nIn the event that a Recipient or its Representative, as the case may be, is requested in any judicial or administrative\nproceeding to disclose any Confidential Information, the Recipient or its Representative will give the Disclosing\nParty prompt notice of such request so that the Disclosing Party may seek an appropriate protective order or other\nprotective remedy. If, in the absence of a protective order (or other protective remedy), the Recipient or its\nRepresentative is compelled to disclose Confidential Information, the Recipient or its Representative may disclose\nsuch information without liability hereunder; provided, however, (i) that the Recipient or its Representative give\nthe Disclosing Party prompt notice of the information to be disclosed and, upon request and at the expense of the\nDisclosing Party, use commercially reasonable efforts to obtain assurances that confidential treatment will be\naccorded to such information, (ii) only that portion of the Confidential Information which is legally required to be\ndisclosed will be disclosed and (iii) the Recipient or its Representative may make such disclosure only if it has\nreceived the advice of counsel that, under the circumstances then existing, making such disclosure is necessary or\nadvisable under applicable law.\n11.\nAlthough each party will endeavor to include in the Confidential Information items known to it which it believes\nto\nbe relevant for the purpose of the other party's investigation and analysis of the Proposed Transaction, each party\nunderstands and agrees that neither the other party nor any of its Representatives have made or make any\nrepresentation or warranty as to the accuracy or completeness of the Confidential Information. In particular, and\nwithout limitation of the foregoing, each party understands that any projected or forecasted financial,\nPage 3 of 5\nMarch 31, 2012\noperating, performance, strategy or other information reflects merely the judgment of management of such party at\nthe time of the preparation of such information, and is based upon a number of factors and circumstances beyond\nthe control of the party and its management. Accordingly, there can be no assurance that actual results or\nperformance will be in line with any such projections or forecasts. Each party agrees that, except as otherwise\nspecifically agreed to in a definitive written transaction agreement or other binding agreement, neither party nor\nany of its Representatives shall have any liability to the other party or any of its affiliates or Representatives arising\nout of or resulting from the use of the Confidential Information.\n12. Subject to its confidentiality and nondisclosure obligations as set forth in this Agreement, each party's right to\ndevelop, use and market products and services similar to or competitive with those of the other party shall remain\nunimpaired. Each party acknowledges that the other party may already possess or have developed products or\nservices similar to or competitive with those of the other party disclosed in the Confidential Information.\n13.\nThe parties agree that monetary damages may not be a sufficient remedy for any breach of this Agreement by a\nparty or its Representatives and that, in addition to all other available remedies, either party may be entitled to seek\nspecific performance and injunctive or other equitable relief as a remedy for any such breach.\n14. The parties agree that unless and until a definitive written agreement or other binding agreement between the\nparties with respect to a relationship of the type contemplated by the Proposed Transaction has been executed and\ndelivered by each party hereto, no party will be under any obligation of any kind whatsoever with respect to such a\nrelationship by virtue of this or any written or oral expression concerning such a transaction by any of its\nRepresentatives except, in the case of this Agreement, for the matters specifically agreed to herein. Each party\nfurther acknowledges and agrees that the other party reserves the right, in its sole discretion, to make or not to\nmake any proposal and to reject any and all proposals (or requests to make one or more proposals) made by the\nother party or any of its directors, officers, affiliates, employees, agents, advisors or representatives with regard to\nthe Proposed Transaction, and to terminate discussions and negotiations at any time.\n15. This Agreement sets forth the entire agreement and understanding of the parties with respect to the subject matter\nhereof, and supersedes all prior and contemporaneous agreements, arrangements, understandings, promises and\nassurances relating thereto. This Agreement is for the benefit of the parties hereto and their respective advisors,\ndirectors, officers, employees, shareholders, owners, affiliates, representatives and agents, and shall be governed\nby, construed, interpreted and enforced in accordance with the laws of the State of California, without giving effect\nto principles of conflict of laws which would result in the application of the laws of any other jurisdiction.\n16. This Agreement may be executed in separate counterparts, each of which counterparts shall be deemed an original\nand all of which counterparts shall together constitute one and the\nPage 4 of 5\nMarch 31, 2012\nsame agreement. Nothing in this Agreement may be modified or waived except by a written agreement between\nthe parties expressly SO modifying or waiving this Agreement.\n17. The term of this Agreement shall be one (1) year from the date hereof.\nIntegrated Device Technology, Inc.\nPLX Technology, Inc.\nBy:\n/s/ Ted Tewksbury\nBy: /s/ Ralph Schmitt\nName: Ted Tewksbury\nName: Ralph Schmitt\nTitle: President and Chief Executive Officer\nTitle: President and CEO\nPage 5 of 5 EX-99.10 14 d356019dex9910.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit 99.10\nLOGO\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (this “Agreement”) is dated as of March 31, 2012 between Integrated\nDevice Technology, Inc., a Delaware corporation (“IDT”), and PLX Technology, Inc., a Delaware corporation (“PLX”).\nIDT and PLX may work together to evaluate a possible strategic transaction involving IDT and PLX (“Proposed\nTransaction”). As used in this Agreement, the party disclosing Confidential Information, as defined below, is the\n“Disclosing Party” and the party receiving the Confidential Information is the “Recipient”.\n1. During the evaluation of the Proposed Transaction, the Recipient agrees to treat confidentially information that is\nfurnished by either the Disclosing Party or its Representatives (as defined below) to the Recipient or the\nRecipient’s subsidiaries or its or their respective directors, officers, partners, employees, agents, representatives,\nincluding, without limitation, financial advisors, counsel, accountants, experts, and consultants (collectively,\n“Representatives”) in connection with the Proposed Transaction, together with notes, analyses, compilations,\nstudies or other documents prepared by the Recipient or by its Representatives to the extent they contain or\notherwise reflect such information or the Disclosing Party’s review of, or interest in, the Recipient (“Confidential\nInformation”).\n2. The Confidential Information will be used solely for the purposes of evaluating the Proposed Transaction,\nprovided, however, that the Recipient may disclose any Confidential Information to its Representatives who need\nto know such information for the purpose of evaluating the Proposed Transaction. Prior to disclosing the\nConfidential Information to any Representative, however, the Recipient shall inform the Representative of the\nconfidential nature of such information and undertake reasonable efforts to cause them to treat such information on\na confidential basis. The Recipient shall be responsible for the breach of this Agreement by its Representatives that\nhave not separately signed a non-disclosure agreement with the Disclosing Party or any of its Representatives, and\nshall take all reasonable measures to restrain its Representatives from unauthorized disclosure of the Confidential\nInformation. The Disclosing Party and its Representatives shall otherwise have no recourse against any of the\nRecipient’s Representatives that have not separately signed a non-disclosure agreement with the Disclosing Party\nor any of its Representatives.\n3. The public disclosure of the Proposed Transaction could have a material adverse effect on IDT’s and PLX’s\nbusinesses if, for any reason, a definitive agreement with respect to such transaction is not consummated.\nAccordingly, each party agrees that without the prior written consent of the other, it will not, and it will direct its\nRepresentatives not to, disclose to any person, other than its Representatives, either the fact that discussions or\nnegotiations are taking place concerning the Proposed Transaction between IDT and PLX or any of the terms and\nconditions with respect to the Proposed Transaction and no Confidential Information will be provided to such\npersons. The term “person” shall be broadly interpreted\nMarch 31, 2012\nto include, without limitation, any corporation, governmental agency or body, partnership or individual.\n4. The parties hereby acknowledge that they are aware that the United States securities laws prohibit any person who\nhas received from an issuer material, non-public information of the type which is the subject of this Agreement\nfrom purchasing or selling securities of such issuer or from communicating such information to any other person\nunder circumstances in which it is reasonably foreseeable that such person will purchase or sell such securities.\n5. Confidential Information disclosed hereunder shall at all times remain, as between the parties, the property of the\nDisclosing Party. No license under any trade secrets, copyrights, or other rights is granted by this Agreement or\nany disclosure of Confidential Information hereunder.\n6. Upon the Disclosing Party’s written request, the Recipient shall promptly destroy or return to the Disclosing Party\nall written Confidential Information (whether prepared by the Disclosing party or its Representatives) and will not\nretain any copies, extracts or other reproductions in whole or in part of such written materials except that (i) one\ncopy of each electronic version of such materials may be retained by Recipient and its Representatives in their\narchives pursuant to such party’s standard data backup and disaster recovery plans and (ii) Recipient’s outside legal\ncounsel and accountants may retain one hard copy of such materials in its archives solely for regulatory or\ncorporate records retention policy compliance and for dispute resolution; provided, however, that any Confidential\nInformation contained in such format may not be used for any other purpose and that all obligations contained\nherein shall, with respect to any Confidential Information so retained, survive any termination of this Agreement.\nReturn and/or destruction of Confidential Information and copies, extracts or other reproductions thereof and\ndocuments, memoranda, notes, and other writings to the extent that they contain Confidential Information shall be\ncertified in writing to the Disclosing Party by an authorized officer of the Recipient supervising such destruction\nupon the Disclosing Party’s written request.\n7. Nothing in this Agreement shall prohibit or limit the Recipient’s use of information (including, but not limited to,\nideas, concepts, know-how, techniques, and methodologies) (i) that was known to Recipient or any of its\nRepresentatives before disclosure by the Disclosing Party or its Representatives, (ii) that was or becomes available\nto the Recipient or any of its Representatives from a source other than the Disclosing Party or its Representatives,\nprovided that such source is not known by the Recipient to be prohibited from disclosing such information by a\ncontractual, legal, or fiduciary obligation to the Disclosing Party or its Representatives, (iii) which is or becomes\npublicly available other than as a result of a disclosure by the Recipient or its Representatives in breach of this\nAgreement or (iv) which is independently developed by Recipient or any of its Representatives without reference\nto the Disclosing Party’s Confidential Information.\n8. During the course of each party’s evaluation of the Proposed Transaction, all inquiries and other communications\nare to be made only to directors, officers, employees and\nPage2of5\nMarch 31, 2012\nRepresentatives of the other parties who have been specifically authorized to discuss the Proposed Transaction. A\nparty shall not directly or indirectly contact or communicate with any shareholder, director, officer, employee or\nRepresentative of a party without the express written consent of the other party.\n9. In consideration of the Confidential Information being furnished hereby, each party agrees that, without the prior\nwritten consent of the Chief Financial Officer or General Counsel of the other party, for a period of twelve\n(12) months from the date of this Agreement neither it nor any of its affiliates will, either directly or indirectly,\nsolicit for employment, or otherwise contract for the services of (or cause or seek to cause to leave the employ of\nother party or any of its affiliates) any person who is now employed or engaged (either as an employee or\nconsultant) or becomes employed or engaged during the term of this Agreement by the other party or its affiliates,\nother than persons whose employment or engagement shall have been terminated at least six (6) months prior to\nthe date of such solicitation, employment or other contractual arrangements. The prohibition contained in this\nparagraph does not extend to general solicitations of employment by a party not specifically directed towards the\nother party’s employees or consultants including but not limited to (i) advertising on the internet or in a newspaper\nor periodical of general circulation, (ii) an employee of an executive search firm acting on behalf of the hiring\ncompany where the hiring company did not instruct or encourage such solicitation, (iii) a general hiring program\nconducted by the hiring party in the ordinary course of business (such as a job fair or the like), or (iv) a response\nby the hiring party if the employee approaches the hiring party on an unsolicited basis.\n10. In the event that a Recipient or its Representative, as the case may be, is requested in any judicial or administrative\nproceeding to disclose any Confidential Information, the Recipient or its Representative will give the Disclosing\nParty prompt notice of such request so that the Disclosing Party may seek an appropriate protective order or other\nprotective remedy. If, in the absence of a protective order (or other protective remedy), the Recipient or its\nRepresentative is compelled to disclose Confidential Information, the Recipient or its Representative may disclose\nsuch information without liability hereunder; provided, however, (i) that the Recipient or its Representative give\nthe Disclosing Party prompt notice of the information to be disclosed and, upon request and at the expense of the\nDisclosing Party, use commercially reasonable efforts to obtain assurances that confidential treatment will be\naccorded to such information, (ii) only that portion of the Confidential Information which is legally required to be\ndisclosed will be disclosed and (iii) the Recipient or its Representative may make such disclosure only if it has\nreceived the advice of counsel that, under the circumstances then existing, making such disclosure is necessary or\nadvisable under applicable law.\n11. Although each party will endeavor to include in the Confidential Information items known to it which it believes to\nbe relevant for the purpose of the other party’s investigation and analysis of the Proposed Transaction, each party\nunderstands and agrees that neither the other party nor any of its Representatives have made or make any\nrepresentation or warranty as to the accuracy or completeness of the Confidential Information. In particular, and\nwithout limitation of the foregoing, each party understands that any projected or forecasted financial,\nPage3of5\nMarch 31, 2012\noperating, performance, strategy or other information reflects merely the judgment of management of such party at\nthe time of the preparation of such information, and is based upon a number of factors and circumstances beyond\nthe control of the party and its management. Accordingly, there can be no assurance that actual results or\nperformance will be in line with any such projections or forecasts. Each party agrees that, except as otherwise\nspecifically agreed to in a definitive written transaction agreement or other binding agreement, neither party nor\nany of its Representatives shall have any liability to the other party or any of its affiliates or Representatives arising\nout of or resulting from the use of the Confidential Information.\n12. Subject to its confidentiality and nondisclosure obligations as set forth in this Agreement, each party’s right to\ndevelop, use and market products and services similar to or competitive with those of the other party shall remain\nunimpaired. Each party acknowledges that the other party may already possess or have developed products or\nservices similar to or competitive with those of the other party disclosed in the Confidential Information.\n13. The parties agree that monetary damages may not be a sufficient remedy for any breach of this Agreement by a\nparty or its Representatives and that, in addition to all other available remedies, either party may be entitled to seek\nspecific performance and injunctive or other equitable relief as a remedy for any such breach.\n14. The parties agree that unless and until a definitive written agreement or other binding agreement between the\nparties with respect to a relationship of the type contemplated by the Proposed Transaction has been executed and\ndelivered by each party hereto, no party will be under any obligation of any kind whatsoever with respect to such a\nrelationship by virtue of this or any written or oral expression concerning such a transaction by any of its\nRepresentatives except, in the case of this Agreement, for the matters specifically agreed to herein. Each party\nfurther acknowledges and agrees that the other party reserves the right, in its sole discretion, to make or not to\nmake any proposal and to reject any and all proposals (or requests to make one or more proposals) made by the\nother party or any of its directors, officers, affiliates, employees, agents, advisors or representatives with regard to\nthe Proposed Transaction, and to terminate discussions and negotiations at any time.\n15. This Agreement sets forth the entire agreement and understanding of the parties with respect to the subject matter\nhereof, and supersedes all prior and contemporaneous agreements, arrangements, understandings, promises and\nassurances relating thereto. This Agreement is for the benefit of the parties hereto and their respective advisors,\ndirectors, officers, employees, shareholders, owners, affiliates, representatives and agents, and shall be governed\nby, construed, interpreted and enforced in accordance with the laws of the State of California, without giving effect\nto principles of conflict of laws which would result in the application of the laws of any other jurisdiction.\n16. This Agreement may be executed in separate counterparts, each of which counterparts shall be deemed an original\nand all of which counterparts shall together constitute one and the\nPage4of5\nMarch 31, 2012\nsame agreement. Nothing in this Agreement may be modified or waived except by a written agreement between\nthe parties expressly so modifying or waiving this Agreement.\n17. The term of this Agreement shall be one (1) year from the date hereof.\nIntegrated Device Technology, Inc.\nPLX Technology, Inc.\nBy: /s/ Ted Tewksbury\nBy: /s/ Ralph Schmitt\nName: Ted Tewksbury\nName: Ralph Schmitt\nTitle: President and Chief Executive Officer\nTitle: President and CEO\nPage5of5 5100360b6dc2bade6771d2dca08b1d3f.pdf jurisdiction party term Exhibit 10.1\nEXECUTIVE EMPLOYMENT, NON-COMPETE\nAND CONFIDENTIALITY AGREEMENT\nTHIS EXECUTIVE EMPLOYMENT, NON-COMPETE AND CONFIDENTIALITY AGREEMENT (this\n"Agreement"), is entered into as of the date set forth on the signature page (the “Execution Date”) by and\nbetween Bruce L. Caswell (the "Executive") and MAXIMUS, Inc., a Virginia corporation with its principal place\nof business in Reston, Virginia (the "Corporation") with reference to the following:\nWHEREAS, the parties entered into that certain Executive Employment, Non-Compete and\nConfidentiality Agreement effective on or about October 1, 2004, which was subsequently amended on\nNovember 20, 2007 (as amended, the “Prior Agreement”); and\nWHEREAS, the parties believe the Executive possesses the experience and capabilities to provide\nvaluable service on behalf of the Corporation; and\nWHEREAS, the Corporation desires to employ the Executive as its President and Chief Executive\nOfficer; and\nWHEREAS, the Executive desires to be employed by the Corporation at the salary, benefits and other\nterms and conditions specified herein.\nNOW, THEREFORE, in consideration of these premises and for other good and valuable\nconsideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:\n1.\nEmployment.\n1.1Duties. The Corporation hereby employs the Executive, and the Executive hereby accepts such\nemployment, to serve as the President and Chief Executive Officer. The Executive hereby represents and\nwarrants that he is in good health and capable of performing the services required hereunder. The Executive\nshall perform such services and duties as are appropriate to such office or delegated to the Executive by the\nCorporation’s Board of Directors (“Board”). During the term of this Agreement, the Executive shall be a\nfull-time employee of the Corporation and shall devote such time and attention to the discharge of his duties\nas may be necessary and appropriate to accomplish and complete such duties.\nThe Executive shall be nominated by the Board for election as a director and shall serve, without\nadditional compensation, as a member of the Board, subject to his being so elected by the Corporation's\nstockholders. The Executive agrees to obtain the consent of the Board, which consent may be withheld in the\nBoard’s sole discretion, before serving on the board of any other entity or organization.\n1.2Compensation.\n(a)Base Salary. As compensation for performance of his obligations hereunder, the Corporation\nshall pay the Executive an annual salary of $700,000 ("Base Salary"), such Base Salary to be\nreviewed annually beginning on or about October 1, 2018.\n(b)Management Bonus Program. The Executive will be eligible to participate in the\nCorporation's Management Bonus Program (“MBP”), with any awards dependent on the performance\nof the Executive and the Corporation. The target annual cash bonus for the Executive will be one\nhundred percent (100%) of annual Base Salary for accomplishing his annual goals.\n(c)Equity Awards. The Executive shall be eligible to receive awards under the 2017 Equity\nIncentive Plan or any successor plan (the “Equity Plan”) in the discretion of the Corporation's Board of\nDirectors, and shall also be entitled to participate in stock option and similar plans as currently exist or\nmay be established by the Corporation from time to time. The target annual equity award for the\nExecutive will be three hundred seventy-five percent (375%) of annual Base Salary. The Corporation\nagrees to proportionately adjust the Executive’s vested and unvested equity awards in the event the\nCorporation declares an extraordinary dividend during the term hereof. For these purposes, an\n“extraordinary dividend” would be any distribution per share having a value in excess of ten percent\n(10%) of the average trading price of the Corporation’s common stock during the three-month period\npreceding such distribution. Any Restricted Stock Units or other equity awards made to the Executive\non or after the Effective Date, shall vest according to their stated vesting schedules (or pursuant to the\nacceleration feature in connection with a Change of Control) unless the Executive is terminated for\nCause or voluntarily resigns his employment without Good Reason in which case any unvested\nawards shall be forfeited as of the effective date of termination.\nFor purposes of this Agreement, the terms “Cause,” “Change of Control” and “Good Reason” shall\nhave the meanings set forth in the Corporations Income Continuity Program (“ICP”) in effect as of the\nEffective Date.\n(d)Income Continuity Program. The Executive shall continue to be a Participant in the ICP. In\nthe event the ICP is subsequently amended or terminated, upon a qualifying termination of Executive’s\nemployment in connection with a Change of Control the Executive shall be entitled to receive the\ngreater of (i) the compensation and benefits payable under the ICP as it exists on the Effective Date or\n(ii) the compensation and benefits payable under any amended or successor program to the ICP.\n(e)Vacation, Insurance, Expenses, Etc. The Executive shall be entitled to vacation under the\nCorporation’s Executive Time Off policy, and such benefits, health, disability and life insurance and\nother benefits and expense reimbursements in a manner consistent with the Corporation's past\npractices and as are provided to the Corporation’s senior executives.\n(f)Insurance. The Corporation shall maintain the Executive as an insured party on all directors'\nand officers' insurance maintained by the Corporation for the benefit of its directors and officers on at\nleast the same basis as all other covered individuals and provide the Executive with at least the same\ncorporate indemnification as its officers.\n(g)Attorneys’ Fees. The Corporation shall reimburse the Executive for reasonable attorneys’\nfees incurred in connection with the review and negotiation of this Agreement within thirty (30) days\nfollowing the Execution Date, subject to prior submission of an invoice therefor.\n1.3Term; Termination. The term of the employment agreement set forth in this Section 1 shall be for a\nperiod commencing at the Effective Date and continuing for three (3) years thereafter (the "Scheduled Term").\nFollowing the Scheduled Term, the Agreement shall automatically renew for successive one-year terms (each\na “Renewal Term”) unless either party notifies the other of its desire to terminate the Agreement no less than\nthree (3) months before the expiration of the Scheduled Term or Renewal Term. Notwithstanding the\nforegoing, this Agreement shall terminate:\n(a)by mutual written consent of the parties;\n(b)upon Executive's death or inability, by reason of physical or mental impairment, to perform\nsubstantially all of Executive's duties as contemplated herein for a continuous period of 120 days or\nmore; or\n(c)by the Corporation for Cause.\nUpon any termination of employment under this Section 1.3, neither party shall have any obligation to\nthe other pursuant to this Section 1, but such termination shall have no effect on the obligations of the parties\nunder other provisions of this Agreement.\n“Effective Date” shall mean April 1, 2018. The Prior Agreement shall remain in full force and effect until\nthe Effective Date, at which time it shall automatically terminate without further action by the parties,\n1.4 Severance. The parties agree that in the event (i) the Corporation terminates the Executive's\nemployment without Cause, (ii) the Executive terminates the employment for Good Reason prior to the\nexpiration of the Scheduled Term or then-current Renewal Term, as applicable, or (iii) the Corporation elects\nnot to renew the Agreement for another term, the Executive shall be entitled to receive the following upon the\nexecution of a general release by the Executive in the form attached hereto as Exhibit A, which release shall\nbe executed and irrevocable within thirty (30) days of termination:\n(a)benefits, at the Corporation's expense, as provided under Section 1.2(e) for the greater of\nthe remainder of the current term of the Agreement or twelve (12) months. To the extent that these\npayments are not exempt from Section 409A of the Internal Revenue Code of 1986, as amended (the\n'Code') under the COBRA, reimbursement, in-kind benefit, or other applicable exceptions thereunder,\nsuch payments shall be made at the time and in the amount required under the documents governing\neach such benefit;\n(b)continued vesting of stock options and Restricted Stock Units in accordance with their stated\nterms; and\n(c) a lump sum, payable within forty-five (45) days following termination of employment, equal\nto the greater of (i) Base Salary for the remainder of the Scheduled Term or Renewal Term or (ii) two\ntimes the sum of the Executive's Base Salary plus the lesser of his target bonus or previous year's\nactual bonus, which lump sum shall be considered a separate payment for purposes of Section 409A\nof the Code. If the Executive's employment termination occurs in connection with a Change in Control,\nthe Executive shall be entitled to receive such payments and benefits as provided under the Income\nContinuity Plan, and this Section 1.4 shall not apply.\n2.\nRestrictions on Competition and Solicitation.\n2.1.Prohibited Activities.\na.The Executive agrees that, during his employment with the Corporation and for a period of\none (1) year after the termination of such employment for any reason, the Executive, anywhere in the\nUnited States or in any other country or jurisdiction where the Corporation conducts business as of the\ntime of such termination:\ni.will not whether as a principal, investor, owner, executive, consultant, independent\ncontractor, officer, director, board member, manager, partner, agent, or otherwise, alone or in\nassociation with any other person, firm, corporation, or business organization, work for,\nbecome employed by, engage in, carry on, provide services to, or assist in any manner\n(whether or not for compensation or gain) an entity in competition with the Corporation, where\nthe Executive’s position or service for such entity is competitive with any of the Executive’s\npositions or services that the Executive performed for the Corporation;\nii. will not contact any of the Corporation’s Customers or Potential Customers or solicit\nor induce (or attempt to solicit or induce) any of them to not conduct business with the\nCorporation, or to conduct business with or contract with any other person or entity instead of\nthe Corporation. For purposes of this Agreement, “Customers or Potential Customers”\nmeans all persons, companies, firms, or entities that have, within the twelve (12) months prior\nto the Executive’s termination of employment: (A) obtained the Corporation’s services, (B)\ncontacted the Corporation for the purpose of obtaining the Corporation’s services, or (C) been\nactively solicited by the Corporation for the purpose of providing its services; and for which the\nExecutive provided services or about which the Executive had access to and knowledge of\nproprietary information;\niii.will not, directly or indirectly, contact, solicit or induce (or attempt to solicit or induce)\nany of the Corporation Personnel to leave their employment with the Corporation or consider\nemployment with any other person or entity. For purposes of this Agreement, the “Corporation\nPersonnel” shall mean any employee or service provider of the Corporation who worked for the\nCorporation during Executive’s employment and with whom the Executive worked personally or\nknew personally or who was known by the Executive to have unique knowledge or skills that\ncould cause competitive harm to the Corporation;\niv. will not, directly or indirectly, hire or cause to be hired (or engage or cause to be\nengaged as an independent contractor) any such Corporation Personnel; and\nv.Executive agrees that the restrictions set forth in this Section 2.1, in light of the access\nto client, proprietary and other confidential information that the Corporation provides to\nExecutive, are reasonable and necessary in order to protect the legitimate business interests of\nthe Corporation. Executive agrees that the duration of the restrictions set forth in this paragraph\nshall be extended by the duration of any period in which Executive is in violation of any of those\nrestrictions. The existence of any other claim by Executive against the Corporation, whether\nbased on this Agreement or otherwise, will not constitute a defense to the enforcement of this\nAgreement by the Corporation.\nb.The Executive shall notify any new employer, partner, association or any other firm or\ncorporation in competition with the Corporation with whom the Executive shall become associated in\nany capacity whatsoever of the provisions of this Section 2 and the Executive agrees that the\nCorporation may give such notice to such firm, corporation or other person.\n2.2.Business Opportunities; Conflicts of Interest; Other Employment and Activities of the Executive.\na.The Executive agrees promptly to advise the Corporation of, and provide the Corporation with\nan opportunity to pursue, all business opportunities that reasonably relate to the present business\nconducted by the Corporation.\nb.The Executive, in his capacity as an employee of the Corporation, shall not engage in any\nbusiness with any member of the Executive's immediate family or with any person or business entity in\nwhich the Executive or any member of the Executive's immediate family has any ownership interest or\nfinancial interest, unless and until the Executive has first fully disclosed such interest to and received\nwritten consent from the Board of Directors. As used herein, the term "immediate family" means the\nExecutive's spouse, natural or adopted children, parents or siblings and the term "financial interest"\nmeans any relationship with such person or business entity that may monetarily benefit the Executive\nor member of the Executive's immediate family, including any lending relationship or the guarantying of\nany obligations of such person or business entity by the Executive or member of his immediate family.\nc.The parties hereto agree that the Executive may, consistent with this Section 2.2, receive and\nretain speaking fees, referral fees from business opportunities not accepted by the\nCorporation, and fees from outside business activities and opportunities of the Executive consented to\nby the Board of Directors.\n3.Confidentiality. The Executive agrees that the Corporation's books, records, files and all other non-public\ninformation relating to the Corporation, its business, clients and employees are proprietary in nature and\ncontain trade secrets and shall be held in strict confidence by the Executive, and shall not, either during the\nterm of this Agreement or after the termination hereof, be used by Executive or disclosed, directly or indirectly,\nto any third party, except to the extent such use or disclosure is in furtherance of the Corporation's business or\nrequired by any law, rule, regulation or other legal process. The trade secrets or other proprietary or\nconfidential information referred to in the prior sentence includes, without limitation, all proposals to clients or\npotential clients, contracts, client or potential client lists, fee policies, financial information, administration or\nmarketing practices or procedures and all other information regarding the business of the Corporation and its\nclients not generally known to the public.\n4.Miscellaneous.\n4.1.Notices. All notices, requests, demands or other communications provided for in this Agreement\nshall be in writing and shall be delivered by hand, sent prepaid by overnight delivery service or sent by the\nUnited States mail, certified, postage prepaid, return receipt request, to the following:\nIf to the Corporation:\nMAXIMUS, Inc.\n1891 Metro Center Drive\nReston, Virginia 20190\nAttention: General Counsel\nIf to the Executive:\nBruce L. Caswell\nWith a copy (not constituting notice) to:\nWilliams & Connolly LLP\n725 Twelfth Street, NW\nWashington, DC 20005\nAttention: Deneen C. Howell, Esq.\nAny notice, request, demand or other communication delivered or sent in the foregoing manner shall be\ndeemed given or made (as the case may be) upon the earliest of (i) the date it is actually received, (ii) the\nbusiness-day after the day on which it is delivered by hand, (iii) the business day after the day on which it is\nproperly delivered to Federal Express (or a comparable overnight delivery service), or (iv) the third business\nday after the date on which it is deposited in the United States mail. Either party may change its address by\nnotifying the other party of the new address in any manner permitted by this paragraph.\n4.2.Remedies. The parties agree and acknowledge that any violation by the Executive of the terms\nhereof may result in irreparable injury and damage to the Corporation or its clients, which may not adequately\nbe compensable in monetary damages, that the Corporation will have no adequate remedy at law therefor,\nand that the Corporation may obtain such preliminary, temporary or permanent mandatory or restraining\ninjunctions, orders or decrees as may be necessary to protect it against, or on account of, any breach of the\nprovisions contained in this Agreement.\n4.3.No Obligation of Continued Employment. The Executive understands that this Agreement does not\ncreate an obligation on the part of the Corporation to continue the Executive's employment with the\nCorporation after the expiration or termination of this Agreement.\n4.4.Benefit; Assignment. This Agreement shall bind and inure to the benefit of the parties and their\nrespective personal representatives, heirs, successors and assigns, provided this Agreement may not be\nassigned by either party without the consent of the other, except that the Corporation may assign this\nAgreement in connection with the merger, consolidation or sale of all or substantially all of its business or\nassets.\n4.5.Entire Agreement. This Agreement supersedes all previous agreements, written or oral, with\nrespect to the subject matter of this Agreement other than the Prior Agreement, which shall remain in full force\nand effect until the Effective Date.\n4.6.Severability. In the event that any one or more of the provisions contained herein shall be held to\nbe invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect\nany other provisions of this Agreement, and all other provisions shall remain in full force and effect. If any of\nthe provisions of this Agreement is held to be excessively broad, it shall be reformed and construed by limiting\nand reducing it so as to be enforceable to the maximum extent permitted by law.\n4.7.Waivers. No delay or omission by either party in exercising any right under this Agreement will\noperate as a waiver of that or any other right. A waiver or consent given by either party on any occasion is\neffective only in that instance and will not be construed as a bar to or waiver of any right on any other\noccasion.\n4.8.Captions. The captions of the various sections and paragraphs of this Agreement have been\ninserted only for the purpose of convenience; such captions are not a part of this Agreement and shall not be\ndeemed in any manner to modify, explain, enlarge or restrict any of the provisions of this Agreement.\n4.9.Governing Law and Jurisdiction. This Agreement shall in all events and for all purposes be\ngoverned by, and construed in accordance with, the laws of the Commonwealth of Virginia. Any action or\nproceeding against the parties relating in any way to this Agreement must be brought and enforced in the\ncourts of Fairfax County, Virginia or the Eastern District of Virginia, and the parties irrevocably submit to the\njurisdiction of such courts in respect of any such action or proceeding.\n4.10.Amendments. No changes to this Agreement shall be binding unless in writing and signed by both\nthe parties.\n4.11 .Counterparts. This Agreement may be executed in several counterparts (including via facsimile\nand the electronic exchange of .pdf copies), each of which shall be deemed an original, and all such\ncounterparts shall constitute one instrument.\n4.12. Distributions to Specified Employees. Notwithstanding any provision to the contrary, to the\nextent the Executive is considered a specified employee under Section 409A of the Code and would be\nentitled to a payment during the six month period beginning on the Executive's date of termination that is not\notherwise excluded under Section 409A of the Code under the exceptions for short-term deferrals, separation\npay arrangements, reimbursements, in-kind distributions, or an otherwise applicable exemption, the payment\nwill not be made to the Executive until the earlier of the six month anniversary of the Executive's date of\ntermination or the Executive's death.\n4.13. Section 409A of the Code. It is the intention of the parties that this Agreement comply with and\nbe administered in accordance with Section 409A of the Code and the interpretive guidance thereunder,\nincluding the exceptions for short-term deferrals, separation pay arrangements, reimbursements, and in-\nkind distributions. The Agreement shall be construed and interpreted in accordance with such intent. To the\nextent such potential payments or benefits could become subject to such Section, the parties shall cooperate\nto amend this Agreement with the goal of giving the Executive the economic benefits described herein in a\nmanner that does not result in such tax being imposed. In the event that the Corporation does not so\ncooperate, the Corporation shall indemnify the Executive for any interest and additional tax arising from the\napplication of Section 409A of the Code, grossed-up for any other income tax incurred by Executive related to\nthe indemnification (i.e., indemnification of such additional income tax), assuming the highest marginal income\ntax rates apply to any taxable indemnification. Any indemnification payment shall be made within ninety (90)\ndays of the date Executive makes payment of the interest and/or additional tax.\nTHE EXECUTIVE HAS READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND THE\nEXECUTIVE UNDERSTANDS, AND AGREES TO, EACH OF SUCH PROVISIONS. THE EXECUTIVE\nUNDERSTANDS THAT THIS AGREEMENT MAY AFFECT THE EXECUTIVE'S RIGHT TO ACCEPT\nEMPLOYMENT WITH OTHER COMPANIES SUBSEQUENT TO THE EXECUTIVE'S EMPLOYMENT WITH\nTHE CORPORATION.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date set forth\nbelow.\nEXECUTIVE\nMAXIMUS, Inc.\n/s/ Bruce L. Caswell\nBy /s/ David R. Francis\nBruce L. Caswell\nDate January 10, 2018\nTitle General Counsel\nEXHIBIT A\nGENERAL RELEASE OF CLAIMS\nIn consideration of the Severance (“Severance”) to be provided to me under Section 1.4 of that certain\nExecutive Employment, Non-Compete and Confidentiality Agreement between me and MAXIMUS, Inc.\n(“MAXIMUS”) effective April 1, 2018 (the “Employment Agreement”), and intending to be legally bound, I\nagree as follows:\nGeneral Release and Waivers. I release MAXIMUS and its affiliated entities and their respective officers,\ndirectors, partners, owners, executives, contractors, clients, agents, representatives, administrators of any\nMAXIMUS benefit plan, predecessors, successors and assigns (the “Releasees”) from any and all individual\nor class action claims, actions, rights, demands, debts, damages, grievances or accountings of whatever\nnature, whether known or unknown, currently existing or arising in the future, that I have or may have against\nthe Releasees relating in any way to my employment with MAXIMUS or the termination thereof, including,\nwithout limitation, claims under the Age Discrimination in Employment Act, Older Workers Benefit Protection\nAct, Title VII of the Civil Rights Act of 1964, Worker Adjustment and Retraining Notification Act, Family and\nMedical Leave Act, Americans with Disabilities Act, Fair Credit Reporting Act, Sarbanes-Oxley Act,\nImmigration Reform and Control Act, Occupational Safety and Health Act, and all other federal, state or local\nlaws or any other statute, rule, regulation or executive order precluding discrimination or retaliation in\nemployment, claims for breach of contract, wrongful discharge, personal injuries or torts, defamation, and all\nother claims whether known or unknown, arising through the date of execution of this General Release of\nClaims (“General Release”) by me, excepting only those matters set forth in this General Release.\nExcluded from this General Release are: (i) any claim or right which cannot be waived by law, including\nwithout limitation, all claims arising after the date of this Agreement, claims for unemployment compensation,\nand claims for worker compensation benefits; (ii) claims under the Fair Labor Standards Act; (iii) the right to\nfile a charge with or participate in an investigation conducted by an administrative agency, provided I am\nwaiving, however, any right to any monetary recovery if any administrative agency pursues any claim or\nclaims on my behalf with the exception of monetary recovery for Securities and Exchange Commission claims;\n(iv) any indemnification obligations of MAXIMUS to me pertaining to the period prior to the date of my\ntermination of employment (“Termination Date”) in my capacity as a director or officer under the articles of\nincorporation, by-laws or other organizational documents of MAXIMUS and its affiliated entities; (v) to the\nextent pertaining to the period prior to the Termination Date, the obligations of any insurer (other than\nMAXIMUS and its affiliated entities, including with respect to self-insurance) under any insurance policy for\nevents, acts or omissions for directors or officers of MAXIMUS and its affiliated entities; and (vi) my right to all\nearned but unpaid base salary through the Termination Date, any earned but unpaid incentive compensation,\nreimbursement for any unreimbursed expenses in accordance with MAXIMUS’s business expense\nreimbursement policy as well as any accrued and vested benefits to which I am entitled in accordance with the\nterms of MAXIMUS’s various benefit plans, policies and programs. I understand that nothing in this General\nRelease prohibits me from reporting possible violations of federal law or regulation to any governmental\nagency or entity, including but not limited to the Department of Justice, the Securities and Exchange\nCommission, the Congress, and any agency Inspector General, or making other disclosures that are protected\nunder the whistleblower provisions of federal law or regulation.\nI understand that I shall continue to comply with any terms that expressly survive the termination of the\nEmployment Agreement. Likewise, any client non-disclosure agreements signed by me survive the\ntermination of my employment with MAXIMUS, and I shall comply with the terms of those agreements. I\nunderstand that I must have returned as of the Termination Date all originals and copies of MAXIMUS’s\nConfidential Information and other property in my possession or under my control, and that I not make any\nwillful or malicious negative or disparaging remarks regarding the Releasees.\nOlder Worker Benefit Protection Act. In compliance with the Older Worker Benefit Protection Act (“OWBPA”)\nand in providing a release I agree and acknowledge that: (a) I have read the terms of this General Release,\nunderstand its contents, and agree to the terms and conditions set forth in this General Release of my own\nfree will; (b) I have been advised orally and, by this document, in writing of my right to consult with legal\ncounsel prior to executing this General Release; (c) I do not rely on any statement or representation of\nMAXIMUS outside of the Employment Agreement and this document in entering into this General Release;\nand (d) I am not releasing rights or claims under the ADEA that arise after the date this General Release is\nexecuted.\nI understand that I shall have twenty-one (21) calendar days from the Termination Date (the “Consideration\nPeriod”) within which to consider the terms and execute this General Release. I further understand that\nalthough I may take all twenty-one (21) days to consider this General Release, I may execute and provide this\nGeneral Release sooner. I understand that this General Release must be signed no earlier than the\nTermination Date or later than twenty-one (21) days after the Termination Date.\nI acknowledge and understand that I may revoke this General Release within seven (7) calendar days of the\ndate on which I execute this document (the “Revocation Period”), and that should I wish to revoke this General\nRelease, the revocation must be in writing and must be delivered by hand or mail to the General Counsel of\nMAXIMUS within the Revocation Period. I understand that if I revoke by mail, the revocation must be\npostmarked within the Revocation Period, certified mail/return receipt requested, properly addressed as\nfollows:\nMAXIMUS, Inc.\nDavid R. Francis\nGeneral Counsel\n1891 Metro Center Drive\nReston, Virginia 20190\nI understand that if I wish to revoke by hand delivery, the revocation must be delivered to the person and\naddress stated above within the Revocation Period.\nI acknowledge that the Severance will not be paid until the Revocation Period has expired without me\nexercising my right of revocation. If I fail to sign and return this General Release by the end of the\nConsideration Period or if timely revoke it as provided herein, I shall have no right to the Severance.\nThis General Release shall be construed in accordance with Virginia law, without regard to any jurisdiction’s\nprinciples of conflict of laws, except where federal law applies. I understand and agree that if MAXIMUS\nprevails on any action to enforce this General Release, MAXIMUS shall be entitled to recover its reasonable\nlegal fees and costs.\nIN WITNESS WHEREOF, I have executed this General Release as of the date set forth below.\nBRUCE L. CASWELL\nDate: Exhibit 10.1\nEXECUTIVE EMPLOYMENT, NON-COMPETE\nAND CONFIDENTIALITY AGREEMENT\nTHIS EXECUTIVE EMPLOYMENT, NON-COMPETE AND CONFIDENTIALITY AGREEMENT (this\n"Agreement"), is entered into as of the date set forth on the signature page (the "Execution Date”) by and\nbetween Bruce L. Caswell (the "Executive") and MAXIMUS, Inc., a Virginia corporation with its principal place\nof business in Reston, Virginia (the "Corporation") with reference to the following:\nWHEREAS, the parties entered into that certain Executive Employment, Non-Compete and\nConfidentiality Agreement effective on or about October 1, 2004, which was subsequently amended on\nNovember 20, 2007 (as amended, the "PriorAgreement"); and\nWHEREAS, the parties believe the Executive possesses the experience and capabilities to provide\nvaluable service on behalfofthe Corporation; and\nWHEREAS, the Corporation desires to employ the Executive as its President and Chief Executive\nOfficer; and\nWHEREAS, the Executive desires to be employed by the Corporation at the salary, benefits and other\nterms and conditions specified herein.\nNOW, THEREFORE, in consideration of these premises and for other good and valuable\nconsideration, the receipt and adequacy ofwhich are hereby acknowledged, the parties agree as follows:\n1. E mployment.\n1.1Duties. The Corporation hereby employs the Executive, and the Executive hereby accepts such\nemployment, to serve as the President and Chief Executive Officer. The Executive hereby represents and\nwarrants that he is in good health and capable of performing the services required hereunder. The Executive\nshall perform such services and duties as are appropriate to such office or delegated to the Executive by the\nCorporation’s Board of Directors ("Board”). During the term of this Agreement, the Executive shall be a\nfull-time employee of the Corporation and shall devote such time and attention to the discharge of his duties\nas may be necessary and appropriate to accomplish and complete such duties.\nThe Executive shall be nominated by the Board for election as a director and shall serve, without\nadditional compensation, as a member of the Board, subject to his being so elected by the Corporation's\nstockholders. The Executive agrees to obtain the consent of the Board, which consent may be withheld in the\nBoard’s sole discretion, before serving on the board ofany other entity or organization.\n1.2Compensation.\n(a)Base Salary. As compensation for performance of his obligations hereunder, the Corporation\nshall pay the Executive an annual salary of $700,000 ("Base Salary"), such Base Salary to be\nreviewed annually beginning on or aboutOctober 1, 2018.\n(b)Management Bonus Program. The Executive will be eligible to participate in the\nCorporation's Management Bonus Program ("MBP”), with any awards dependent on the performance\nof the Executive and the Corporation. The target annual cash bonus for the Executive will be one\nhundred percent(100%) ofannual Base Salary foraccomplishing his annual goals.\n(c)Eguity Awards. The Executive shall be eligible to receive awards under the 2017 Equity\nIncentive Plan or any successor plan (the "Equity Plan”) in the discretion of the Corporation's Board of\nDirectors, and shall also be entitled to participate in stock option and similar plans as currently exist or\nmay be established by the Corporation from time to time. The target annual equity award for the\nExecutive will be three hundred seventy-five percent (375%) of annual Base Salary. The Corporation\nagrees to proportionately adjust the Executive’s vested and unvested equity awards in the event the\nCorporation declares an extraordinary dividend during the term hereof. For these purposes, an\n"extraordinary dividend” would be any distribution per share having a value in excess often percent\n(10%) of the average trading price of the Corporation’s common stock during the three-month period\npreceding such distribution. Any Restricted Stock Units or other equity awards made to the Executive\non or after the Effective Date, shall vest according to their stated vesting schedules (or pursuant to the\nacceleration feature in connection with a Change of Control) unless the Executive is terminated for\nCause or voluntarily resigns his employment without Good Reason in which case any unvested\nawards shall be forfeited as ofthe effective date oftermination.\nFor purposes of this Agreement, the terms "Cause,” "Change of Control” and "Good Reason” shall\nhave the meanings set forth in the Corporations Income Continuity Program ("lCP”) in effect as of the\nEffective Date.\n(d)lncome Continuity Program. The Executive shall continue to be a Participant in the lCP. In\nthe event the lCP is subsequently amended or terminated, upon a qualifying termination of Executive’s\nemployment in connection with a Change of Control the Executive shall be entitled to receive the\ngreater of (i) the compensation and benefits payable underthe ICP as it exists on the Effective Date or\n(ii) the compensation and benefits payable under any amended or successor program to the ICP.\n(e)Vacation, Insurance, Expenses, Etc. The Executive shall be entitled to vacation under the\nCorporation’s Executive Time Off policy, and such benefits, health, disability and life insurance and\nother benefits and expense reimbursements in a manner consistent with the Corporation's past\npractices and as are provided to the Corporation’s senior executives.\n(f)Insurance. The Corporation shall maintain the Executive as an insured party on all directors'\nand officers' insurance maintained by the Corporation for the benefit of its directors and officers on at\nleastthe same basis as all other covered individuals and provide the Executive with at leastthe same\ncorporate indemnification as its officers.\n(g)Attorneys’ Fees. The Corporation shall reimburse the Executive for reasonable attorneys’\nfees incurred in connection with the review and negotiation of this Agreement within thirty (30) days\nfollowing the Execution Date, subjectto prior submission ofan invoice therefor.\n1.3Term; Termination. The term of the employment agreement set forth in this Section 1 shall be for a\nperiod commencing atthe Effective Date and continuing forthree (3) years thereafter (the "Scheduled Term").\nFollowing the Scheduled Term, the Agreement shall automatically renew for successive one-year terms (each\na "Renewal Term”) unless either party notifies the other of its desire to terminate the Agreement no less than\nthree (3) months before the expiration of the Scheduled Term or Renewal Term. Notwithstanding the\nforegoing, this Agreement shall terminate:\n(a)by mutual written consent ofthe parties;\n(b)upon Executive's death or inability, by reason of physical or mental impairment, to perform\nsubstantially all of Executive's duties as contemplated herein for a continuous period of 120 days or\nmore; or\n(c)by the Corporation for Cause.\nUpon any termination of employment under this Section 1.3, neither party shall have any obligation to\nthe other pursuant to this Section 1, but such termination shall have no effect on the obligations of the parties\nunder other provisions of this Agreement.\n"Effective Date”sha|l mean April 1, 2018. The PriorAgreementshall remain in full force and effect until\nthe Effective Date, atwhich time it shall automatically terminate without further action by the parties,\n1.4 Severance. The parties agree that in the event (i) the Corporation terminates the Executive's\nemployment without Cause, (ii) the Executive terminates the employment for Good Reason prior to the\nexpiration of the Scheduled Term or then-current Renewal Term, as applicable, or (iii) the Corporation elects\nnot to renew the Agreement for another term, the Executive shall be entitled to receive the following upon the\nexecution of a general release by the Executive in the form attached hereto as ExhibitA, which release shall\nbe executed and irrevocable within thirty (30) days of termination:\n(a)benefits, at the Corporation's expense, as provided under Section 1.2(e) for the greater of\nthe remainder of the current term of the Agreement or twelve (12) months. To the extent that these\npayments are not exempt from Section 409A of the Internal Revenue Code of 1986, as amended (the\n'Code') under the COBRA, reimbursement, in-kind benefit, or other applicable exceptions thereunder,\nsuch payments shall be made at the time and in the amount required under the documents governing\neach such benefit;\n(b)continued vesting ofstock options and Restricted Stock Units in accordance with their stated\nterms; and\n(c) a lump sum, payable within forty-five (45) days following termination ofemployment, equal\nto the greater of (i) Base Salary for the remainder of the Scheduled Term or Renewal Term or (ii) two\ntimes the sum of the Executive's Base Salary plus the lesser of his target bonus or previous year's\nactual bonus, which lump sum shall be considered a separate payment for purposes of Section 409A\nof the Code. lfthe Executive's employment termination occurs in connection with a Change in Control,\nthe Executive shall be entitled to receive such payments and benefits as provided under the Income\nContinuity Plan, and this Section 1.4 shall notapply.\n2. Restrictions on Competition and Solicitation.\n2.1.P rohibited Activities.\na.The Executive agrees that, during his employment with the Corporation and for a period of\none (1) year after the termination of such employment for any reason, the Executive, anywhere in the\nUnited States or in any other country orjurisdiction where the Corporation conducts business as of the\ntime ofsuch termination:\ni.wi|| not whether as a principal, investor, owner, executive, consultant, independent\ncontractor, officer, director, board member, manager, partner, agent, or otherwise, alone or in\nassociation with any other person, firm, corporation, or business organization, work for,\nbecome employed by, engage in, carry on, provide services to, or assist in any manner\n(whether or not for compensation or gain) an entity in competition with the Corporation, where\nthe Executive’s position or service for such entity is competitive with any of the Executive’s\npositions or services thatthe Executive performed forthe Corporation;\nii. will not contact any of the Corporation’s Customers or Potential Customers or solicit\nor induce (or attempt to solicit or induce) any of them to not conduct business with the\nCorporation, or to conduct business with or contract with any other person or entity instead of\nthe Corporation. For purposes of this Agreement, "Customers or Potential Customers”\nmeans all persons, companies, firms, or entities that have, within the twelve (12) months prior\nto the Executive’s termination of employment: (A) obtained the Corporation’s services, (B)\ncontacted the Corporation for the purpose of obtaining the Corporation’s services, or (C) been\nactively solicited by the Corporation for the purpose of providing its services; and for which the\nExecutive provided services or about which the Executive had access to and knowledge of\nproprietary information;\niii.will not, directly or indirectly, contact, solicit or induce (or attempt to solicit or induce)\nany of the Corporation Personnel to leave their employment with the Corporation or consider\nemployment with any other person or entity. For purposes of this Agreement, the "Corporation\nPersonnel” shall mean any employee or service provider ofthe Corporation who worked for the\nCorporation during Executive’s employment and with whom the Executive worked personally or\nknew personally or who was known by the Executive to have unique knowledge or skills that\ncould cause competitive harm to the Corporation;\niv. will not, directly or indirectly, hire or cause to be hired (or engage or cause to be\nengaged as an independent contractor) any such Corporation Personnel; and\nv.Executive agrees thatthe restrictions set forth in this Section 2.1, in light of the access\nto client, proprietary and other confidential information that the Corporation provides to\nExecutive, are reasonable and necessary in orderto protect the legitimate business interests of\nthe Corporation. Executive agrees thatthe duration of the restrictions set forth in this paragraph\nshall be extended by the duration ofany period in which Executive is in violation ofany ofthose\nrestrictions. The existence of any other claim by Executive against the Corporation, whether\nbased on this Agreement or otherwise, will not constitute a defense to the enforcement of this\nAgreement by the Corporation.\nb.The Executive shall notify any new employer, partner, association or any other firm or\ncorporation in competition with the Corporation with whom the Executive shall become associated in\nany capacity whatsoever of the provisions of this Section 2 and the Executive agrees that the\nCorporation may give such notice to such firm, corporation or other person.\n2.2.Business Opportunities; Conflicts of Interest; Other Employment and Activities ofthe Executive.\na.The Executive agrees promptly to advise the Corporation of, and provide the Corporation with\nan opportunity to pursue, all business opportunities that reasonably relate to the present business\nconducted by the Corporation.\nb.The Executive, in his capacity as an employee of the Corporation, shall not engage in any\nbusiness with any member of the Executive's immediate family or with any person or business entity in\nwhich the Executive or any member ofthe Executive's immediate family has any ownership interest or\nfinancial interest, unless and until the Executive has first fully disclosed such interest to and received\nwritten consent from the Board of Directors. As used herein, the term "immediate family" means the\nExecutive's spouse, natural or adopted children, parents or siblings and the term "financial interest"\nmeans any relationship with such person or business entity that may monetarily benefit the Executive\nor member of the Executive's immediate family, including any lending relationship orthe guarantying of\nany obligations ofsuch person or business entity by the Executive or member of his immediate family.\nc.The parties hereto agree thatthe Executive may, consistent with this Section 2.2, receive and\nretain speaking fees, referral fees from business opportunities notaccepted by the\nCorporation, and fees from outside business activities and opportunities of the Executive consented to\nby the Board of Directors.\n3.Confidentiality. The Executive agrees that the Corporation's books, records, files and all other non-public\ninformation relating to the Corporation, its business, clients and employees are proprietary in nature and\ncontain trade secrets and shall be held in strict confidence by the Executive, and shall not, either during the\nterm of this Agreement or afterthe termination hereof, be used by Executive or disclosed, directly or indirectly,\nto any third party, except to the extent such use or disclosure is in furtherance ofthe Corporation's business or\nrequired by any law, rule, regulation or other legal process. The trade secrets or other proprietary or\nconfidential information referred to in the prior sentence includes, without limitation, all proposals to clients or\npotential clients, contracts, client or potential client lists, fee policies, financial information, administration or\nmarketing practices or procedures and all other information regarding the business of the Corporation and its\nclients not generally known to the public.\n4.Miscellaneous.\n4.1.Notices. All notices, requests, demands or other communications provided for in this Agreement\nshall be in writing and shall be delivered by hand, sent prepaid by overnight delivery service or sent by the\nUnited States mail, certified, postage prepaid, return receipt request, to the following:\nlfto the Corporation:\nMAXIMUS, Inc.\n1891 Metro Center Drive\nReston, Virginia 20190\nAttention: General Counsel\nlfto the Executive:\nBruce L. Caswell\nWith a copy (not constituting notice) to:\nWilliams & Connolly LLP\n725 Twelfth Street, NW\nWashington, DC 20005\nAttention: Deneen C. Howell, Esq.\nAny notice, request, demand or other communication delivered or sent in the foregoing manner shall be\ndeemed given or made (as the case may be) upon the earliest of (i) the date it is actually received, (ii) the\nbusiness-day after the day on which it is delivered by hand, (iii) the business day after the day on which it is\nproperly delivered to Federal Express (or a comparable overnight delivery service), or (iv) the third business\nday after the date on which it is deposited in the United States mail. Either party may change its address by\nnotifying the other party ofthe new address in any manner permitted by this paragraph.\n4.2.Remedies. The parties agree and acknowledge that any violation by the Executive of the terms\nhereof may result in irreparable injury and damage to the Corporation or its clients, which may not adequately\nbe compensable in monetary damages, that the Corporation will have no adequate remedy at law therefor,\nand that the Corporation may obtain such preliminary, temporary or permanent mandatory or restraining\ninjunctions, orders or decrees as may be necessary to protect it against, or on account of, any breach of the\nprovisions contained in this Agreement.\n4.3.No Obligation of Continued Employment. The Executive understands that this Agreement does not\ncreate an obligation on the part of the Corporation to continue the Executive's employment with the\nCorporation after the expiration or termination ofthis Agreement.\n4.4.Benefit; Assignment. This Agreement shall bind and inure to the benefit of the parties and their\nrespective personal representatives, heirs, successors and assigns, provided this Agreement may not be\nassigned by either party without the consent of the other, except that the Corporation may assign this\nAgreement in connection with the merger, consolidation or sale of all or substantially all of its business or\nassets.\n4.5.Entire Agreement. This Agreement supersedes all previous agreements, written or oral, with\nrespect to the subject matter of this Agreement otherthan the PriorAgreement, which shall remain in full force\nand effect until the Effective Date.\n4.6.Severability. In the event that any one or more of the provisions contained herein shall be held to\nbe invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect\nany other provisions of this Agreement, and all other provisions shall remain in full force and effect. If any of\nthe provisions ofthis Agreement is held to be excessively broad, it shall be reformed and construed by limiting\nand reducing itso as to be enforceable to the maximum extent permitted by law.\n4.7.Waivers. No delay or omission by either party in exercising any right under this Agreement will\noperate as a waiver of that or any other right. A waiver or consent given by either party on any occasion is\neffective only in that instance and will not be construed as a bar to or waiver of any right on any other\noccasion.\n4.8.Captions. The captions of the various sections and paragraphs of this Agreement have been\ninserted only for the purpose ofconvenience; such captions are not a part of this Agreement and shall not be\ndeemed in any mannerto modify, explain, enlarge or restrict any ofthe provisions of this Agreement.\n4.9.Governing Law and |urisdiction. This Agreement shall in all events and for all purposes be\ngoverned by, and construed in accordance with, the laws of the Commonwealth of Virginia. Any action or\nproceeding against the parties relating in any way to this Agreement must be brought and enforced in the\ncourts of Fairfax County, Virginia or the Eastern District ofVirginia, and the parties irrevocably submit to the\njurisdiction ofsuch courts in respect ofany such action or proceeding.\n4.10.Amendments. No changes to this Agreementshall be binding unless in writing and signed by both\nthe parties.\n4.11.Counterparts. This Agreement may be executed in several counterparts (including via facsimile\nand the electronic exchange of .pdf copies), each of which shall be deemed an original, and all such\ncounterparts shall constitute one instrument.\n4.12. Distributions to Specified Employees. Notwithstanding any provision to the contrary, to the\nextent the Executive is considered a specified employee under Section 409A of the Code and would be\nentitled to a payment during the six month period beginning on the Executive's date of termination that is not\notherwise excluded under Section 409A of the Code under the exceptions for short-term deferrals, separation\npay arrangements, reimbursements, in-kind distributions, or an otherwise applicable exemption, the payment\nwill not be made to the Executive until the earlier of the six month anniversary of the Executive's date of\ntermination orthe Executive's death.\n4.13. Section 409A of the Code. It is the intention of the parties that this Agreement comply with and\nbe administered in accordance with Section 409A of the Code and the interpretive guidance thereunder,\nincluding the exceptions for short-term deferrals, separation pay arrangements, reimbursements, and in-\nkind distributions. The Agreement shall be construed and interpreted in accordance with such intent. To the\nextent such potential payments or benefits could become subject to such Section, the parties shall cooperate\nto amend this Agreement with the goal of giving the Executive the economic benefits described herein in a\nmanner that does not result in such tax being imposed. In the event that the Corporation does not so\ncooperate, the Corporation shall indemnify the Executive for any interest and additional tax arising from the\napplication of Section 409A of the Code, grossed-up for any other income tax incurred by Executive related to\nthe indemnification (i.e., indemnification ofsuch additional income tax), assuming the highest marginal income\ntax rates apply to any taxable indemnification. Any indemnification payment shall be made within ninety (90)\ndays ofthe date Executive makes payment ofthe interest and/or additional tax.\nTHE EXECUTIVE HAS READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND THE\nEXECUTIVE UNDERSTANDS, AND AGREES TO, EACH OF SUCH PROVISIONS. THE EXECUTIVE\nUNDERSTANDS THAT THIS AGREEMENT MAY AFFECT THE EXECUTIVE'S RIGHT TO ACCEPT\nEMPLOYMENT WITH OTHER COMPANIES SUBSEQUENT TO THE EXECUTIVE'S EMPLOYMENT WITH\nTHE CORPORATION.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date set forth\nbelow.\nEXECUTIVE MAXIMUS, Inc.\n/s/ Bruce L. Caswell By /s/ David R. Francis\nBruce L. Caswell\nDate January 10, 2018 Title General Counsel\nEXHIBITA\nGENERAL RELEASE OF CLAIMS\nIn consideration of the Severance ("Severance”) to be provided to me under Section 1.4 of that certain\nExecutive Employment, Non-Compete and Confidentiality Agreement between me and MAXIMUS, Inc.\n("MAXIMUS”) effective April 1, 2018 (the "Employment Agreement”), and intending to be legally bound, I\nagree as follows:\nGeneral Release and Waivers. I release MAXIMUS and its affiliated entities and their respective officers,\ndirectors, partners, owners, executives, contractors, clients, agents, representatives, administrators of any\nMAXIMUS benefit plan, predecessors, successors and assigns (the "Releasees”) from any and all individual\nor class action claims, actions, rights, demands, debts, damages, grievances or accountings of whatever\nnature, whether known or unknown, currently existing or arising in the future, thatl have or may have against\nthe Releasees relating in any way to my employment with MAXIMUS or the termination thereof, including,\nwithout limitation, claims under the Age Discrimination in EmploymentAct, Older Workers Benefit Protection\nAct, Title VII of the Civil Rights Act of 1964, Worker Adjustment and Retraining Notification Act, Family and\nMedical Leave Act, Americans with Disabilities Act, Fair Credit Reporting Act, Sarbanes-Oxley Act,\nImmigration Reform and Control Act, Occupational Safety and Health Act, and all other federal, state or local\nlaws or any other statute, rule, regulation or executive order precluding discrimination or retaliation in\nemployment, claims for breach of contract, wrongful discharge, personal injuries or torts, defamation, and all\nother claims whether known or unknown, arising through the date of execution of this General Release of\nClaims ("General Release”) by me, excepting only those matters set forth in this General Release.\nExcluded from this General Release are: (i) any claim or right which cannot be waived by law, including\nwithout limitation, all claims arising after the date of this Agreement, claims for unemployment compensation,\nand claims for worker compensation benefits; (ii) claims under the Fair Labor Standards Act; (iii) the right to\nfile a charge with or participate in an investigation conducted by an administrative agency, provided I am\nwaiving, however, any right to any monetary recovery if any administrative agency pursues any claim or\nclaims on my behalfwith the exception of monetary recovery for Securities and Exchange Commission claims;\n(iv) any indemnification obligations of MAXIMUS to me pertaining to the period prior to the date of my\ntermination of employment ('Termination Date”) in my capacity as a director or officer under the articles of\nincorporation, by-laws or other organizational documents of MAXIMUS and its affiliated entities; (v) to the\nextent pertaining to the period prior to the Termination Date, the obligations of any insurer (other than\nMAXIMUS and its affiliated entities, including with respect to self-insurance) under any insurance policy for\nevents, acts or omissions for directors or officers of MAXIMUS and its affiliated entities; and (vi) my right to all\nearned but unpaid base salary through the Termination Date, any earned but unpaid incentive compensation,\nreimbursement for any unreimbursed expenses in accordance with MAXIMUS’s business expense\nreimbursement policy as well as any accrued and vested benefits to which I am entitled in accordance with the\nterms of MAXIMUS’s various benefit plans, policies and programs. I understand that nothing in this General\nRelease prohibits me from reporting possible violations of federal law or regulation to any governmental\nagency or entity, including but not limited to the Department of Justice, the Securities and Exchange\nCommission, the Congress, and any agency Inspector General, or making other disclosures thatare protected\nunder the whistleblower provisions of federal law or regulation.\nI understand that I shall continue to comply with any terms that expressly survive the termination of the\nEmployment Agreement. Likewise, any client non-disclosure agreements signed by me survive the\ntermination of my employment with MAXIMUS, and I shall comply with the terms of those agreements. I\nunderstand that I must have returned as of the Termination Date all originals and copies of MAXIMUS’s\nConfidential Information and other property in my possession or under my control, and that I not make any\nwillful or malicious negative ordisparaging remarks regarding the Releasees.\nOlder Worker Benefit Protection Act. In compliance with the Older Worker Benefit Protection Act (“OWBPA”)\nand in providing a release I agree and acknowledge that: (a) I have read the terms of this General Release,\nunderstand its contents, and agree to the terms and conditions set forth in this General Release of my own\nfree will; (b) l have been advised orally and, by this document, in writing of my right to consult with legal\ncounsel prior to executing this General Release; (c) I do not rely on any statement or representation of\nMAXIMUS outside of the Employment Agreement and this document in entering into this General Release;\nand (d) I am not releasing rights or claims under the ADEA that arise after the date this General Release is\nexecuted.\nI understand that I shall have twenty-one (21) calendar days from the Termination Date (the "Consideration\nPeriod”) within which to consider the terms and execute this General Release. I further understand that\nalthough I may take all twenty-one (21) days to considerthis General Release, I may execute and provide this\nGeneral Release sooner. I understand that this General Release must be signed no earlier than the\nTermination Date or laterthan twenty-one (21) days afterthe Termination Date.\nI acknowledge and understand thatl may revoke this General Release within seven (7) calendar days of the\ndate on which I execute this document (the "Revocation Period”), and that should I wish to revoke this General\nRelease, the revocation must be in writing and must be delivered by hand or mail to the General Counsel of\nMAXIMUS within the Revocation Period. I understand that if I revoke by mail, the revocation must be\npostmarked within the Revocation Period, certified mail/return receipt requested, properly addressed as\nfollows:\nMAXIMUS, Inc.\nDavid R. Francis\nGeneral Counsel\n1891 Metro Center Drive\nReston, Virginia 20190\nI understand that if I wish to revoke by hand delivery, the revocation must be delivered to the person and\naddress stated above within the Revocation Period.\nI acknowledge that the Severance will not be paid until the Revocation Period has expired without me\nexercising my right of revocation. If I fail to sign and return this General Release by the end of the\nConsideration Period or if timely revoke it as provided herein, I shall have no right to the Severance.\nThis General Release shall be construed in accordance with Virginia law, without regard to any jurisdiction’s\nprinciples of conflict of laws, except where federal law applies. I understand and agree that if MAXIMUS\nprevails on any action to enforce this General Release, MAXIMUS shall be entitled to recover its reasonable\nlegal fees and costs.\nIN WITNESS WHEREOF, I have executed this General Release as of the date setforth below.\nBRUCE L. CASWELL\nDate: xhibit 10.1\nEXECUTIVE EMPLOYMENT, NON-COMPETE\nAND CONFIDENTIALITY AGREEMENT\nTHIS EXECUTIVE EMPLOYMENT, NON-COMPETE AND CONFIDENTIALITY AGREEMENT (this\n"Agreement"), is entered into as of the date set forth on the signature page (the "Execution Date") by and\nbetween Bruce L. Caswell (the "Executive") and MAXIMUS, Inc., a Virginia corporation with its principal place\nof business in Reston, Virginia (the "Corporation") with reference to the following:\nWHEREAS, the parties entered into that certain Executive Employment, Non-Compete and\nConfidentiality Agreement effective on or about October 1, 2004, which was subsequently amended on\nNovember 20, 2007 (as amended, the "Prior Agreement"); and\nWHEREAS, the parties believe the Executive possesses the experience and capabilities to provide\nvaluable service on behalf of the Corporation; and\nWHEREAS, the Corporation desires to employ the Executive as its President and Chief Executive\nOfficer; and\nWHEREAS, the xecutive desires to be employed by the Corporation at the salary, benefits and other\nterms and conditions specified herein.\nNOW, THEREFORE, in consideration of these premises and for other good and valuable\nconsideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:\n1.\nEmployment.\n1.1Duties. The Corporation hereby employs the Executive, and the Executive hereby accepts such\nemployment, to serve as the President and Chief Executive Officer. The Executive hereby represents and\nwarrants that he is in good health and capable of performing the services required hereunder. The Executive\nshal perform such services and duties as are appropriate to such office or delegated to the Executive by the\nCorporation's Board of Directors ("Board"). During the term of this Agreement, the Executive shall be a\nfull-time employee of the Corporation and shall devote such time and attention to the discharge of his duties\nas may be necessary and appropriate to accomplish and complete such duties.\nThe Executive shall be nominated by the Board for election as a director and shall serve, without\nadditional compensation, as a member of the Board, subject to his being so elected by the Corporation's\nstockholders. The E xecutive agrees to obtain the consent of the Board, which consent may be withheld in the\nBoard's sole discretion, before serving on the board of any other entity or organization.\nCompensation\na)Base Salary. As compensation for performance of his obligations hereunder, the Corporation\nshall pay the Executive an annual salary of $700,000 ("Base Salary"), such Base Salary to be\nreviewed annually beginning on or about October 1, 2018.\n(b)Management Bonus Program. The Executive will be eligible to participate in the\nCorporation's Management Bonus Program ("MBP"), with any awards dependent on the performance\nof the Executive and the Corporation. The target annual cash bonus for the Executive will be one\nhundred percent (100%) of annual Base Salary for accomplishing his annual goals.\nquity Awards. The Executive shall be eligible to receive awards under the 2017 quity\nIncentive\nPlan\nor\nany\nsuccessor\nplan\n(the\n"Equity\nPlan")\nin\nthe\ndiscretion\nof\nthe\nCorporation's\nBoard\nof\nDirectors, and shall also be entitled to participate in stock option and similar plans as currently exist or\nmay be established by the Corporation from time to time. The target annua equity award for the\nExecutive will be three hundred seventy-five percent (375%) of annual Base Salary. The Corporation\nagrees to proportionately adjust the xecutive's vested and unvested equity awards in the event the\nCorporation declares an extraordinary dividend during the term hereof. For these purposes, an\n"extraordinary dividend" would be any distribution per share having a value in excess of ten percent\n(10%) of the average trading price of the Corporation's common stock during the three-month period\npreceding such distribution. Any Restricted Stock Units or other equity awards made to the Executive\non or after the Effective Date, shall vest according to their stated vesting schedules (or pursuant to the\nacceleration feature in connection with a Change of Control) unless the Executive is terminated for\nCause\nor\nvoluntarily\nresigns\nhis\nemployment\nwithout\nGood\nReason\nin\nwhich\ncase\nany\nunvested\nawards shall be forfeited as of the effective date of termination.\nFor purposes of this Agreement, the terms "Cause," "Change of Control" and "Good Reason" shal\nhave the meanings set forth in the Corporations Income Continuity Program ("ICP") in effect as of the\nEffective Date.\n(d)income Continuity Program. The Executive shal continue to be a Participant in the ICP. In\nthe event the ICP is subsequently amended or terminated, upon a qualifying termination of Executive's\nemployment in connection with a Change of Control the Executive shall be entitled to receive the\ngreater of (i) the compensation and benefits payable under the ICP as it exists on the Effective Date or\n(ii) the compensation and benefits payable under any amended or successor program to the ICP.\n(e)Vacation, Insurance, Expenses, Etc. The Executive shall be entitled to vacation under the\nCorporation's Executive Time Off policy, and such benefits, health, disability and life insurance and\nother benefits and expense reimbursements in a manner consistent with the Corporation's past\npractices and as are provided to the Corporation's senior executives.\n(f)insurance. The Corporation shall maintain the Executive as an insured party on all directors'\nand officers' insurance maintained by the Corporation for the benefit of its directors and officers on at\nleast the same basis as all other covered individuals and provide the Executive with at least the same\ncorporate indemnification as its officers.\ng)Attorneys' Fees. The Corporation shall reimburse the Executive for reasonable attorneys'\nfees incurred in connection with the review and negotiation of this Agreement within thirty (30) days\nfollowing the Execution Date, subject to prior submission of an invoice therefor.\n1.3Term; Termination. The term of the employment agreement set forth in this Section 1 shall be for a\nperiod commencing at the Effective Date and continuing for three (3) years thereafter (the Scheduled Term").\nollowing the Scheduled Term, the Agreement shall automatically renew for successive one-year terms (each\na "Renewal Term") unless either party notifies the other of its desire to terminate the Agreement no less than\nthree (3) months before the expiration of the Scheduled Term or Renewal Term. Notwithstanding the\nforegoing, this Agreement shall terminate:\n(a)by mutual written consent of the parties;\n(b)upon Executive's death or inability, by reason of physical or mental impairment, to perform\nsubstantially all of Executive's duties as contemplated herein for a continuous period of 120 days or\nmore; or\n(c)by the Corporation for Cause.\nUpon any termination of employment under this Section 1.3, neither party shall have any obligation to\nthe other pursuant to this Section 1, but such termination shall have no effect on the obligations of the parties\nunder other provisions of this Agreement.\nEffective Date" shall mean April 1, 2018. The Prior Agreement shal remain in full force and effect until\nthe ffective Date, at which time it shall automatically terminate without further action by the parties,\n1.4 Severance. The parties agree that in the event (i) the Corporation terminates the Executive's\nemployment without Cause, (ii) the Executive terminates the employment for Good Reason prior to the\nexpiration of the Scheduled Term or then-current Renewal Term, as applicable, or (iii) the Corporation elects\nnot to renew the Agreement for another term, the Executive shall be entitled to receive the following upon the\nexecution of a genera release by the Executive in the form attached hereto as Exhibit A, which release shall\nbe executed and irrevocable within thirty (30) days of termination:\n(a)benefits, at the Corporation's expense, as provided under Section 1.2(e) for the greater of\nthe remainder of the current term of the Agreement or twelve (12) months. To the extent that these\npayments are not exempt from Section 409A of the Internal Revenue Code of 1986, as amended\n(the\n'Code') under the COBRA, reimbursement, in-kind benefit, or other applicable exceptions thereunder,\nsuch payments shall be made at the time and in the amount required under the documents governing\neach such benefit;\n(b)continued vesting of stock options and Restricted Stock Units in accordance with their stated\nterms; and\n(c) a lump sum, payable within forty-five (45) days following termination of employment, equal\nto the greater of (i) Base Salary for the remainder of the Scheduled Term or Renewal Term or (ii) two\ntimes the sum of the Executive's Base Salary plus the lesser of his target bonus or previous year's\nactual bonus, which lump sum shal be considered a separate payment for purposes of Section 409A\nof the Code. if the E xecutive's employment termination occurs in connection with a Change in Control,\nthe Executive shal be entitled to receive such payments and benefits as provided under the Income\nContinuity lan, and this Section 1.4 shall not apply.\n2.\nRestrictions on Competition and Solicitation.\n2.1. rohibited Activities.\na.The Executive agrees that, during his employment with the Corporation and for a period of\none\n(1)\nyear\nafter\nthe\ntermination\nof\nsuch\nemployment\nfor\nany\nreason,\nthe\nExecutive,\nanywhere\nin\nthe\nUnited States or in any other country or jurisdiction where the Corporation conducts business as of the\ntime of such termination:\ni.will not whether as a principal, investor, owner, executive, consultant, independent\ncontractor, officer, director, board member, manager, partner, agent, or otherwise, alone or in\nassociation with any other person, firm, corporation, or business organization, work for,\nbecome employed by, engage in, carry on, provide services to, or assist in any manner\n(whether or not for compensation or gain) an entity in competition with the Corporation, where\nthe Executive's position or service for such entity is competitive with any of the Executive's\npositions or services that the Executive performed for the Corporation;\nii. will not contact any of the Corporation's Customers or Potential Customers or solicit\nor induce (or attempt to solicit or induce) any of them to not conduct business with the\nCorporation, or to conduct business with or contract with any other person or entity instead of\nthe Corporation. For purposes of this Agreement, "Customers or Potential Customers"\nmeans all persons, companies, firms, or entities that have, within the twelve (12) months prior\nto\nthe\nExecutive's\ntermination\nof\nemployment:\n(A)\nobtained\nthe\nCorporation's\nservices,\n(B)\ncontacted the Corporation for the purpose of obtaining the Corporation's services, or (C) been\nactively solicited by the Corporation for the purpose of providing its services; and for which the\nExecutive provided services or about which the Executive had access to and knowledge of\nproprietary information;\nii.will not, directly or indirectly, contact, solicit or induce (or attempt to solicit or induce)\nany of the Corporation Personnel to leave their employment with the Corporation or consider\nemployment with any other person or entity. For purposes of this Agreement, the "Corporation\nPersonnel" shall mean any employee or service provider of the Corporation who worked for the\nCorporation\nduring\nExecutive's\nemployment\nand\nwith\nwhom\nthe\nxecutive\nworked\npersonally\nor\nknew personally or who was known by the Executive to have unique knowledge or skills that\ncould cause competitive harm to the Corporation;\niv. will not, directly or indirectly, hire or cause to be hired (or engage or cause to be\nengaged as an independent contractor) any such Corporation Personnel; and\nV.E xecutive agrees that the restrictions set forth in this Section 2.1, in light of the access\nto client, proprietary and other confidential information that the Corporation provides to\nExecutive, are reasonable and necessary in order to protect the legitimate business interests of\nthe Corporation. Executive agrees that the duration of the restrictions set forth in this paragraph\nshal be extended by the duration of any period in which Executive is in violation of any of those\nrestrictions. The existence of any other claim by Executive against the Corporation, whether\nbased on this Agreement or otherwise, will not constitute a defense to the enforcement of this\nAgreement by the Corporation.\n.The Executive shall notify any new employer, partner, association or any other firm or\ncorporation in competition with the Corporation with whom the Executive shall become associated in\nany capacity whatsoever of the provisions of this Section 2 and the Executive agrees that the\nCorporation may give such notice to such firm, corporation or other person.\n2.Business Opportunities; Conflicts of Interest; Other mployment and Activities of the Executive.\na.The Executive agrees promptly to advise the Corporation of, and provide the Corporation with\nan opportunity to pursue, all business opportunities that reasonably relate to the present business\nconducted by the Corporation.\n.The Executive, in his capacity as an employee of the Corporation, shall not engage in any\nbusiness with any member of the Executive's immediate family or with any person or business entity in\nwhich the E xecutive or any member of the Executive's immediate family has any ownership interest or\nfinancial interest, unless and unti the Executive has first fully disclosed such interest to and received\nwritten\nconsent\nfrom\nthe\nBoard\nof\nDirectors.\nAs\nused\nherein,\nthe\nterm\n"immediate\nfamily"\nmeans\nthe\nExecutive's spouse, natural or adopted children, parents or siblings and the term "financial interest"\nmeans any relationship with such person or business entity that may monetarily benefit the Executive\nor member of the Executive's immediate family, including any lending relationship or the guarantying\nof\nany obligations of such person or business entity by the Executive or member of his immediate family.\nc.The parties hereto agree that the Executive may, consistent with this Section 2.2, receive and\nretain speaking fees, referral fees from business opportunities not accepted by the\nCorporation, and fees from outside business activities and opportunities of the Executive consented to\nby the Board of Directors.\nB.Confidentiality. The Executive agrees that the Corporation's books, records, files and all other non-public\ninformation relating to the Corporation, its business, clients and employees are proprietary in nature and\ncontain trade secrets and shall be held in strict confidence by the Executive, and shall not, either during the\nterm of this Agreement or after the termination hereof, be used by xecutive or disclosed, directly or indirectly,\nto any third party, except to the extent such use or disclosure is in furtherance of the Corporation's business or\nrequired\nby any law, rule, regulation or other legal process. The trade secrets or other proprietary or\nconfidential information referred to in the prior sentence includes, without limitation, all proposals to clients or\npotential clients, contracts, client or potential client lists, fee policies, financial information, administration or\nmarketing practices or procedures and all other information regarding the business of the Corporation and its\nclients not generally known to the public.\n4.Miscellaneous.\n4.1. Notices. All notices, requests, demands or other communications provided for in this Agreement\nshall be in writing and shall be delivered by hand, sent prepaid by overnight delivery service or sent by the\nUnited States mail, certified, postage prepaid, return receipt request, to the following:\nIf to the Corporation:\nMAXIMUS, Inc.\n1891 Metro Center Drive\nReston, Virginia 20190\nAttention: General Counsel\nIf to the Executive:\nBruce L. Caswell\nWith a copy (not constituting notice) to:\nWilliams & Connolly LLP\n725 Twelfth Street, NW\nWashington, DC 20005\nAttention: Deneen C. Howell, Esq.\nAny notice, request demand or other communication delivered or sent in the foregoing manner shall be\ndeemed given or made (as the case may be) upon the earliest of (i) the date it is actually received, (ii) the\nbusiness-day after the day on which it is delivered by hand, (iii) the business day after the day on which it is\nproperly\ndelivered\nto\nFedera\nExpress\n(or\na\ncomparable\novernight\ndelivery\nservice),\nor\n(iv)\nthe\nthird\nbusiness\nday after the date on which it is deposited in the United States mail. ither party may change its address by\nnotifying the other party of the new address in any manner permitted by this paragraph.\n4.2. Remedies. The parties agree and acknowledge that any violation by the Executive of the terms\nhereof may result in irreparable injury and damage to the Corporation or its clients, which may not adequately\nbe compensable in monetary damages, that the Corporation will have no adequate remedy at law therefor,\nand\nthat\nthe\nCorporation may obtain such preliminary, temporary or permanent mandatory or restraining\ninjunctions, orders or decrees as may be necessary to protect it against, or on account of, any breach of the\nprovisions contained in this Agreement.\n4.3.No Obligation of Continued Employment. The xecutive understands that this Agreement does not\ncreate an obligation on the part of the Corporation to continue the Executive's employment with the\nCorporation after the expiration or termination of this Agreement.\n.Benefit; Assignment. This Agreement shall bind and inure to the benefit of the parties and their\nrespective\npersonal\nrepresentatives,\nheirs,\nsuccessors\nand\nassigns,\nprovided\nthis\nAgreement\nmay\nnot\nbe\nassigned by either party without the consent of the other, except that the Corporation may assign this\nAgreement in connection with the merger, consolidation or sale of all or substantially all of its business or\nassets.\n4.5.E ntire Agreement. This Agreement supersedes all previous agreements, written or oral, with\nrespect to the subject matter of this Agreement other than the rior Agreement, which shall remain in ful force\nand effect unti the Effective Date.\n4.6.S Severability. In the event that any one or more of the provisions contained herein shall be held to\nbe invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect\nany other provisions of this Agreement, and all other provisions shall remain in full force and effect if any of\nthe provisions of this Agreement is held to be excessively broad, it shall be reformed and construed by limiting\nand reducing it so as to be enforceable to the maximum extent permitted by law.\n7.Waivers. No delay or omission by either party in exercising any right under this Agreement will\noperate as a waiver of that or any other right A waiver or consent given by either party on any occasion is\neffective only in that instance and will not be construed as a bar to or waiver of any right on any other\noccasion.\n8.Captions. The captions of the various sections and paragraphs of this Agreement have been\ninserted only for the purpose of convenience; such captions are not a part of this Agreement and shall not be\ndeemed in any manner to modify, explain, enlarge or restrict any of the provisions of this Agreement.\n.9.Governing Law and urisdiction This Agreement shall in all events and for all purposes be\ngoverned by, and construed in accordance with, the laws of the Commonwealth of Virginia Any action or\nproceeding against the parties relating in any way to this Agreement must be brought and enforced in the\ncourts\nof Fairfax County, Virginia or the Eastern District of Virginia, and the parties irrevocably submit to the\njurisdiction of such courts in respect of any such action or proceeding.\n.10.Amendments. No changes to this Agreement shall be binding unless in writing and signed by both\nthe parties.\n.11.Counterparts. This Agreement may be executed in several counterparts (including via facsimile\nand the electronic exchange of .pdf copies), each of which shall be deemed an original, and all such\ncounterparts shal constitute one instrument.\n4.12. Distributions to Specified Employees. Notwithstanding any provision to the contrary, to the\nextent the Executive is considered a specified employee under Section 409A of the Code and would be\nentitled to a payment during the six month period beginning on the Executive's date of termination that is not\notherwise excluded under Section 409A of the Code under the exceptions for short-term deferrals, separation\npay arrangements, reimbursements, in-kind distributions, or an otherwise applicable exemption, the payment\nwill not be made to the Executive until the earlier of the six month anniversary of the Executive's date of\ntermination or the E xecutive's death.\n4.13. Section 409A of the Code. It is the intention of the parties that this Agreement comply with and\nbe administered in accordance with Section 409A of the Code and the interpretive guidance thereunder,\nincluding the exceptions for short-term deferrals, separation pay arrangements, reimbursements, and in-\nkind distributions. The Agreement shall be construed and interpreted in accordance with such intent. To the\nextent such potential payments or benefits could become subject to such Section, the parties shall cooperate\nto amend this Agreement with the goa of giving the Executive the economic benefits described herein in a\nmanner that does not result in such tax being imposed. In the event that the Corporation does not so\ncooperate, the Corporation shall indemnify the Executive for any interest and additional tax arising from the\napplication of Section 409A of the Code, grossed-up for any other income tax incurred by Executive related to\nthe\nindemnification (i.e., indemnification of such additiona income tax), assuming the highest marginal income\ntax rates apply to any taxable indemnification. Any indemnification payment shall be made within ninety (90)\ndays of the date Executive makes payment of the interest and/or additional tax.\nTHE EXECUTIVE HAS READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND THE\nEXECUTIVE UNDERSTANDS, AND AGREES TO, EACH OF SUCH PROVISIONS. THE EXECUTIVE\nUNDERSTANDS THAT THIS AGREEMENT MAY AFFECT THE EXECUTIVE'S RIGHT TO ACCEPT\nEMPLOYMENT WITH OTHER COMPANIES SUBSEQUENT TO THE EXECUTIVE'S EMPLOYMENT WITH\nTHE CORPORATION.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date set forth\nbelow.\nEXECUTIVE\nMAXIMUS, Inc.\n/s/ Bruce L. Caswell\nBy /s/ David R. Francis\nBruce L. Caswell\nDate J anuary 10, 2018\nTitle General Counsel\nEXHIBIT A\nGENERAL RELEASE OF CLAIMS\nIn consideration of the Severance ("Severance") to be provided to me under Section 1.4 of that certain\nExecutive Employment, Non-Compete and Confidentiality Agreement between me and MAXIMUS, Inc.\n("MAXIMUS") effective April 1, 2018 (the Employment Agreement"), and intending to be legally bound,\nI\nagree as follows:\nGeneral Release and Waivers. I release MAXIMUS and its affiliated entities and their respective officers,\ndirectors,\npartners,\nowners,\nexecutives,\ncontractors,\nclients,\nagents,\nrepresentatives,\nadministrators\nof\nany\nMAXIMUS benefit plan, predecessors, successors and assigns (the "Releasees") from any and all individual\nor class action claims, actions, rights, demands, debts, damages, grievances or accountings of whatever\nnature, whether known or unknown, currently existing or arising in the future, that have or may have against\nthe Releasees relating in any way to my employment with MAXIMUS or the termination thereof, including,\nwithout limitation, claims under the Age Discrimination in Employment Act, Older Workers Benefit rotection\nAct, Title VII of the Civil Rights Act of 1964, Worker Adjustment and Retraining Notification Act, Family and\nMedical Leave Act, Americans with Disabilities Act, Fair Credit Reporting Act, Sarbanes-Oxley Act,\nImmigration\nReform\nand\nControl\nAct,\nOccupational\nSafety\nand\nHealth\nAct,\nand\nall\nother\nfederal,\nstate\nor\nlocal\nlaws or any other statute, rule, regulation or executive order precluding discrimination or retaliation in\nemployment, claims for breach of contract, wrongful discharge, personal injuries or torts, defamation, and all\nother claims whether known or unknown, arising through the date of execution of this General Release of\nClaims ("Genera Release") by me, excepting only those matters set forth in this General Release.\nExcluded from this General Release are: (i) any claim or right which cannot be waived by law, including\nwithout limitation, all claims arising after the date of this Agreement, claims for unemployment compensation,\nand claims for worker compensation benefits; (ii) claims under the Fair Labor Standards Act; (iii) the right to\nfile\na\ncharge\nwith\nor\nparticipate\nin\nan\ninvestigation\nconducted\nby\nan\nadministrative\nagency,\nprovided\nam\nwaiving, however, any right to any monetary recovery if any administrative agency pursues any claim or\nclaims on my behalf with the exception of monetary recovery for Securities and xchange Commission claims;\n(iv) any indemnification obligations of MAXIMUS to me pertaining to the period prior to the date of my\ntermination of employment ("Termination Date") in my capacity as a director or officer under the articles of\nincorporation, by-laws or other organizational documents of MAXIMUS and its affiliated entities; (v) to the\nextent pertaining to the period prior to the Termination Date, the obligations of any insurer (other than\nMAXIMUS and its affiliated entities, including with respect to self-insurance) under any insurance policy for\nevents, acts or omissions for directors or officers of MAXIMUS and its affiliated entities; and (vi) my\nright\nto\nall\nearned but unpaid base salary through the Termination Date, any earned but unpaid incentive compensation,\nreimbursement for any unreimbursed expenses in accordance with MAXIMUS's business expense\nreimbursement policy as well as any accrued and vested benefits to which I am entitled in accordance with the\nterms of MAXIMUS's various benefit plans, policies and programs. I understand that nothing in this Genera\nRelease prohibits me from reporting possible violations of federal law or regulation to any governmental\nagency or entity, including but not limited to the Department of J ustice, the Securities and Exchange\nCommission, the Congress, and any agency Inspector General, or making other disclosures that are protected\nunder the whistleblower provisions of federa law or regulation.\nunderstand that I shall continue to comply with any terms that expressly survive the termination of the\nEmployment Agreement. Likewise, any client non-disclosure agreements signed by me survive the\ntermination of my employment with MAXIMUS, and I shall comply with the terms of those agreements. I\nunderstand that I must have returned as of the Termination Date all originals and copies of MAXIMUS's\nConfidential Information and other property in my possession or under my control, and that I not make any\nwillful or malicious negative or disparaging remarks regarding the Releasees.\nOlder Worker Benefit Protection Act. In compliance with the Older Worker Benefit Protection Act ("OWBPA")\nand in providing a release I agree and acknowledge that: (a) I have read the terms of this General Release,\nunderstand its contents, and agree to the terms and conditions set forth in this General Release of my own\nfree will; (b) I have been advised orally and, by this document, in writing of my right to consult with legal\ncounsel prior to executing this General Release; (c) I do not rely on any statement or representation of\nMAXIMUS outside of the Employment Agreement and this document in entering into this General Release;\nand (d) I am not releasing rights or claims under the ADEA that arise after the date this General Release is\nexecuted.\nI understand that I shall have twenty-one (21) calendar days from the Termination Date (the "Consideration\nPeriod") within which to consider the terms and execute this General Release. I further understand\nthat\nalthough I may take all twenty-one (21) days to consider this General Release, I may execute and provide this\nGeneral Release sooner. I understand that this Genera Release must be signed no earlier than the\nTermination Date or later than twenty-one (21) days after the Termination Date.\nI acknowledge and understand that I may revoke this General Release within seven (7) calendar days of the\ndate on which I execute this document (the "Revocation Period"), and that should I wish to revoke this General\nRelease, the revocation must be in writing and must be delivered by hand or mail to the General Counsel of\nMAXIMUS within the Revocation Period. I understand that if I revoke by mail, the revocation must be\npostmarked within the Revocation Period, certified mail/return receipt requested, properly addressed as\nfollows:\nMAXIMUS, Inc.\nDavid R. Francis\nGeneral Counsel\n1891 Metro Center Drive\nReston, Virginia 20190\nI understand that if I wish to revoke by hand delivery, the revocation must be delivered to the person and\naddress stated above within the Revocation Period.\nI acknowledge that the Severance will not be paid until the Revocation Period has expired without me\nexercising my right of revocation. If I fail to sign and return this General Release by the end of the\nConsideration Period or if timely revoke it as provided herein, I shall have no right to the Severance.\nThis General Release shall be construed in accordance with Virginia law, without regard to any jurisdiction's\nprinciples of conflict of laws, except where federal law applies. I understand and agree that if MAXIMUS\nprevails on any action to enforce this General Release, MAXIMUS shall be entitled to recover its reasonable\nlegal fees and costs.\nIN WITNESS WHEREOF, I have executed this Genera Release as of the date set forth below.\nBRUCE L. CASWELL\nDate: Exhibit 10.1\nEXECUTIVE EMPLOYMENT, NON-COMPETE\nAND CONFIDENTIALITY AGREEMENT\nTHIS EXECUTIVE EMPLOYMENT, NON-COMPETE AND CONFIDENTIALITY AGREEMENT (this\n"Agreement"), is entered into as of the date set forth on the signature page (the “Execution Date”) by and\nbetween Bruce L. Caswell (the "Executive") and MAXIMUS, Inc., a Virginia corporation with its principal place\nof business in Reston, Virginia (the "Corporation") with reference to the following:\nWHEREAS, the parties entered into that certain Executive Employment, Non-Compete and\nConfidentiality Agreement effective on or about October 1, 2004, which was subsequently amended on\nNovember 20, 2007 (as amended, the “Prior Agreement”); and\nWHEREAS, the parties believe the Executive possesses the experience and capabilities to provide\nvaluable service on behalf of the Corporation; and\nWHEREAS, the Corporation desires to employ the Executive as its President and Chief Executive\nOfficer; and\nWHEREAS, the Executive desires to be employed by the Corporation at the salary, benefits and other\nterms and conditions specified herein.\nNOW, THEREFORE, in consideration of these premises and for other good and valuable\nconsideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:\n1.\nEmployment.\n1.1Duties. The Corporation hereby employs the Executive, and the Executive hereby accepts such\nemployment, to serve as the President and Chief Executive Officer. The Executive hereby represents and\nwarrants that he is in good health and capable of performing the services required hereunder. The Executive\nshall perform such services and duties as are appropriate to such office or delegated to the Executive by the\nCorporation’s Board of Directors (“Board”). During the term of this Agreement, the Executive shall be a\nfull-time employee of the Corporation and shall devote such time and attention to the discharge of his duties\nas may be necessary and appropriate to accomplish and complete such duties.\nThe Executive shall be nominated by the Board for election as a director and shall serve, without\nadditional compensation, as a member of the Board, subject to his being so elected by the Corporation's\nstockholders. The Executive agrees to obtain the consent of the Board, which consent may be withheld in the\nBoard’s sole discretion, before serving on the board of any other entity or organization.\n1.2Compensation.\n(a)Base Salary. As compensation for performance of his obligations hereunder, the Corporation\nshall pay the Executive an annual salary of $700,000 ("Base Salary"), such Base Salary to be\nreviewed annually beginning on or about October 1, 2018.\n(b)Management Bonus Program. The Executive will be eligible to participate in the\nCorporation's Management Bonus Program (“MBP”), with any awards dependent on the performance\nof the Executive and the Corporation. The target annual cash bonus for the Executive will be one\nhundred percent (100%) of annual Base Salary for accomplishing his annual goals.\n(c)Equity Awards. The Executive shall be eligible to receive awards under the 2017 Equity\nIncentive Plan or any successor plan (the “Equity Plan”) in the discretion of the Corporation's Board of\nDirectors, and shall also be entitled to participate in stock option and similar plans as currently exist or\nmay be established by the Corporation from time to time. The target annual equity award for the\nExecutive will be three hundred seventy-five percent (375%) of annual Base Salary. The Corporation\nagrees to proportionately adjust the Executive’s vested and unvested equity awards in the event the\nCorporation declares an extraordinary dividend during the term hereof. For these purposes, an\n“extraordinary dividend” would be any distribution per share having a value in excess of ten percent\n(10%) of the average trading price of the Corporation’s common stock during the three-month period\npreceding such distribution. Any Restricted Stock Units or other equity awards made to the Executive\non or after the Effective Date, shall vest according to their stated vesting schedules (or pursuant to the\nacceleration feature in connection with a Change of Control) unless the Executive is terminated for\nCause or voluntarily resigns his employment without Good Reason in which case any unvested\nawards shall be forfeited as of the effective date of termination.\nFor purposes of this Agreement, the terms “Cause,” “Change of Control” and “Good Reason” shall\nhave the meanings set forth in the Corporations Income Continuity Program (“ICP”) in effect as of the\nEffective Date.\n(d)Income Continuity Program. The Executive shall continue to be a Participant in the ICP. In\nthe event the ICP is subsequently amended or terminated, upon a qualifying termination of Executive’s\nemployment in connection with a Change of Control the Executive shall be entitled to receive the\ngreater of (i) the compensation and benefits payable under the ICP as it exists on the Effective Date or\n(ii) the compensation and benefits payable under any amended or successor program to the ICP.\n(e)Vacation, Insurance, Expenses, Etc. The Executive shall be entitled to vacation under the\nCorporation’s Executive Time Off policy, and such benefits, health, disability and life insurance and\nother benefits and expense reimbursements in a manner consistent with the Corporation's past\npractices and as are provided to the Corporation’s senior executives.\n(f)Insurance. The Corporation shall maintain the Executive as an insured party on all directors'\nand officers' insurance maintained by the Corporation for the benefit of its directors and officers on at\nleast the same basis as all other covered individuals and provide the Executive with at least the same\ncorporate indemnification as its officers.\n(g)Attorneys’ Fees. The Corporation shall reimburse the Executive for reasonable attorneys’\nfees incurred in connection with the review and negotiation of this Agreement within thirty (30) days\nfollowing the Execution Date, subject to prior submission of an invoice therefor.\n1.3Term; Termination. The term of the employment agreement set forth in this Section 1 shall be for a\nperiod commencing at the Effective Date and continuing for three (3) years thereafter (the "Scheduled Term").\nFollowing the Scheduled Term, the Agreement shall automatically renew for successive one-year terms (each\na “Renewal Term”) unless either party notifies the other of its desire to terminate the Agreement no less than\nthree (3) months before the expiration of the Scheduled Term or Renewal Term. Notwithstanding the\nforegoing, this Agreement shall terminate:\n(a)by mutual written consent of the parties;\n(b)upon Executive's death or inability, by reason of physical or mental impairment, to perform\nsubstantially all of Executive's duties as contemplated herein for a continuous period of 120 days or\nmore; or\n(c)by the Corporation for Cause.\nUpon any termination of employment under this Section 1.3, neither party shall have any obligation to\nthe other pursuant to this Section 1, but such termination shall have no effect on the obligations of the parties\nunder other provisions of this Agreement.\n“Effective Date” shall mean April 1, 2018. The Prior Agreement shall remain in full force and effect until\nthe Effective Date, at which time it shall automatically terminate without further action by the parties,\n1.4 Severance. The parties agree that in the event (i) the Corporation terminates the Executive's\nemployment without Cause, (ii) the Executive terminates the employment for Good Reason prior to the\nexpiration of the Scheduled Term or then-current Renewal Term, as applicable, or (iii) the Corporation elects\nnot to renew the Agreement for another term, the Executive shall be entitled to receive the following upon the\nexecution of a general release by the Executive in the form attached hereto as Exhibit A, which release shall\nbe executed and irrevocable within thirty (30) days of termination:\n(a)benefits, at the Corporation's expense, as provided under Section 1.2(e) for the greater of\nthe remainder of the current term of the Agreement or twelve (12) months. To the extent that these\npayments are not exempt from Section 409A of the Internal Revenue Code of 1986, as amended (the\n'Code') under the COBRA, reimbursement, in-kind benefit, or other applicable exceptions thereunder,\nsuch payments shall be made at the time and in the amount required under the documents governing\neach such benefit;\n(b)continued vesting of stock options and Restricted Stock Units in accordance with their stated\nterms; and\n(c) a lump sum, payable within forty-five (45) days following termination of employment, equal\nto the greater of (i) Base Salary for the remainder of the Scheduled Term or Renewal Term or (ii) two\ntimes the sum of the Executive's Base Salary plus the lesser of his target bonus or previous year's\nactual bonus, which lump sum shall be considered a separate payment for purposes of Section 409A\nof the Code. If the Executive's employment termination occurs in connection with a Change in Control,\nthe Executive shall be entitled to receive such payments and benefits as provided under the Income\nContinuity Plan, and this Section 1.4 shall not apply.\n2.\nRestrictions on Competition and Solicitation.\n2.1.Prohibited Activities.\na.The Executive agrees that, during his employment with the Corporation and for a period of\none (1) year after the termination of such employment for any reason, the Executive, anywhere in the\nUnited States or in any other country or jurisdiction where the Corporation conducts business as of the\ntime of such termination:\ni.will not whether as a principal, investor, owner, executive, consultant, independent\ncontractor, officer, director, board member, manager, partner, agent, or otherwise, alone or in\nassociation with any other person, firm, corporation, or business organization, work for,\nbecome employed by, engage in, carry on, provide services to, or assist in any manner\n(whether or not for compensation or gain) an entity in competition with the Corporation, where\nthe Executive’s position or service for such entity is competitive with any of the Executive’s\npositions or services that the Executive performed for the Corporation;\nii. will not contact any of the Corporation’s Customers or Potential Customers or solicit\nor induce (or attempt to solicit or induce) any of them to not conduct business with the\nCorporation, or to conduct business with or contract with any other person or entity instead of\nthe Corporation. For purposes of this Agreement, “Customers or Potential Customers”\nmeans all persons, companies, firms, or entities that have, within the twelve (12) months prior\nto the Executive’s termination of employment: (A) obtained the Corporation’s services, (B)\ncontacted the Corporation for the purpose of obtaining the Corporation’s services, or (C) been\nactively solicited by the Corporation for the purpose of providing its services; and for which the\nExecutive provided services or about which the Executive had access to and knowledge of\nproprietary information;\niii.will not, directly or indirectly, contact, solicit or induce (or attempt to solicit or induce)\nany of the Corporation Personnel to leave their employment with the Corporation or consider\nemployment with any other person or entity. For purposes of this Agreement, the “Corporation\nPersonnel” shall mean any employee or service provider of the Corporation who worked for the\nCorporation during Executive’s employment and with whom the Executive worked personally or\nknew personally or who was known by the Executive to have unique knowledge or skills that\ncould cause competitive harm to the Corporation;\niv. will not, directly or indirectly, hire or cause to be hired (or engage or cause to be\nengaged as an independent contractor) any such Corporation Personnel; and\nv.Executive agrees that the restrictions set forth in this Section 2.1, in light of the access\nto client, proprietary and other confidential information that the Corporation provides to\nExecutive, are reasonable and necessary in order to protect the legitimate business interests of\nthe Corporation. Executive agrees that the duration of the restrictions set forth in this paragraph\nshall be extended by the duration of any period in which Executive is in violation of any of those\nrestrictions. The existence of any other claim by Executive against the Corporation, whether\nbased on this Agreement or otherwise, will not constitute a defense to the enforcement of this\nAgreement by the Corporation.\nb.The Executive shall notify any new employer, partner, association or any other firm or\ncorporation in competition with the Corporation with whom the Executive shall become associated in\nany capacity whatsoever of the provisions of this Section 2 and the Executive agrees that the\nCorporation may give such notice to such firm, corporation or other person.\n2.2.Business Opportunities; Conflicts of Interest; Other Employment and Activities of the Executive.\na.The Executive agrees promptly to advise the Corporation of, and provide the Corporation with\nan opportunity to pursue, all business opportunities that reasonably relate to the present business\nconducted by the Corporation.\nb.The Executive, in his capacity as an employee of the Corporation, shall not engage in any\nbusiness with any member of the Executive's immediate family or with any person or business entity in\nwhich the Executive or any member of the Executive's immediate family has any ownership interest or\nfinancial interest, unless and until the Executive has first fully disclosed such interest to and received\nwritten consent from the Board of Directors. As used herein, the term "immediate family" means the\nExecutive's spouse, natural or adopted children, parents or siblings and the term "financial interest"\nmeans any relationship with such person or business entity that may monetarily benefit the Executive\nor member of the Executive's immediate family, including any lending relationship or the guarantying of\nany obligations of such person or business entity by the Executive or member of his immediate family.\nc.The parties hereto agree that the Executive may, consistent with this Section 2.2, receive and\nretain speaking fees, referral fees from business opportunities not accepted by the\nCorporation, and fees from outside business activities and opportunities of the Executive consented to\nby the Board of Directors.\n3.Confidentiality. The Executive agrees that the Corporation's books, records, files and all other non-public\ninformation relating to the Corporation, its business, clients and employees are proprietary in nature and\ncontain trade secrets and shall be held in strict confidence by the Executive, and shall not, either during the\nterm of this Agreement or after the termination hereof, be used by Executive or disclosed, directly or indirectly,\nto any third party, except to the extent such use or disclosure is in furtherance of the Corporation's business or\nrequired by any law, rule, regulation or other legal process. The trade secrets or other proprietary or\nconfidential information referred to in the prior sentence includes, without limitation, all proposals to clients or\npotential clients, contracts, client or potential client lists, fee policies, financial information, administration or\nmarketing practices or procedures and all other information regarding the business of the Corporation and its\nclients not generally known to the public.\n4.Miscellaneous.\n4.1.Notices. All notices, requests, demands or other communications provided for in this Agreement\nshall be in writing and shall be delivered by hand, sent prepaid by overnight delivery service or sent by the\nUnited States mail, certified, postage prepaid, return receipt request, to the following:\nIf to the Corporation:\nMAXIMUS, Inc.\n1891 Metro Center Drive\nReston, Virginia 20190\nAttention: General Counsel\nIf to the Executive:\nBruce L. Caswell\nWith a copy (not constituting notice) to:\nWilliams & Connolly LLP\n725 Twelfth Street, NW\nWashington, DC 20005\nAttention: Deneen C. Howell, Esq.\nAny notice, request, demand or other communication delivered or sent in the foregoing manner shall be\ndeemed given or made (as the case may be) upon the earliest of (i) the date it is actually received, (ii) the\nbusiness-day after the day on which it is delivered by hand, (iii) the business day after the day on which it is\nproperly delivered to Federal Express (or a comparable overnight delivery service), or (iv) the third business\nday after the date on which it is deposited in the United States mail. Either party may change its address by\nnotifying the other party of the new address in any manner permitted by this paragraph.\n4.2.Remedies. The parties agree and acknowledge that any violation by the Executive of the terms\nhereof may result in irreparable injury and damage to the Corporation or its clients, which may not adequately\nbe compensable in monetary damages, that the Corporation will have no adequate remedy at law therefor,\nand that the Corporation may obtain such preliminary, temporary or permanent mandatory or restraining\ninjunctions, orders or decrees as may be necessary to protect it against, or on account of, any breach of the\nprovisions contained in this Agreement.\n4.3.No Obligation of Continued Employment. The Executive understands that this Agreement does not\ncreate an obligation on the part of the Corporation to continue the Executive's employment with the\nCorporation after the expiration or termination of this Agreement.\n4.4.Benefit; Assignment. This Agreement shall bind and inure to the benefit of the parties and their\nrespective personal representatives, heirs, successors and assigns, provided this Agreement may not be\nassigned by either party without the consent of the other, except that the Corporation may assign this\nAgreement in connection with the merger, consolidation or sale of all or substantially all of its business or\nassets.\n4.5.Entire Agreement. This Agreement supersedes all previous agreements, written or oral, with\nrespect to the subject matter of this Agreement other than the Prior Agreement, which shall remain in full force\nand effect until the Effective Date.\n4.6.Severability. In the event that any one or more of the provisions contained herein shall be held to\nbe invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect\nany other provisions of this Agreement, and all other provisions shall remain in full force and effect. If any of\nthe provisions of this Agreement is held to be excessively broad, it shall be reformed and construed by limiting\nand reducing it so as to be enforceable to the maximum extent permitted by law.\n4.7.Waivers. No delay or omission by either party in exercising any right under this Agreement will\noperate as a waiver of that or any other right. A waiver or consent given by either party on any occasion is\neffective only in that instance and will not be construed as a bar to or waiver of any right on any other\noccasion.\n4.8.Captions. The captions of the various sections and paragraphs of this Agreement have been\ninserted only for the purpose of convenience; such captions are not a part of this Agreement and shall not be\ndeemed in any manner to modify, explain, enlarge or restrict any of the provisions of this Agreement.\n4.9.Governing Law and Jurisdiction. This Agreement shall in all events and for all purposes be\ngoverned by, and construed in accordance with, the laws of the Commonwealth of Virginia. Any action or\nproceeding against the parties relating in any way to this Agreement must be brought and enforced in the\ncourts of Fairfax County, Virginia or the Eastern District of Virginia, and the parties irrevocably submit to the\njurisdiction of such courts in respect of any such action or proceeding.\n4.10.Amendments. No changes to this Agreement shall be binding unless in writing and signed by both\nthe parties.\n4.11 .Counterparts. This Agreement may be executed in several counterparts (including via facsimile\nand the electronic exchange of .pdf copies), each of which shall be deemed an original, and all such\ncounterparts shall constitute one instrument.\n4.12. Distributions to Specified Employees. Notwithstanding any provision to the contrary, to the\nextent the Executive is considered a specified employee under Section 409A of the Code and would be\nentitled to a payment during the six month period beginning on the Executive's date of termination that is not\notherwise excluded under Section 409A of the Code under the exceptions for short-term deferrals, separation\npay arrangements, reimbursements, in-kind distributions, or an otherwise applicable exemption, the payment\nwill not be made to the Executive until the earlier of the six month anniversary of the Executive's date of\ntermination or the Executive's death.\n4.13. Section 409A of the Code. It is the intention of the parties that this Agreement comply with and\nbe administered in accordance with Section 409A of the Code and the interpretive guidance thereunder,\nincluding the exceptions for short-term deferrals, separation pay arrangements, reimbursements, and in-\nkind distributions. The Agreement shall be construed and interpreted in accordance with such intent. To the\nextent such potential payments or benefits could become subject to such Section, the parties shall cooperate\nto amend this Agreement with the goal of giving the Executive the economic benefits described herein in a\nmanner that does not result in such tax being imposed. In the event that the Corporation does not so\ncooperate, the Corporation shall indemnify the Executive for any interest and additional tax arising from the\napplication of Section 409A of the Code, grossed-up for any other income tax incurred by Executive related to\nthe indemnification (i.e., indemnification of such additional income tax), assuming the highest marginal income\ntax rates apply to any taxable indemnification. Any indemnification payment shall be made within ninety (90)\ndays of the date Executive makes payment of the interest and/or additional tax.\nTHE EXECUTIVE HAS READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND THE\nEXECUTIVE UNDERSTANDS, AND AGREES TO, EACH OF SUCH PROVISIONS. THE EXECUTIVE\nUNDERSTANDS THAT THIS AGREEMENT MAY AFFECT THE EXECUTIVE'S RIGHT TO ACCEPT\nEMPLOYMENT WITH OTHER COMPANIES SUBSEQUENT TO THE EXECUTIVE'S EMPLOYMENT WITH\nTHE CORPORATION.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date set forth\nbelow.\nEXECUTIVE\nMAXIMUS, Inc.\n/s/ Bruce L. Caswell\nBy /s/ David R. Francis\nBruce L. Caswell\nDate January 10, 2018\nTitle General Counsel\nEXHIBIT A\nGENERAL RELEASE OF CLAIMS\nIn consideration of the Severance (“Severance”) to be provided to me under Section 1.4 of that certain\nExecutive Employment, Non-Compete and Confidentiality Agreement between me and MAXIMUS, Inc.\n(“MAXIMUS”) effective April 1, 2018 (the “Employment Agreement”), and intending to be legally bound, I\nagree as follows:\nGeneral Release and Waivers. I release MAXIMUS and its affiliated entities and their respective officers,\ndirectors, partners, owners, executives, contractors, clients, agents, representatives, administrators of any\nMAXIMUS benefit plan, predecessors, successors and assigns (the “Releasees”) from any and all individual\nor class action claims, actions, rights, demands, debts, damages, grievances or accountings of whatever\nnature, whether known or unknown, currently existing or arising in the future, that I have or may have against\nthe Releasees relating in any way to my employment with MAXIMUS or the termination thereof, including,\nwithout limitation, claims under the Age Discrimination in Employment Act, Older Workers Benefit Protection\nAct, Title VII of the Civil Rights Act of 1964, Worker Adjustment and Retraining Notification Act, Family and\nMedical Leave Act, Americans with Disabilities Act, Fair Credit Reporting Act, Sarbanes-Oxley Act,\nImmigration Reform and Control Act, Occupational Safety and Health Act, and all other federal, state or local\nlaws or any other statute, rule, regulation or executive order precluding discrimination or retaliation in\nemployment, claims for breach of contract, wrongful discharge, personal injuries or torts, defamation, and all\nother claims whether known or unknown, arising through the date of execution of this General Release of\nClaims (“General Release”) by me, excepting only those matters set forth in this General Release.\nExcluded from this General Release are: (i) any claim or right which cannot be waived by law, including\nwithout limitation, all claims arising after the date of this Agreement, claims for unemployment compensation,\nand claims for worker compensation benefits; (ii) claims under the Fair Labor Standards Act; (iii) the right to\nfile a charge with or participate in an investigation conducted by an administrative agency, provided I am\nwaiving, however, any right to any monetary recovery if any administrative agency pursues any claim or\nclaims on my behalf with the exception of monetary recovery for Securities and Exchange Commission claims;\n(iv) any indemnification obligations of MAXIMUS to me pertaining to the period prior to the date of my\ntermination of employment (“Termination Date”) in my capacity as a director or officer under the articles of\nincorporation, by-laws or other organizational documents of MAXIMUS and its affiliated entities; (v) to the\nextent pertaining to the period prior to the Termination Date, the obligations of any insurer (other than\nMAXIMUS and its affiliated entities, including with respect to self-insurance) under any insurance policy for\nevents, acts or omissions for directors or officers of MAXIMUS and its affiliated entities; and (vi) my right to all\nearned but unpaid base salary through the Termination Date, any earned but unpaid incentive compensation,\nreimbursement for any unreimbursed expenses in accordance with MAXIMUS’s business expense\nreimbursement policy as well as any accrued and vested benefits to which I am entitled in accordance with the\nterms of MAXIMUS’s various benefit plans, policies and programs. I understand that nothing in this General\nRelease prohibits me from reporting possible violations of federal law or regulation to any governmental\nagency or entity, including but not limited to the Department of Justice, the Securities and Exchange\nCommission, the Congress, and any agency Inspector General, or making other disclosures that are protected\nunder the whistleblower provisions of federal law or regulation.\nI understand that I shall continue to comply with any terms that expressly survive the termination of the\nEmployment Agreement. Likewise, any client non-disclosure agreements signed by me survive the\ntermination of my employment with MAXIMUS, and I shall comply with the terms of those agreements. I\nunderstand that I must have returned as of the Termination Date all originals and copies of MAXIMUS’s\nConfidential Information and other property in my possession or under my control, and that I not make any\nwillful or malicious negative or disparaging remarks regarding the Releasees.\nOlder Worker Benefit Protection Act. In compliance with the Older Worker Benefit Protection Act (“OWBPA”)\nand in providing a release I agree and acknowledge that: (a) I have read the terms of this General Release,\nunderstand its contents, and agree to the terms and conditions set forth in this General Release of my own\nfree will; (b) I have been advised orally and, by this document, in writing of my right to consult with legal\ncounsel prior to executing this General Release; (c) I do not rely on any statement or representation of\nMAXIMUS outside of the Employment Agreement and this document in entering into this General Release;\nand (d) I am not releasing rights or claims under the ADEA that arise after the date this General Release is\nexecuted.\nI understand that I shall have twenty-one (21) calendar days from the Termination Date (the “Consideration\nPeriod”) within which to consider the terms and execute this General Release. I further understand that\nalthough I may take all twenty-one (21) days to consider this General Release, I may execute and provide this\nGeneral Release sooner. I understand that this General Release must be signed no earlier than the\nTermination Date or later than twenty-one (21) days after the Termination Date.\nI acknowledge and understand that I may revoke this General Release within seven (7) calendar days of the\ndate on which I execute this document (the “Revocation Period”), and that should I wish to revoke this General\nRelease, the revocation must be in writing and must be delivered by hand or mail to the General Counsel of\nMAXIMUS within the Revocation Period. I understand that if I revoke by mail, the revocation must be\npostmarked within the Revocation Period, certified mail/return receipt requested, properly addressed as\nfollows:\nMAXIMUS, Inc.\nDavid R. Francis\nGeneral Counsel\n1891 Metro Center Drive\nReston, Virginia 20190\nI understand that if I wish to revoke by hand delivery, the revocation must be delivered to the person and\naddress stated above within the Revocation Period.\nI acknowledge that the Severance will not be paid until the Revocation Period has expired without me\nexercising my right of revocation. If I fail to sign and return this General Release by the end of the\nConsideration Period or if timely revoke it as provided herein, I shall have no right to the Severance.\nThis General Release shall be construed in accordance with Virginia law, without regard to any jurisdiction’s\nprinciples of conflict of laws, except where federal law applies. I understand and agree that if MAXIMUS\nprevails on any action to enforce this General Release, MAXIMUS shall be entitled to recover its reasonable\nlegal fees and costs.\nIN WITNESS WHEREOF, I have executed this General Release as of the date set forth below.\nBRUCE L. CASWELL\nDate: 52aaf701a2c24c940628e155dabacdbf.pdf effective_date jurisdiction party EXHIBIT 10.42\nEMPLOYEE\nCONFIDENTIALITY, INVENTION ASSIGNMENT\nAND NON-COMPETE AGREEMENT\nTHIS EMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON-COMPETE AGREEMENT (“Agreement”) is made as of the date set forth on the signature page below between Inspire Pharmaceuticals, Inc.\n(“Inspire”), and the person whose name is set forth on the signature page below as Employee (“Employee”).\nIn consideration of Employee’s employment or continued employment by Inspire, with the intention that this Agreement shall apply to the entire period of Employee’s employment with Inspire (including the period prior to the date of this\nAgreement), Employee hereby agrees as follows:\n1. CONFIDENTIAL INFORMATION DEFINED. “Confidential Information” means trade secrets, proprietary information and materials, and confidential knowledge and information which includes, but is not limited to, matters of a technical\nnature (such as discoveries, ideas, concepts, designs, drawings, specifications, techniques, models, diagrams, test data, scientific methods and know-how, and materials such as reagents, substances, chemical compounds, subcellular\nconstituents, cell or cell lines, organisms and progeny, and mutants, derivatives or replications derived from or relating to any of the foregoing materials), and matters of a business nature (such as the identity of customers and prospective\ncustomers, the nature of work being done for or discussed with customers or prospective customers, suppliers, marketing techniques and materials, marketing and development plans, pricing or pricing policies, financial information, plans\nfor further development, and any other information of a similar nature not available to the public).\n“Confidential Information” shall not include information that: (a) was in Employee’s possession or in the public domain before receipt from the Company, as evidenced by the then existing publication or other public dissemination of such\ninformation in written or other documentary form; (b) becomes available to the public through no fault of Employee; (c) is received in good faith by Employee from a third party who is not subject to an obligation of confidentiality to the\nCompany or any other party; or (d) is required by a judicial or administrative authority or court having competent jurisdiction to be disclosed by Employee, provided that Employee shall promptly notify the Company and allow the\nCompany a reasonable time to oppose or limit such order.\n2. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF INSPIRE. Employee acknowledges that, during the period of Employee’s employment with Inspire, Employee has had or will have access to Confidential Information of Inspire.\nTherefore, Employee agrees that both during and after the period of Employee’s employment with Inspire, Employee shall not, without the prior written approval of Inspire, directly or indirectly (a) reveal, report, publish, disclose or\ntransfer any Confidential Information of Inspire to any person or entity, or (b) use any Confidential Information of Inspire for any purpose or for the benefit of any person or entity, except as may be necessary in the performance of\nEmployee’s work for Inspire.\n3. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF OTHERS. Employee acknowledges that, during the period of Employee’s employment with Inspire, Employee may have had or will\n-1-\nhave access to Confidential Information of third parties who have given Inspire the right to use such Confidential Information, subject to a non-disclosure agreement between Inspire and such third party. Therefore, Employee agrees that\nboth during and after the period of Employee’s employment with Inspire, Employee shall not, without the prior written approval of Inspire, directly or indirectly (a) reveal, report, publish, disclose or transfer any Confidential Information\nof such third parties to any person or entity, or (b) use any Confidential Information of such third parties for any purpose or for the benefit of any person or entity, except as may be necessary in the performance of Employee’s work for\nInspire.\n4. PROPERTY OF INSPIRE. Employee acknowledges and agrees that all Confidential Information of Inspire and all reports, drawings, blueprints, materials, data, code, notes and other documents and records, whether printed, typed,\nhandwritten, videotaped, transmitted or transcribed on data files or on any other type of media, and whether or not labeled or identified as confidential or proprietary, made or compiled by Employee, or made available to Employee, during\nthe period of Employee employment with Inspire (including the period prior to the date of this Agreement) concerning Inspire’s Confidential Information are and shall remain Inspire’s property and shall be delivered to Inspire within five\n(5) business days after the termination of such employment with Inspire or at any earlier time on request of Inspire. Employee shall not retain copies of such Confidential Information, documents and records.\n5. PROPRIETARY NOTICES. Employee shall not, and shall not permit any other person to, remove any proprietary or other legends or restrictive notices contained in or included in any Confidential Information.\n6. INVENTIONS.\n(a) Employee shall promptly, from time to time, fully inform and disclose to Inspire in writing all inventions, copyrightable material, designs, improvements and discoveries of any kind which Employee now has made, conceived or\ndeveloped (including prior to the date of this Agreement), or which Employee may later make, conceive or develop, during the period of Employee’s employment with Inspire, which pertain to or relate to Inspire’s business or any of the\nwork or businesses carried on by Inspire (“Inventions”). This covenant applies to all such Inventions, whether or not they are eligible for patent, copyright, trademark, trade secret or other legal protection; and whether or not they are\nconceived and/or developed by Employee alone or with others; and whether or not they are conceived and/or developed during regular working hours; and whether or not they are conceived and/or developed at Inspire’s facility or not.\n(b) Inventions shall not include any inventions made, conceived or developed by Employee prior to Employee’s employment with Inspire, a complete list of which is set forth on Schedule A attached.\n(c) All Inventions shall be the sole and exclusive property of Inspire, and shall be deemed part of the Confidential Information of Inspire for purposes of this Agreement, whether or not fixed in a tangible medium of expression. Employee\nhereby assigns all Employee’s rights in all Inventions and in all related patents, copyrights and trademarks, trade secrets and other proprietary rights therein to Inspire. Without limiting the foregoing, Employee agrees that any\ncopyrightable material shall be deemed to be “works made for hire” and that Inspire shall be deemed the author of such works under the United States Copyright Act, provided that in the event and to the extent such works are determined\nnot to constitute “works made for hire”, Employee hereby irrevocably assigns and transfers to Inspire all right, title and interest in such works.\n-2-\n(d) Employee shall assist and cooperate with Inspire, both during and after the period of Employee’s employment with Inspire, at Inspire’s sole expense, to allow Inspire to obtain, maintain and enforce patent, copyright, trademark, trade\nsecret and other legal protection for the Inventions. Employee shall sign such documents, and do such things necessary, to obtain such protection and to vest Inspire with full and exclusive title in all Inventions against infringement by\nothers. Employee hereby appoints the Secretary of Inspire as Employee’s attorney-in-fact to execute documents on Employee’s behalf for this purpose.\n(e) Employee shall not be entitled to any additional compensation for any and all Inventions made during the period of Employee’s employment with Inspire.\n7. COVENANT NOT TO COMPETE. If Employee is, at any time during Employee’s period of employment with Inspire, employed in the discovery or development areas of the Company in a non-clerical position, or as a director level or higher\nlevel senior manager of the Company, then this Section 7 shall apply. Employee and Inspire agree that the services rendered by the Employee are unique and irreplaceable, and that competitive use and knowledge of any Confidential\nInformation would substantially and irreparably injure Inspire’s business, prospects and good will. Employee and Inspire also agree that Inspire’s business is global in nature due to the type of products and/or services being provided.\nTherefore, Employee agrees that during the period of Employee’s employment with Inspire and for a period of one (1) year thereafter, Employee shall not, directly or indirectly, through any other person, firm, corporation or other entity\n(whether as an officer, director, employee, partner, consultant, holder of equity or debt investment, lender or in any other manner or capacity):\n(a) develop, sell, market, offer to sell products and/or services anywhere in the world that have the same or similar technological approach or technology platform (e.g., same receptors (such as P2Y), same mechanism of action (such as\nmucociliary clearance)) as those being developed, offered or sold by Inspire on the date of the termination of Employee’s employment with Inspire for any reason;\n(b) solicit, induce, encourage or attempt to induce or encourage any employee or consultant of Inspire to terminate his or her employment or consulting relationship with Inspire, or to breach any other obligation to Inspire;\n(c) solicit, interfere with, disrupt, alter or attempt to disrupt or alter the relationship, contractual or otherwise, between Inspire and any consultant, contractor, customer, potential customer, or supplier of Inspire; or\n(d) engage in or participate in any business in the same industry as Inspire which is conducted under any name that shall be the same as or similar to the name of Inspire or any trade name used by Inspire.\nEmployee acknowledges that the foregoing geographic, activity and time limitations contained in this Section 7 are reasonable and properly required for the adequate protection of Inspire’s business. In the event that any such geographic,\nactivity or time limitation is deemed to be unreasonable by a court, Employee shall submit to the reduction of either said activity or time limitation to such activity or period as the court shall deem reasonable. In the event that Employee is\nin violation of the aforementioned restrictive covenants, then the time limitation thereof shall be extended for a period of time equal to the pendency of such proceedings, including appeals.\n-3-\n8. REPRESENTATIONS. Employee represents that Employee has the right to enter into this Agreement, and that Employee’s performance of all the terms of this Agreement and his duties as an employee of Inspire will not breach any\nconfidential information agreement, non-competition agreement or other agreement with any former employer of his services, either as an employee, consultant, contractor or independent contractor, or with any other party. Employee\nrepresents that Employee will not disclose to Inspire any trade secrets or confidential or proprietary information of any third party that are not generally available to the public.\n9. DISCLOSURE OF THIS AGREEMENT. Employee hereby authorizes Inspire to notify others, including but not limited to customers of Inspire and any of Employee’s future employers, of the terms of this Agreement and Employee’s\nresponsibilities under this Agreement.\n10. SPECIFIC PERFORMANCE. Employee acknowledges that money damages alone would not adequately compensate Inspire in the event of a breach or threatened breach by Employee of this Agreement, and that, in addition to all other\nremedies available to Inspire at law or in equity, Inspire shall be entitled to injunctive relief for the enforcement of its rights and to an accounting of profits made during the period of such breach.\n11. NO RIGHTS GRANTED. Employee understands that nothing in this Agreement shall be deemed to constitute, by implication or otherwise, the grant by Inspire to the employee of any license or other right under any patent, patent\napplication or other intellectual property right or interest belonging to Inspire.\n12. SEVERABILITY.\n(a) Each of the covenants provided in this Agreement are separate and independent covenants. If any provision of this Agreement shall be determined to be invalid or unenforceable, the remainder of this Agreement shall not be affected\nthereby and any such invalid or unenforceable provision shall be reformed so as to be valid and enforceable to the fullest extent permitted by law.\n(b) It is not a defense to the enforcement of any provision of this Agreement that Inspire has breached or failed to perform any obligation or covenant hereunder or under any other agreement or understanding between Employee and\nInspire.\n13. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina without regard to conflict of law rules. All suits and claims shall be made only in state or federal courts\nlocated in North Carolina.\n14. SUPERSEDES OTHER AGREEMENTS. This Agreement contains the entire agreement of the parties with respect to subject matter hereof and supersedes all previous agreements and understandings between the parties with respect to its\nsubject matter.\n15. AMENDMENTS. This Agreement may not be changed, modified, released, discharged, abandoned or otherwise terminated in whole or in part except by an instrument in writing, agreed to and signed by the Employee and a duly\nauthorized officer of Inspire.\n16. ACKNOWLEDGEMENTS. THE EMPLOYEE ACKNOWLEDGES THAT (i) THE EMPLOYEE HAS READ AND FULLY UNDERSTANDS THIS AGREEMENT; (ii) THE EMPLOYEE HAS BEEN GIVEN THE OPPORTUNITY TO\nASK QUESTIONS; (iii) THE\n-4-\nEMPLOYEE HAS RECEIVED A COPY OF THIS AGREEMENT, THE ORIGINAL OF WHICH WILL BE RETAINED IN THE EMPLOYEE’S PERSONNEL FILE; AND (iv) THE EMPLOYEE’S OBLIGATIONS UNDER THIS\nAGREEMENT SURVIVE THE TERMINATION OF THE EMPLOYEE’S EMPLOYMENT WITH INSPIRE FOR ANY REASON .\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth below.\nINSPIRE PHARMACEUTICALS, INC.\n4222 Emperor Boulevard\nDurham, North Carolina 27703\nBy:\n/s/ Christy L. Shaffer\nChristy L. Shaffer, Ph.D .,\nChief Executive Officer\nEMPLOYEE:\nBarry G. Pea\n(Print Name)\n/s/ Barry G. Pea\n(Signature Here)\nDate:\n10/11/04\nAddress:\n137 New Castle Drive\nChapel Hill, NC 27517\n-5-\nSCHEDULE A\nPRIOR INVENTIONS\n-6- EXHIBIT 10.42\nEMPLOYEE\nCONFIDENTIALITY, INVENTION ASSIG NMENT\nAND NON-COMPETE AGREEMENT\nTHIS EMPLOY EE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON-COMPETE AGREEMENT ("Agreement") is made as of the date set forth on the signature page below between Inspire Pharmaceuticals, Inc.\n("Inspire"), and the person whose name is set forth on the signature page below as Employee ("Employee").\nIn consideration of Employee’s employment or continued employment by Inspire, with the intention that this Agreement shall apply to the entire period of Employee’s employment with Inspire (including the period prior to the date of this\nAgreement), Employee hereby agrees as follows:\n1. CONFIDENTIAL INFORMATION DEFINED. "Confidential Information" means trade secrets, proprietary information and materials, and confidential knowledge and information which includes, but is not limited to, matters of a technical\nnature (such as discoveries, ideas, concepts, designs, drawings, specifications, techniques, models, diagrams, test dam, scientific methods and know-how, and materials such as reagents, substances, chemical compounds, subcellular\nconstituents, cell or cell lines, organisms and progeny, and mutants, derivatives or replications derived from or relating to any of the foregoing materials), and matters of a business nature (such as the identity of customers and prospective\ncustomers, the nature of work being done for or discussed with customers or prospective customers, suppliers, marketing techniques and materials, marketing and development plans, pricing or pricing policies, financial information, plans\nfor further development, and any other information of a similar nature not available to the public).\n”Confidential Information" shall not include information that (a) was in Employee’s possession or in the public domain before receipt from the Company, as evidenced by the then existing publication or other public dissemination of such\ninformation in written or other documenmry form,- (b) becomes available to the public through no fault of Employee; (c) is received in good faith by Employee from a third party who is not subject to an obligation of confidentiality to the\nCompany or any other party; or (d) is required by a judicial or administrative authority or court having competent jurisdiction to be disclosed by Employee, provided that Employee shall promptly notify the Company and allow the\nCompany a reasonable time to oppose or limit such order.\n2. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF INSPIRE. Employee acknowledges that, during the period of Employee's employment with Inspire, Employee has had or will have access to Confidential Information of Inspire.\nTherefore, Employee agrees that both during and after the period of Employee's employment with Inspire, Employee shall not, without the prior written approval of Inspire, directly or indirectly (a) reveal, report, publish, disclose or\ntransfer any Confidential Information of Inspire to any person or entity, or (b) use any Confidential Information of Inspire for any purpose or for the benefit of any person or entity, except as may be necessary in the performance of\nEmployee’s work for Inspire.\n3. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF OTHERS. Employee acknowledges that, during the period of Employee's employment with Inspire, Employee may have had or will\n—\nhave access to Confidential Information of third parties who have given Inspire the right to use such Confidential Information, subject to a non-disclosure agreement between Inspire and such third party. Therefore, Employee agrees that\nboth during and after the period of Employee’s employment with Inspire, Employee shall not, without the prior written approval of Inspire, directly or indirectly (a) reveal, report, publish, disclose or tiansfer any Confidential Information\nof such third parties to any person or entity, or (b) use any Confidential Information of such third parties for any purpose or for the benefit of any person or entity, except as may be necessary in the performance of Employee’s work for\nInspire.\n4. PROPERTY OF INSPIRE. Employee acknowledges and agrees that all Confidential Information of Inspire and all repom, drawings, blueprints, materials, data, code, notes and other documents and records, whether printed, typed,\nhandwritten, videotaped, transmitted or tianscribed on data files or on any other type of media, and whether or not labeled or identified as confidential or proprietary, made or compiled by Employee, or made available to Employee, during\nthe period of Employee employment with Inspire (including the period priorto the date of this Agreement) conceming Inspire’s Confidential Information are and shall remain Inspire’s property and shall be delivered to Inspire within five\n(5) business days after the termination of such employment with Inspire or at any earlier time on request of Inspire. Employee shall not retain copies of such Confidential Information, documents and records\n5. PROPRIETARY NOTICES. Employee shall not, and shall not permit any other person to, remove any proprietary or other legends or restrictive notices conmined in orincluded in any Confidential Information.\n6. INVENTIONS.\n(a) Employee shall promptly, from time to time, fully inform and disclose to Inspire in writing all inventions, copyrightable material, designs, improvements and discoveries of any kind which Employee now has made, conceived or\ndeveloped (including priorto the date of this Agreement), or which Employee may later make, conceive or develop, during the period of Employee’s employment with Inspire, which pertain to or relate to Inspire' 5 business or any of the\nwork or businesses carried on by Inspire ("Inventions"). This covenant applies to all such Inventions, whether or not they are eligible for patent, copyright, trademark, tiade secret or other legal protection; and whether or not they are\nconceived and/or developed by Employee alone or with others; and whether or not they are conceived and/or developed during regular working hours; and whether or not they are conceived and/or developed at Inspire’s facility or not.\n(b) Inventions shall not include any inventions made, conceived or developed by Employee priorto Employee’s employment with Inspire, a complete list of which is set forth on Schedule A attached.\n(c) All Inventions shall be the sole and exclusive property of Inspire, and shall be deemed part of the Confidential Information of Inspire for purposes of this Agreement, whether or not fixed in a tangible medium of expression Employee\nhereby assigns all Employee's rights in all Inventions and in all related patents, copyrights and trademarks, trade secrets and other proprietary rights therein to Inspire Without limiting the foregoing, Employee agrees that any\ncopyrightable material shall be deemed to be "works made for hire” and that Inspire shall be deemed the author of such works under the United States Copyright Act, provided that in the event and to the extent such works are determined\nnot to constitute ”works made for hire”, Employee hereby irrevocably assigns and transfers to Inspire all right, title and interest in such works.\n—\n(d) Employee shall assist and cooperate with Inspire, both during and after the period of Employee’s employment with Inspire, at Inspire’s sole expense, to allow Inspire to obmin, maintain and enforce patent, copyright, trademark, tiade\nsecret and other legal protection for the Inventions. Employee shall sign such documents, and do such things necessary, to obtain such protection and to vest Inspire with full and exclusive title in all Inventions against infringement by\nothers Employee hereby appoints the Secretary of Inspire as Employee’s attomey-in-fact to execute documents on Employee’s behalf for this purpose\n(e) Employee shall not be entitled to any additional compensation for any and all Inventions made during the period of Employee's employment with Inspire.\n7‘ COVENANT NOT TO COMPETEI If Employee is, at any time during Employee’s period of employment with Inspire, employed in the discovery or development areas of the Company in a non-clerical position, or as a director level or higher\nlevel senior manager of the Company, then this Section 7 shall apply. Employee and Inspire agree that the services rendered by the Employee are unique and irreplaceable, and that competitive use and knowledge of any Confidential\nInformation would substantially and irreparably injure Inspire's business, prospects and good will. Employee and Inspire also agree that Inspire’s business is global in nature due to the type of products and/or services being provided.\nTherefore, Employee agrees that during the period of Employee’s employment with Inspire and for a period of one (1) year thereafter, Employee shall not, directly or indirectly, through any other person, firm, corporation or other entity\n(whether as an officer, director, employee, partner, consultant, holder of equity or debt investment, lender or in any other manner or capacity):\n(a) develop, sell, market, offer to sell products and/or services anywhere in the world that have the same or similar technological approach or technology platform (egr, same receptors (such as P2Y ), same mechanism of action (such as\nmucociliary clearance)) as those being developed, offered or sold by Inspire on the date of the termination of Employee's employment with Inspire for any reason;\n(b) solicit, induce, encourage or attempt to induce or encourage any employee or consultant of Inspire to terminate his or her employment or consulting relationship with Inspire, or to breach any other obligation to Inspire;\n(c) solicit, interfere with, disrupt, alter or attempt to disrupt or alter the relationship, contractual or otherwise, between Inspire and any consultant, contiactor, customer, potential customer, or supplier of Inspire; or\n(d) engage in or participate in any business in the same industry as Inspire which is conducted under any name that shall be the same as or similar to the name of Inspire or any trade name used by Inspire\nEmployee acknowledges that the foregoing geographic, activity and time limitations contained in this Section 7 are reasonable and properly required for the adequate protection of Inspire’s business. In the event that any such geographic,\nactivity or time limitation is deemed to be unreasonable by a court, Employee shall submit to the reduction of either said activity or time limimtion to such activity or period as the court shall deem reasonable In the event that Employee is\nin violation of the aforementioned restrictive covenants, then the time limimtion thereof shall be extended for a period of time equal to the pendency of such proceedings, including appeals.\n8. REPRESENTATIONS Employee represents that Employee has the right to enter into this Agreement, and that Employee’s performance of all the terms of this Agreement and his duties as an employee of Inspire will not breach any\nconfidential information agreement, non-competition agreement or other agreement with any former employer of his services, either as an employee, consultant, contractor orindependent contractor, or with any other party. Employee\nrepresents that Employee will not disclose to Inspire any trade secrets or confidential or proprietary information of any third party that are not generally available to the public.\n9. DISCLOSURE OF THIS AGREEMENT. Employee hereby authorizes Inspire to notify others, including but not limited to customers of Inspire and any of Employee's future employers, of the terms of this Agreement and Employee’s\nresponsibilities under this A greement.\n10. SPECIFIC PERFORMANCE. Employee acknowledges that money damages alone would not adequame compensate Inspire in the event of a breach or threatened breach by Employee of this Agreement, and that, in addition to all other\nremedies available to Inspire at law or in equity, Inspire shall be entitled to injunctive relief for the enforcement of its rights and to an accounting of profits made during the period of such breach.\n11. No RIGHTS GRANTED. Employee undersmnds that nothing in this Agreement shall be deemed to constitute, by implication or otherwise, the grant by Inspire to the employee of any license or other right under any patent, patent\napplication or other intellectual property right or interest belonging to Inspire.\n12. SEVERARILITY.\n(a) Each of the covenants provided in this Agreement are separate and independent covenants. If any provision of this Agreement shall be determined to be invalid or unenforceable, the remainder of this Agreement shall not be affected\nthereby and any such invalid or unenforceable provision shall be reformed so as to be valid and enforceable to the fullest extent permitted by law.\n(b) It is not a defense to the enforcement of any provision of this Agreement that Inspire has breached or failed to perform any obligation or covenant hereunder or under any other agreement or undersmnding between Employee and\nnspire.\n3. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina without regard to conflict of law rules All suits and claims shall be made only in smte or federal coum\nocated in North Carolina.\n4. SUPERSEDES OTHER AGREEMENTS. This Agreement contains the entire agreement of the parties with respect to subject matter hereof and supersedes all previous agreements and understandings between the parties with respect to its\nsubject matter.\n5. AMENDMENTs. This Agreement may not be changed, modified, released, discharged, abandoned or otherwise terminated in whole or in part except by an instrument in writing, agreed to and signed by the Employee and a duly\nauthorized officer of Inspire.\n \n6 ACKNOWLEDGEMENTS. THE EMPLOYEE ACKNOWLEDGES THAT (1) THE EMPLOYEE HAS READ AND FULLY UNDERSTANDS THIS AGREEMENT; (ii) THE EMPLOYEE HAS BEEN GIVEN THE OPPORTUNITY TO\nASK QUESTIONS; (iii) THE\n—\nEMPLOYEE HAS RECEIVED A COPY OF THIS AGREEMENT. THE ORIGINAL OF WHICH WILL BE RETAINED IN THE EMPLOYEE’S PERSONNEL FILE; AND (iv) THE EMPLOYEE’S OBLIGATIONS UNDER THIS\nAGREEMENT SURVIVE THE TERMINATION OF THE EMPLOYEE’S EMPLOYMENT WITH INSPIRE FOR ANY REASON.\nIN WITNESS WHEREOF. the pam'es have executed this Agieement as of the date set forth below.\nINSPIRE PHARMACEUTICALS. INC.\n4222 Emperor Boulevard\nDurham, North Camlina 27703\nBy: [3/ Christy L. Shaffer\nChief Execufive Officer\nEMPLOYEE: Bany G. Pea\nP1111 Name\n/5/ Bany G. Pea\nigna ere\nDate: 10/11/04\nAddiess: 137 New Castle Drive\nChapel Hill. NC 27517\n—\nW\nPRIOR INVENTIO NS EXHIBIT 10.42\nEMPLOYEE\nCONFIDENTIALITY INVENTION ASSIGNMENT\nAND NON-COMPETE AGREEMENT\nTHIS EMPLOY EE CONFIDENTIALITY INVENTION A SSIGNMENT AND NON-COMPETE AGREEMENT ("Agreement") is made as of the date set forth on the signature page below between Inspire Pharmaceuticals, Inc.\n("Inspire"), and the person whose name is set forth on the signature page below as Employee ("Employee").\nIn\nconsideration of Employee's employment or continued employment by Inspire, with the intention that this Agreement shall apply to the entire period of Employee's employment with Inspire (including the period prior to the date of this\nAgreement), Employee hereby agrees as follows:\n1.\nCONFIDENTIAL INFORMATION DEFINED. "Confidential Information" means trade secrets, proprietary information and materials, and confidential knowledge and information which includes, bu is not limited to, matters of a technical\nnature (such as discoveries, ideas, concepts, designs, drawings, specifications techniques, models diagrams, test data, scientific methods and know-how, and materials such as reagents substances, chemical compounds, subcellular\nconstituents, cel or cel lines, organisms and progeny, and mutants, derivatives or replications derived from or relating to any of the foregoing materials), and matters of a business nature (such as the identity of customers and prospective\ncustomers, the nature of work being done for or discussed with customers or prospective customers, suppliers, marketing techniques and materials, marketing and development plans, pricing or pricing policies, financial information, plans\nfor further development, and any other information of a similar nature not available to the public).\n"Confidential Information" shall not include information that: (a) was in Employee's possession or in the public domain before receipt from the Company, as evidenced by the then existing publication or other public dissemination of such\ninformation in written or other documentary form; (b) becomes available to the public through no fault of Employee; (c) is received in good faith by Employee from a third party who is not subject to an obligation of confidentiality to the\nCompany or any other party; or (d) is required by a judicial or administrative authority or court having competent jurisdiction to be disclosed by Employee, provided that Employee shall promptly notify the Company and allow the\nCompany a reasonable time to oppose or limit such order.\n2. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF INSPIRE. Employee acknowledges that during the period of Employee's employment with Inspire, Employee has had or will have access to Confidential Information of Inspire.\nTherefore, Employee agrees that both during and after the period of Employee's employment with Inspire, Employee shall not without the prior written approval of Inspire, directly or indirectly (a) reveal, report, publish disclose or\ntransfer any Confidential Information of Inspire to any person or entity, or (b) use any Confidential Information of Inspire for any purpose or for the benefit of any person or entity except as may be necessary in the performance of\nEmployee's work for Inspire.\n3.\nNON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF OTHERS. Employee acknowledges that, during the period of Employee's employment with Inspire, Employee may have had or will\n-1-\nhave access to Confidential Information of third parties who have given Inspire the right to use such Confidential Information, subject to a non-disclosure agreement between Inspire and such third party. Therefore, Employee agrees that\nboth during and after the period of Employee's employment with Inspire, Employee shall not without the prior written approval of Inspire, directly or indirectly (a) reveal, report publish, disclose or transfer any Confidential Information\nof such third parties to any person or entity, or (b) use any Confidential Information of such third parties for any purpose or for the benefi of any person or entity, except as may be necessary in the performance of Employee's work for\nInspire.\n4. PROPERTY OF INSPIRE Employee acknowledges and agrees that all Confidentia Information of Inspire and all reports, drawings, blueprints, materials data, code, notes and other documents and records, whether printed typed,\nhandwritten, videotaped, transmitted or transcribed on data files or on any other type of media, and whether or not labeled or identified as confidential or proprietary, made or compiled by Employee, or made available to Employee during\nthe period of Employee employment with Inspire (including the period prior to the date of this Agreement) conceming Inspire's Confidential Information are and shall remain Inspire's property and shall be delivered to Inspire within five\n(5) business days after the termination of such employment with Inspire or at any earlier time on request of Inspire. Employee shall not retain copies of such Confidential Information, documents and records.\n5. PROPRIETARY NOTICES. Employee shall not, and shall not permi any other person to, remove any proprietary or other legends or restrictive notices contained in or included in any Confidential Information.\n6. NVENTIONS.\n(a)\nEmployee shall promptly, from time to time, fully inform and disclose to Inspire in writing all inventions, copyrightable material, designs, improvements and discoveries of any kind which Employee now has made, conceived or\ndeveloped (including prior to the date of this Agreement), or which Employee may later make, conceive or develop, during the period of Employee's employment with Inspire, which pertain to or relate to Inspire's business or any of the\nwork or businesses carried on by Inspire ("Inventions") This covenant applies to all such Inventions whether or not they are eligible for patent, copyright, trademark trade secret or other legal protection; and whether or not they are\nconceived and/or developed by Employee alone or with others; and whether or not they are conceived and/or developed during regular working hours; and whether or not they are conceived and/or developed at Inspire's facility or not.\n(b) Inventions shall not include any inventions made, conceived or developed by Employee prior to Employee's employment with Inspire, a complete list of which is set forth on Schedule A attached.\n(c) All Inventions shall be the sole and exclusive property of Inspire, and shall be deemed par of the Confidential Information of Inspire for purposes of this A greement, whether or not fixed in a tangible medium of expression. Employee\nhereby assigns all Employee's rights in all Inventions and in all related patents, copyrights and trademarks, trade secrets and other proprietary rights therein to Inspire. Without limiting the foregoing, Employee agrees that any\ncopyrightable material shall be deemed to be "works made for hire" and that Inspire shall be deemed the author of such works under the United States Copyright Act, provided that in the event and to the extent such works are determined\nnot to constitute "works made for hire" Employee hereby irrevocably assigns and transfers to Inspire all right title and interest in such works.\n-2-\n(d) Employee shall assist and cooperate with Inspire, both during and after the period of Employee's employment with Inspire, at Inspire's sole expense, to allow Inspire to obtain, maintain and enforce patent, copyright, trademark trade\nsecret and other legal protection for the Inventions. Employee shall sign such documents, and do such things necessary, to obtain such protection and to vest Inspire with full and exclusive title in all Inventions agains infringement by\nothers. Employee hereby appoints the Secretary of Inspire as Employee's attomey-in-fact to execute documents on Employee's behalf for this purpose.\n(e) Employee shall not be entitled to any additional compensation for any and all Inventions made during the period of Employee's employment with Inspire.\n7.\nCOVENANT NOT TO COMPETE. If Employee is, at any time during Employee's period of employment with Inspire, employed in the discovery or development areas of the Company in a non-clerical position, or as a director level or higher\nleve senior manager of the Company, then this Section 7 shall apply. Employee and Inspire agree that the services rendered by the Employee are unique and ireplaceable and that competitive use and knowledge of any Confidential\nInformation would substantially and irreparably injure Inspire's business, prospects and good will. Employee and Inspire also agree that Inspire's business is global in nature due to the type of products and/or services being provided\nTherefore, Employee agrees that during the period of Employee's employment with Inspire and for a period of one (1) year thereafter, Employee shall not directly or indirectly, through any other person firm, corporation or other entity\n(whether as an officer, director, employee partner, consultant, holder of equity or debt investment, lender or in any other manner or capacity):\n(a) develop, sell, market, offer to sel products and/or services anywhere in the world that have the same or similar technological approach or technology platform (e.g. same receptors (such as P2Y), same mechanism of action (such as\nmucociliary clearance)) as those being developed offered or sold by Inspire on the date of the termination of Employee's employment with Inspire for any reason;\n(b) solicit induce encourage or attempt to induce or encourage any employee or consultant of Inspire to terminate his or her employment or consulting relationship with Inspire, or to breach any other obligation to Inspire;\n(c) solicit, interfere with disrupt, alter or attempt to disrupt or alter the relationship, contractual or otherwise between Inspire and any consultant, contractor, customer, potential customer, or supplier of Inspire; or\n(d) engage in or participate in any business in the same industry as Inspire which is conducted under any name that shal be the same as or similar to the name of Inspire or any trade name used by Inspire.\nEmployee acknowledges that the foregoing geographic, activity and time limitations contained in this Section 7 are reasonable and properly required for the adequate protection of Inspire' business In the event that any such geographic,\nactivity or time limitation is deemed to be unreasonable by a court Employee shall submit to the reduction of either said activity or time limitation to such activity or period as the court shall deem reasonable. In the event that Employee is\nin violation of the aforementioned restrictive covenants, then the time limitation thereof shall be extended for a period of time equal to the pendency of such proceedings, including appeals.\n-3-\n8.\nREPRESENTATIONS Employee represents that Employee has the right to enter into this Agreement, and that Employee's performance of all the terms of this Agreement and his duties as an employee of Inspire will not breach any\nconfidential information agreement, on-competition agreement or other agreement with any former employer of his services, either as an employee consultant contractor or independent contractor, or with any other party. Employee\nrepresents that Employee will not disclose to Inspire any trade secrets or confidential or proprietary information of any third party that are not generally available to the public.\n9. DISCLOSURE OF THIS AGREEMENT. Employee hereby authorizes Inspire to notify others, including but not limited to customers of Inspire and any of Employee's future employers, of the terms of this A greement and Employee's\nresponsibilities under this Agreement.\n10. SPECIFIC PERFORMANCE. Employee acknowledges that money damages alone would not adequately compensate Inspire in the event of a breach or threatened breach by Employee of this Agreement, and that, in addition to all other\nremedies available to Inspire at law or in equity, Inspire shall be entitled to injunctive relief for the enforcement of its rights and to an accounting of profits made during the period of such breach.\n11. No RIGHTS GRANTED. Employee understands that nothing in this Agreement shall be deemed to constitute by implication or otherwise, the grant by Inspire to the employee of any license or other right under any patent patent\napplication or other intellectual property right or interest belonging to Inspire.\n12. SEVERABILITY.\n(a) Each of the covenants provided in this Agreement are separate and independent covenants. If any provision of this Agreement shall be determined to be invalid or unenforceable, the remainder of this Agreement shall not be affected\nthereby and any such invalid or unenforceable provision shall be reformed so as to be valid and enforceable to the fullest extent permitted by law.\n(b) It is not a defense to the enforcement of any provision of this Agreement that Inspire has breached or failed to perform any obligation or covenant hereunder or under any other agreement or understanding between Employee and\nInspire.\n13. GOVERNING LAW. This A greement shall be govemed by and construed in accordance with the laws of the State of North Carolina without regard to conflict of law rules All suits and claims shall be made only in state or federal courts\nlocated in North Carolina\n14. SUPERSEDES OTHER AGREEMENTS. This Agreement contains the entire agreement of the parties with respect to subject matter hereof and supersedes all previous agreements and understandings between the parties with respect to its\nsubject matter.\n15. AMENDMENTS. This Agreement may not be changed, modified, released discharged, abandoned or otherwise terminated in whole or in part except by an instrument in writing, agreed to and signed by the Employee and a duly\nauthorized officer of Inspire.\n16. ACKNOWLEDGEMENTS. THE EMPLOY E ACKNOWLEDGES THAT (i) THE EMPLOY EE HAS READ AND FULLY UNDERSTANDS THIS AGREEMENT; (ii) THE EMPLOY EI HAS BEEN GIVEN THE OPPORTUNITY TO\nASK QUESTIONS (iii) THE\n-4-\nEMPLOY EE HAS RECEIVED A COPY OF THIS AGREEMENT, THE ORIGINAL OF WHICH WILL BE RETAINED IN THE EMPLOYEE'S PERSONNEL FILE; AND (iv) THE EMPLOYEE'S OBLIGATIONS UNDER\nTHIS\nAGREEMENT SURVIVE THE TERMINATION OF THE EMPLOYEE'S EMPLOY MENT WITH INSPIRE FORANY REASON.\nIN WITNESS WHEREOF the parties have executed this Agreement as of the date set forth below.\nINSPIRE HARMACEUTICALS, INC.\n4222 Emperor Boulevard\nDurham, North Carolina 27703\nBy:\n/s/ Christy L. Shaffer\ncnnsty L. Snaner, PN.D.,\nChief Executive Officer\nEMPLOYEE\nBarry G. Pea\nPnnt Name\n/s/ Barry G. Pea\n(S1gnature Here)\nDate:\n10/11/04\nAddress:\n137 New Castle Drive\nChapel Hill, NC 27517\n-5-\nSCHEDULEA\nPRIOR INVENTIONS\n-6- EXHIBIT 10.42\nEMPLOYEE\nCONFIDENTIALITY, INVENTION ASSIGNMENT\nAND NON-COMPETE AGREEMENT\nTHIS EMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON-COMPETE AGREEMENT (“Agreement”) is made as of the date set forth on the signature page below between Inspire Pharmaceuticals, Inc.\n(“Inspire”), and the person whose name is set forth on the signature page below as Employee (“Employee”).\nIn consideration of Employee’s employment or continued employment by Inspire, with the intention that this Agreement shall apply to the entire period of Employee’s employment with Inspire (including the period prior to the date of this\nAgreement), Employee hereby agrees as follows:\n1. CONFIDENTIAL INFORMATION DEFINED. “Confidential Information” means trade secrets, proprietary information and materials, and confidential knowledge and information which includes, but is not limited to, matters of a technical\nnature (such as discoveries, ideas, concepts, designs, drawings, specifications, techniques, models, diagrams, test data, scientific methods and know-how, and materials such as reagents, substances, chemical compounds, subcellular\nconstituents, cell or cell lines, organisms and progeny, and mutants, derivatives or replications derived from or relating to any of the foregoing materials), and matters of a business nature (such as the identity of customers and prospective\ncustomers, the nature of work being done for or discussed with customers or prospective customers, suppliers, marketing techniques and materials, marketing and development plans, pricing or pricing policies, financial information, plans\nfor further development, and any other information of a similar nature not available to the public).\n“Confidential Information” shall not include information that: (a) was in Employee’s possession or in the public domain before receipt from the Company, as evidenced by the then existing publication or other public dissemination of such\ninformation in written or other documentary form; (b) becomes available to the public through no fault of Employee; (c) is received in good faith by Employee from a third party who is not subject to an obligation of confidentiality to the\nCompany or any other party; or (d) is required by a judicial or administrative authority or court having competent jurisdiction to be disclosed by Employee, provided that Employee shall promptly notify the Company and allow the\nCompany a reasonable time to oppose or limit such order.\n2. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF INSPIRE. Employee acknowledges that, during the period of Employee’s employment with Inspire, Employee has had or will have access to Confidential Information of Inspire.\nTherefore, Employee agrees that both during and after the period of Employee’s employment with Inspire, Employee shall not, without the prior written approval of Inspire, directly or indirectly (a) reveal, report, publish, disclose or\ntransfer any Confidential Information of Inspire to any person or entity, or (b) use any Confidential Information of Inspire for any purpose or for the benefit of any person or entity, except as may be necessary in the performance of\nEmployee’s work for Inspire.\n3. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF OTHERS. Employee acknowledges that, during the period of Employee’s employment with Inspire, Employee may have had or will\n-1-\nhave access to Confidential Information of third parties who have given Inspire the right to use such Confidential Information, subject to a non-disclosure agreement between Inspire and such third party. Therefore, Employee agrees that\nboth during and after the period of Employee’s employment with Inspire, Employee shall not, without the prior written approval of Inspire, directly or indirectly (a) reveal, report, publish, disclose or transfer any Confidential Information\nof such third parties to any person or entity, or (b) use any Confidential Information of such third parties for any purpose or for the benefit of any person or entity, except as may be necessary in the performance of Employee’s work for\nInspire.\n4. PROPERTY OF INSPIRE. Employee acknowledges and agrees that all Confidential Information of Inspire and all reports, drawings, blueprints, materials, data, code, notes and other documents and records, whether printed, typed,\nhandwritten, videotaped, transmitted or transcribed on data files or on any other type of media, and whether or not labeled or identified as confidential or proprietary, made or compiled by Employee, or made available to Employee, during\nthe period of Employee employment with Inspire (including the period prior to the date of this Agreement) concerning Inspire’s Confidential Information are and shall remain Inspire’s property and shall be delivered to Inspire within five\n(5) business days after the termination of such employment with Inspire or at any earlier time on request of Inspire. Employee shall not retain copies of such Confidential Information, documents and records.\n5. PROPRIETARY NOTICES. Employee shall not, and shall not permit any other person to, remove any proprietary or other legends or restrictive notices contained in or included in any Confidential Information.\n6. INVENTIONS.\n(a) Employee shall promptly, from time to time, fully inform and disclose to Inspire in writing all inventions, copyrightable material, designs, improvements and discoveries of any kind which Employee now has made, conceived or\ndeveloped (including prior to the date of this Agreement), or which Employee may later make, conceive or develop, during the period of Employee’s employment with Inspire, which pertain to or relate to Inspire’s business or any of the\nwork or businesses carried on by Inspire (“Inventions”). This covenant applies to all such Inventions, whether or not they are eligible for patent, copyright, trademark, trade secret or other legal protection; and whether or not they are\nconceived and/or developed by Employee alone or with others; and whether or not they are conceived and/or developed during regular working hours; and whether or not they are conceived and/or developed at Inspire’s facility or not.\n(b) Inventions shall not include any inventions made, conceived or developed by Employee prior to Employee’s employment with Inspire, a complete list of which is set forth on Schedule A attached.\n(c) All Inventions shall be the sole and exclusive property of Inspire, and shall be deemed part of the Confidential Information of Inspire for purposes of this Agreement, whether or not fixed in a tangible medium of expression. Employee\nhereby assigns all Employee’s rights in all Inventions and in all related patents, copyrights and trademarks, trade secrets and other proprietary rights therein to Inspire. Without limiting the foregoing, Employee agrees that any\ncopyrightable material shall be deemed to be “works made for hire” and that Inspire shall be deemed the author of such works under the United States Copyright Act, provided that in the event and to the extent such works are determined\nnot to constitute “works made for hire”, Employee hereby irrevocably assigns and transfers to Inspire all right, title and interest in such works.\n-2-\n(d) Employee shall assist and cooperate with Inspire, both during and after the period of Employee’s employment with Inspire, at Inspire’s sole expense, to allow Inspire to obtain, maintain and enforce patent, copyright, trademark, trade\nsecret and other legal protection for the Inventions. Employee shall sign such documents, and do such things necessary, to obtain such protection and to vest Inspire with full and exclusive title in all Inventions against infringement by\nothers. Employee hereby appoints the Secretary of Inspire as Employee’s attorney-in-fact to execute documents on Employee’s behalf for this purpose.\n(e) Employee shall not be entitled to any additional compensation for any and all Inventions made during the period of Employee’s employment with Inspire.\n7. COVENANT NOT TO COMPETE. If Employee is, at any time during Employee’s period of employment with Inspire, employed in the discovery or development areas of the Company in a non-clerical position, or as a director level or higher\nlevel senior manager of the Company, then this Section 7 shall apply. Employee and Inspire agree that the services rendered by the Employee are unique and irreplaceable, and that competitive use and knowledge of any Confidential\nInformation would substantially and irreparably injure Inspire’s business, prospects and good will. Employee and Inspire also agree that Inspire’s business is global in nature due to the type of products and/or services being provided.\nTherefore, Employee agrees that during the period of Employee’s employment with Inspire and for a period of one (1) year thereafter, Employee shall not, directly or indirectly, through any other person, firm, corporation or other entity\n(whether as an officer, director, employee, partner, consultant, holder of equity or debt investment, lender or in any other manner or capacity):\n(a) develop, sell, market, offer to sell products and/or services anywhere in the world that have the same or similar technological approach or technology platform (e.g., same receptors (such as P2Y), same mechanism of action (such as\nmucociliary clearance)) as those being developed, offered or sold by Inspire on the date of the termination of Employee’s employment with Inspire for any reason;\n(b) solicit, induce, encourage or attempt to induce or encourage any employee or consultant of Inspire to terminate his or her employment or consulting relationship with Inspire, or to breach any other obligation to Inspire;\n(c) solicit, interfere with, disrupt, alter or attempt to disrupt or alter the relationship, contractual or otherwise, between Inspire and any consultant, contractor, customer, potential customer, or supplier of Inspire; or\n(d) engage in or participate in any business in the same industry as Inspire which is conducted under any name that shall be the same as or similar to the name of Inspire or any trade name used by Inspire.\nEmployee acknowledges that the foregoing geographic, activity and time limitations contained in this Section 7 are reasonable and properly required for the adequate protection of Inspire’s business. In the event that any such geographic,\nactivity or time limitation is deemed to be unreasonable by a court, Employee shall submit to the reduction of either said activity or time limitation to such activity or period as the court shall deem reasonable. In the event that Employee is\nin violation of the aforementioned restrictive covenants, then the time limitation thereof shall be extended for a period of time equal to the pendency of such proceedings, including appeals.\n-3-\n8. REPRESENTATIONS. Employee represents that Employee has the right to enter into this Agreement, and that Employee’s performance of all the terms of this Agreement and his duties as an employee of Inspire will not breach any\nconfidential information agreement, non-competition agreement or other agreement with any former employer of his services, either as an employee, consultant, contractor or independent contractor, or with any other party. Employee\nrepresents that Employee will not disclose to Inspire any trade secrets or confidential or proprietary information of any third party that are not generally available to the public.\n9. DISCLOSURE OF THIS AGREEMENT. Employee hereby authorizes Inspire to notify others, including but not limited to customers of Inspire and any of Employee’s future employers, of the terms of this Agreement and Employee’s\nresponsibilities under this Agreement.\n10. SPECIFIC PERFORMANCE. Employee acknowledges that money damages alone would not adequately compensate Inspire in the event of a breach or threatened breach by Employee of this Agreement, and that, in addition to all other\nremedies available to Inspire at law or in equity, Inspire shall be entitled to injunctive relief for the enforcement of its rights and to an accounting of profits made during the period of such breach.\n11. NO RIGHTS GRANTED. Employee understands that nothing in this Agreement shall be deemed to constitute, by implication or otherwise, the grant by Inspire to the employee of any license or other right under any patent, patent\napplication or other intellectual property right or interest belonging to Inspire.\n12. SEVERABILITY.\n(a) Each of the covenants provided in this Agreement are separate and independent covenants. If any provision of this Agreement shall be determined to be invalid or unenforceable, the remainder of this Agreement shall not be affected\nthereby and any such invalid or unenforceable provision shall be reformed so as to be valid and enforceable to the fullest extent permitted by law.\n(b) It is not a defense to the enforcement of any provision of this Agreement that Inspire has breached or failed to perform any obligation or covenant hereunder or under any other agreement or understanding between Employee and\nInspire.\n13. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina without regard to conflict of law rules. All suits and claims shall be made only in state or federal courts\nlocated in North Carolina.\n14. SUPERSEDES OTHER AGREEMENTS. This Agreement contains the entire agreement of the parties with respect to subject matter hereof and supersedes all previous agreements and understandings between the parties with respect to its\nsubject matter.\n15. AMENDMENTS. This Agreement may not be changed, modified, released, discharged, abandoned or otherwise terminated in whole or in part except by an instrument in writing, agreed to and signed by the Employee and a duly\nauthorized officer of Inspire.\n16. ACKNOWLEDGEMENTS. THE EMPLOYEE ACKNOWLEDGES THAT (i) THE EMPLOYEE HAS READ AND FULLY UNDERSTANDS THIS AGREEMENT; (ii) THE EMPLOYEE HAS BEEN GIVEN THE OPPORTUNITY TO\nASK QUESTIONS; (iii) THE\n-4-\nEMPLOYEE HAS RECEIVED A COPY OF THIS AGREEMENT, THE ORIGINAL OF WHICH WILL BE RETAINED IN THE EMPLOYEE’S PERSONNEL FILE; AND (iv) THE EMPLOYEE’S OBLIGATIONS UNDER THIS\nAGREEMENT SURVIVE THE TERMINATION OF THE EMPLOYEE’S EMPLOYMENT WITH INSPIRE FOR ANY REASON .\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth below.\nINSPIRE PHARMACEUTICALS, INC.\n4222 Emperor Boulevard\nDurham, North Carolina 27703\nBy:\n/s/ Christy L. Shaffer\nChristy L. Shaffer, Ph.D .,\nChief Executive Officer\nEMPLOYEE:\nBarry G. Pea\n(Print Name)\n/s/ Barry G. Pea\n(Signature Here)\nDate:\n10/11/04\nAddress:\n137 New Castle Drive\nChapel Hill, NC 27517\n-5-\nSCHEDULE A\nPRIOR INVENTIONS\n-6- 52d16f549c8c3f0b2a1ebab40576f4dc.pdf jurisdiction party EX-10 .14 2 ex10-14 .txt EX-10.14 28 EXHIBIT V NONDISCLOSURE AGREEMENT THIS AGREEMENT (the "Agreement"), is made as of , 2000, (the "Effective\nDate") by and between JDA SOFTWARE, INC. , a n Arizona corporation ("JDA") and COMPUWARE CORPORATION, a Michigan corporation ("Compuware").\nRECITALS 1. In connection with the evaluation or pursuit of certain mutually beneficial business opportunities, JDA and Compuware may disclose valuable\nproprietary information to each other relating to their respective operations and businesses. 2. JDA and Compuware would like to protect the confidentiality of,\nmaintain their respective rights in and prevent the unauthorized use and disclosure of such information. AGREEMENT JDA and Compuware hereby agree: 1.\nCONFIDENTIAL INFORMATION. As used in this Agreement, "Confidential Information" means all information of either party that is not generally known to the\npublic, whether of a technical, business or other nature (including, without limitation, trade secrets, know-how and information relating to the technology, software,\ndesigns, specifications and prototypes, customers, business plans, promotional and marketing activities, finances and other business affairs of such party), that is\ndisclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party"), and that has been identified as being proprietary and/or confidential or\nthat by the nature of the circumstances surrounding the disclosure ought to be treated as propriety and confidential. Confidential Information also includes all\ninformation concerning the existence and progress of the parties' dealings. 2 . USE OF CONFIDENTIAL INFORMATION . The Receiving Party, except as\nexpressly provided in this Agreement, will not disclose it to anyone without the Disclosing Party's prior written consent. The Receiving Party will not use, or permit\nother to use, Confidential Information for any purpose other than to pursue discussion and evaluation of potential business dealings between the parties in\naccordance with the nature of discussions between the parties. The Receiving Party will take all reasonable measures to avoid disclosure, dissemination or\nunauthorized use of Confidential Information, including, at a minimum, those measures it takes to protect its own confidential information of a similar nature. 3 .\nEXCEPTIONS. The provisions of Section 2 will not apply to any information that (i) is or becomes publicly available without breach of this Agreement; (ii) can be\nshown by documentation to have been known to the Receiving Party at the time of its receipt from the Disclosing Party; (iii) is rightfully received from a third party\nwho did not acquire or disclose such information by a wrongful or tortuous act; or (iv) can be shown by documentation to have been independently developed by\nthe Receiving Party without reference to any Confidential information. 4 . RECEIVING PARTY PERSONNEL. The Receiving Party will restrict the possession,\nknowledge, development and use of Confidential Information to its employees, agents, subcontractors and entities controlled by or controlling it (collectively,\n"Personnel") who have a need to know Confidential Information in connection with the purposes set forth in Section 2. The Receiving Party's Personnel will have\naccess only to the Confidential Information they need for such purposes. The Receiving Party will ensure that its personnel comply with this Agreement. 5 .\nDISCLOSURES TO GOVERNMENTAL ENTITIES. If the Receiving Party becomes legally obligated to disclose Confidential Information by any governmental\nentity with jurisdiction over it, the Receiving Party will give the Disclosing Party prompt written notice sufficient to allow the Disclosing Party to seek a protective\norder or other appropriate remedy. The Receiving Party will disclose only such information as is legally required and will use its reasonable best efforts to obtain\nconfidential treatment for any Confidential Information that is so disclosed. - 28 - 29 6 . OWNERSHIP OF CONFIDENTIAL INFORMATION . All Confidential\nInformation will remain the exclusive property of the Disclosing Party, and the Receiving Party will have no rights, by license or otherwise, to use the confidential\nInformation except as expressly provided herein. 7. RETURN OF CONFIDENTIAL INFORMATION . Upon the Disclosing Party's written request, the Receiving\nParty promptly will return all tangible material embodying Confidential Information (in any form and including, without limitation, all summaries, copies and\nexcerpts of Confidential Information). 8 GOVERNING LAW; ETC. This Agreement will be governed by internal laws of the State of Arizona, without reference to\nits choice of law rules, and may be executed in counterpart copies. If a provision of this Agreement is held invalid under any applicable law, such invalidity will not\naffect any other provision of this Agreement that can be given effect without the invalid provision. All terms and conditions of this Agreement will be deemed\nenforceable to the fullest extent permissible under applicable law, and, when necessary, the court is requested to reform any and all terms or conditions to give\nthem such effect. Further, the venue for arbitration or litigation will be in Phoenix, Arizona, and the parties consent to such jurisdiction. 9. NONWAIVER . Any\nfailure by either to enforce the other party's strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce\nsuch provision or any other provision of this Agreement. 10. TERMINATION . This Agreement will terminate automatically upon the completion or termination of\ndealings between JDA and Compuware; provided, however, that each party's obligations with respect to the other party's Confidential Information will survive\ncompletion or termination of the dealings between the parties. 11. EXPORTATION/TRANSMISSION OF CONFIDENTIAL INFORMATION. The Receiving Party\nacknowledges that the Confidential Information and any related materials or information provided hereunder are subject to the export control laws and regulations\nof the U.S ., and any amendments thereof. The Receiving Party confirms that it will not export or re-export these items, directly or indirectly, either to (i) any\ncountries that are subject to U.S. export restrictions (currently including, but not necessarily limited to, Cuba, the Federal Republic of Yugoslavia (Serbia and\nMontenegro), Iran, Iraq, Libya, North Korea, and Syria); and (ii) any development production of nuclear, chemical or biological weapons; or (iii) any third party who\nhas been prohibited from participating in the U.S. export transactions by any federal agency of the U.S . government. 12. INDEPENDENT DEVELOPMENT. The\nDisclosing Party acknowledges that the Receiving Party may currently or in the future be developing information internally, or receiving information from other\nparties, that is similar to the Confidential Information. Accordingly, nothing in this Agreement will be construed as a representation or agreement that the\nReceiving Party will not develop or have developed for its products, concepts, systems or techniques that are similar to or compete with products, concepts,\nsystems or techniques contemplated by or embodied in the Confidential Information, provided that the Receiving Party does not violate any of its obligations\nunder this Agreement in connection with such development. 13. INJUNCTIVE RELIEF. The Receiving Party acknowledges that disclosure or use of Confidential\nInformation in violation of this Agreement could cause irreparable harm to the Disclosing Party for which monetary damages may be difficult to ascertain or an\ninadequate remedy. The Receiving Party therefore agrees that the Disclosing Party will have the right, in addition to its other rights and remedies, to seek\ninjunctive relief for any violation of this Agreement. 14 . LIMITED RELATIONSHIP . This Agreement will not create a joint venture, partnership or other formal\nbusiness relationship or entity of any kind, or an obligation to form any such relationship or entity. Each party will act as an independent contractor and not as an\nagent of the other party for any purpose, and neither will have the authority to bind the other. - 29 - 30 15. CUMULATIVE OBLIGATIONS . Each party's obligations\nhereunder are in addition to, and not exclusive of, any and all of its other obligations and duties to the other party, whether express, implied, and in fact or in law.\n16 INTEGRATION/PURCHASE ORDER. This Agreement constitutes the entire agreement between the parties with respect to the Confidential Information and\nsupersedes all previous proposals (both oral and written), negotiations, representations, commitments, writings, agreements, and all other communications\nbetween the parties. This Agreement may only be altered or modified by written instrument duly executed by both parties. In the event of any conflict between the\nterms and conditions of this Agreement and the terms and conditions of any purchase order, the terms and conditions of this Agreement will control. The\nundersigned represent that they are duly authorized representatives of the parties and have full authority to bind the parties, including any indicated affiliates of\nthe parties, by execution of this Agreement. The parties have executed and delivered this Agreement, and it will be effective as of the Effective Date.\nCOMPUWARE CORPORATION JDA SOFTWARE, INC . Signature____________________________ Signature____________________________\nName_________________________________ Name_________________________________ Title________________________________\nTitle________________________________ Date_________________________________ Date_________________________________ - 30 - EX-10.14 2 ex10-l4.txt EX-10.14 28 EXHIBIT V NONDISCLOSURE AGREEMENT THIS AGREEMENT (the "Agreement"), is made as of, 2000, (the "Effective\nDate") by and between) DA SOFTWARE, INC., an Arizona corporation ("J DA") and COMPUWARE CORPORATION, a Michigan corporation ("Compuware").\nREC ITALS 1. In connection with the evaluation or pursuit of certain mutually beneficial business opportunities,J DA and Compuware may disclose valuable\nproprietary information to each olher relating to their respective operations and businesses. 2.) DA and Compuware would like to protectthe confidentiality of,\nmaintain Iheir respective rights in and preventthe unaulhorized use and disclosure ofsuch information. AGRE EME NT I DA and Compuware hereby agree: 1.\nCONFIDENTIAL IN FORMATION. As used in this Agreement, "Confidential Information" means all information ofeither party that is notgenerally known to Ihe\npublic, whether of a technical, business or other nature (including, without limitation, trade secreIs, know-how and information relating to Ihe technology, software,\ndesigns, specifications and prototypes, customers, business plans, promotional and marketing activities, finances and olher business affairs of such party), Ihat is\ndisclosed by one party (Ihe "Disclosing Party") to the other party (Ihe "Receiving Party"), and that has been identified as being proprietary and/or confidential or\nIhat by the nature of the circumstances surrounding Ihe disclosure oughtto be treated as propriety and confidential. Confidential Information also includes all\ninformation concerning Ihe existence and progress ofthe parties' dealings. 2. USE OF CONFIDE NTIAL INFORMATION. The Receiving Party, except as\nexpressly provided in this Agreement, will not disclose it to anyone withoutthe Disclosing Party's prior written consent. The Receiving Party will not use, or permit\nother to use, Confidential Information for any purpose other Ihan to pursue discussion and evaluation of potential business dealings between the parties in\naccordance with the nature ofdiscussions between the parties. The Receiving Party will take all reasonable measures to avoid disclosure, dissemination or\nunauthorized use ofConfidential Information, including, at a minimum, those measures it takes to protect its own confidential information of a similar nature. 3.\nEXC E PTIONS. The provisions of Section 2 will not apply to any information Ihat (i) is or becomes publicly available wiIhout breach of Ihis Agreement; (ii) can be\nshown by documentation to have been known to the Receiving Party at Ihe time of its receipt from Ihe Disclosing Party; (iii) is rightfully received from a third party\nwho did not acquire or disclose such information by a wrongful or tortuous act; or (iv) can be shown by documentation to have been independently developed by\nIhe Receiving Party without reference to any Confidential information. 4. REC E IVING PARTY P E RSONN E L. The Receiving Party will restrictthe possession,\nknowledge, development and use of Confidential Information to its employees, agents, subcontractors and entities controlled by or controlling it (collectively,\n"Personnel") who have a need to know Confidential Information in connection wiIh Ihe purposes set foth in Section 2. The Receiving Party's Personnel will have\naccess only to the Confidential Information they need for such purposes. The Receiving Party will ensure that its personnel comply with this Agreement. 5.\nDISC LOSU RES TO GOVE RN ME NTAL E NTITIES. If Ihe Receiving Party becomes legally obligated to disclose Confidential Information by any governmental\nentity wiIh jurisdiction over it, the Receiving Party will give the Disclosing Party prompt written notice sufficient to allow the Disclosing Party to seek a protective\norder or other appropriate remedy. The Receiving Party will disclose only such information as is legally required and will use its reasonable bestef‘forls to obtain\nconfidential treatment for any Confidential Information that is so disclosed. -28- 29 6. OW N E RS HIP OF CON FIDE NTIAL IN FOR MATION. All Confidential\nInformation will remain the exclusive property of the Disclosing Party, and Ihe Receiving Party will have no rights, by license or oIhenNise, to use the confidential\nInformation except as expressly provided herein. 7. RETURN OF CONFIDE NTIAL INFORMATION. Upon Ihe Disclosing Party's written request, the Receiving\nParty promptly will return all tangible material embodying Confidential Information (in any form and including, without limitation, all summaries, copies and\nexcerpIs ofConfidential Information). 8 GOVERNING LAW; ETC. This Agreementwill be governed by internal laws of the State ofArizona, wiIhout reference to\niIs choice of law rules, and may be executed in counterpart copies. If a provision of Ihis Agreement is held invalid under any applicable law, such invalidity will not\naffect any other provision of this Agreementthatcan be given effectwithout Ihe invalid provision. All terms and conditions of Ihis Agreementwill be deemed\nenforceable to the fullestextent permissible under applicable law, and, when necessary, the court is requested to reform any and all terms or conditions to give\nIhem such effect. Further, Ihe venue for arbitration or litigation will be in Phoenix, Arizona, and the parties consent to such jurisdiction. 9. NO NWAIVE R. Any\nfailure by eiIher to enforce Ihe other party's strict performance of any provision of Ihis Agreementwill not constitute a waiver of iIs rightto subsequently enforce\nsuch provision or any other provision ofthis Agreement. 10. TE RMINATION. This Agreement will terminate automatically upon the completion or termination of\ndealings betweenJ DA and Compuware; provided, however, Ihateach party's obligations with respectto the other party's Confidential Information will survive\ncompletion ortermination ofthe dealings between the parties. 11. EXPORTATION/TRANSMISSION OF CONFIDENTIAL INFORMATION. The Receiving Party\nacknowledges thatthe Confidential Information and any related materials or information provided hereunder are subject to the exportcontrol laws and regulations\nof Ihe US, and any amendments thereof. The Receiving Party confirms that it will not exportor re-exportthese items, directly or indirecij, eiIher to (i) any\ncountries thatare subject to US. export restrictions (currently including, but notnecessarily limited to, Cuba, the Federal Republic onugoslavia (Serbia and\nMontenegro), Iran, Iraq, Libya, North Korea, and Syria); and (ii) any developmentproduction of nuclear, chemical or biological weapons; or (iii) any third party who\nhas been prohibited from participating in the U .S. exporttransactions by any federal agency of Ihe US. government. 12. IN DEP E N DE NT DEVE LOP ME NT. The\nDisclosing Party acknowledges thatthe Receiving Party may currently or in the future be developing information internally, or receiving information from other\nparties, that is similar to Ihe Confidential Information. Accordingly, noIhing in this Agreementwill be construed as a representation or agreementthatthe\nReceiving Party will notdevelop or have developed for its products, concepts, systems or techniques Ihat are similar to or compete wiIh producIs, concepts,\nsystems or techniques contemplated by or embodied in Ihe Confidential Information, provided Ihat Ihe Receiving Party does not violate any of its obligations\nunder this Agreement in connection wiIh such development. 13. IN) U NCTIVE RELIEF. The Receiving Party acknowledges Ihatdisclosure or use ofConfidential\nInformation in violation of this Agreement could cause irreparable harm to Ihe Disclosing Party for which monetary damages may be difficult to ascertain or an\ninadequate remedy. The Receiving Party Iherefore agrees Ihatthe Disclosing Party will have Ihe right, in addition to its other rights and remedies, to seek\ninjunctive relieffor any violation of this Agreement. 14. LIMITE D RELATIONSHIP. This Agreement will notcreate a joint venture, partnership or other formal\nbusiness relationship or entity of any kind, or an obligation to form any such relationship or entity. Each party will act as an independentcontractor and not as an\nagent of the other party for any purpose, and neiIher will have Ihe authority to bind Ihe other. -29- 30 15. CUMU LATIVE OBLIGATIONS. Each party's obligations\nhereunder are in addition to, and notexclusive of, any and all of its olher obligations and duties to the other party, whether express, implied, and in fact or in law.\n16 INTEG RATION/PU RC HASE ORDE R. This Agreementconstitutes the entire agreement between the parties with respectto the Confidential Information and\nsupersedes all previous proposals (both oral and written), negotiations, representations, commitments, writings, agreements, and all olher communications\nbetween Ihe parties. This Agreement may only be altered or modified by written instrument duly executed by boIh parties. In the event of any conflict between the\nterms and conditions of Ihis Agreement and the terms and conditions of any purchase order, Ihe terms and conditions of Ihis Agreementwill control. The\nundersigned representthatthey are duly authorized representatives ofthe parties and have full authority to bind Ihe parties, including any indicated affiliates of\nIhe parties, by execution ofthis Agreement. The parties have executed and delivered Ihis Agreement, and itwill be effective as of the Effective Date.\nCOMPUWARE CORPORATION I DA SOFTWARE, INC. Signature Signature EX-10.14 ex10-14.b EX-10.14 28 EXHIBIT V NONDISCLOSURE AGREEMENT THIS AGREEMENT (the "Agreement"), is made as of 2000, (the "Effective\nDate") by and between DA SOFTWARE, INC., an Arizona corporation "JDA") and COMPUWARE CORPORATION, a Michigan corporation "Compuware").\nRECITALS 1. In connection with the evaluation or pursuit of certain mutually beneficial business opportunities, J DA and Compuware may disclose valuable\nproprietary information to each other relating to their respective operations and businesses. 2. DA and Compuware would like to protect the confidentiality of,\nmaintain their respective rights in and prevent the unauthorized use and disclosure of such information. AGREEMENT J DA and Compuware hereby agree: 1.\nCONFIDENTIAL NFORMATION. As used in this Agreement, Confidential Information" means all information of either party that is not generally known to the\npublic, whether of a technical, business or other nature (including, without limitation, trade secrets, know-how and information relating to the technology, software,\ndesigns, specifications and prototypes, customers, business plans, promotional and marketing activities, finances and other business affairs of such party), that is\ndisclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party"), and that has been identified as being proprietary and/or confidential or\nthat by the nature of the circumstances surrounding the disclosure ought to be treated as propriety and confidential. Confidential Information also includes all\ninformation concerning the existence and progress of the parties' dealings. 2. USE OF CONFIDENTIAL NFORMATION. The Receiving Party, except as\nexpressly provided in this Agreement, will not disclose it to anyone without the Disclosing Party's prior written consent. The Receiving Party will not use, or permit\nother to use, Confidential Information for any purpose other than to pursue discussion and evaluation of potential business dealings between the parties in\naccordance with the nature of discussions between the parties. The eceiving Party will take all reasonable measures to avoid disclosure, dissemination or\nunauthorized use of Confidential Information, including, at a minimum, those measures it takes to protect its own confidential information of a similar nature\n3.\nEXCEPTIONS. The provisions of Section 2 will not apply to any information that (i) is or becomes publicly available without breach of this Agreement; (ii) can be\nshown by documentation to have been known to the Receiving Party at the time of its receipt from the Disclosing Party; (iii) is rightfully received from a third party\nwho did not acquire or disclose such information by a wrongful or tortuous act; or (iv) can be shown by documentation to have been independently developed by\nthe Receiving arty without reference to any Confidentia information. 4. RECEIVING PARTY PERSONNEL. The Receiving Party will restrict the possession,\nknowledge, development and use of Confidential Information to its employees, agents, subcontractors and entities controlled by or controlling it (collectively,\n"Personnel") who have a need to know Confidential Information in connection with the purposes set forth in Section 2. The Receiving Party's Personnel will have\naccess only to the Confidentia Information they need for such purposes. The eceiving Party will ensure that its personnel comply with this Agreement. 5.\nDISCLOSURES TO GOVERNMENTAL ENTITIES. If the Receiving Party becomes legally obligated to disclose Confidential Information by any governmental\nentity with jurisdiction over it, the eceiving arty will give the Disclosing Party prompt written notice sufficient to allow the Disclosing Party to seek a protective\norder or other appropriate remedy. The Receiving arty will disclose only such information as is legally required and will use its reasonable best efforts to obtain\nconfidential treatment for any Confidential Information that is so disclosed. OWNERSHIP OF CONFIDENTIAL NFORMATION. All Confidential\nInformation wil remain the exclusive property of the Disclosing Party, and the Receiving Party will have no rights, by license or otherwise, to use the confidential\nInformation except as expressly provided herein. 7. RETURN OF CONFIDENTIAL INFORMATION. Jpon the Disclosing Party's written request, the Receiving\nParty promptly will return all tangible material embodying Confidential Information (in any form and including, without limitation, all summaries, copies and\nexcerpts of Confidential Information). 8 GOVERNING LAW; ETC. This Agreement will be governed by internal laws of the State of Arizona, without reference to\nits choice of law rules, and may be executed in counterpart copies. If a provision of this Agreement is held invalid under any applicable law, such invalidity will not\naffect any other provision of this Agreement that can be given effect without the invalid provision. All terms and conditions of this Agreement will be deemed\nenforceable to the fullest extent permissible under applicable law, and, when necessary, the court is requested to reform any and all terms or conditions to give\nthem such effect. Further, the venue for arbitration or litigation will be in Phoenix, Arizona, and the parties consent to such jurisdiction. 9. NONWAIVER. Any\nfailure by either to enforce the other party's strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently\nenforce\nsuch provision or any other provision of this Agreement. 10. TERMINATION. This Agreement wil terminate automatically upon the completion or termination of\ndealings between DA and Compuware; provided, however, that each party's obligations with respect to the other party's Confidentia Information will survive\ncompletion or termination of the dealings between the parties. 11. EXPORTATION/TRANSMISSION OF CONFIDENTIAL NFORMATION. The R eceiving Party\nacknowledges that the Confidential Information and any related materials or information provided hereunder are subject to the export control laws and regulations\nof the U.S., and any amendments thereof. The eceiving Party confirms that it will not export or re-export these items, directly or indirectly, either to (i) any\ncountries that are subject to U.S. export restrictions (currently including, but not necessarily limited to, Cuba, the Federal epublic of Yugoslavia erbia and\nMontenegro), Iran, Iraq, Libya, North Korea, and yria); and (ii) any development production of nuclear, chemical or biological weapons; or (iii) any third party who\nhas been prohibited from participating in the U.S. export transactions by any federal agency of the U.S. government. 12. INDEPENDENT DEVELOPMENT. The\nDisclosing Party acknowledges that the Receiving Party may currently or in the future be developing information internally, or receiving information from other\nparties, that is similar to the Confidential Information. Accordingly, nothing in this Agreement will be construed as a representation or agreement that the\nReceiving Party will not develop or have developed for its products, concepts, systems or techniques that are similar to or compete with products, concepts,\nsystems or techniques contemplated by or embodied in the Confidentia Information, provided that the Receiving Party does not violate any of its obligations\nunder this Agreement in connection with such development. 13. INJ UNCTIVE RELIEF. The eceiving Party acknowledges that disclosure or use of Confidential\nInformation in violation of this Agreement could cause irreparable harm to the Disclosing Party for which monetary damages may be difficult to ascertain or an\ninadequate remedy. The eceiving Party therefore agrees that the Disclosing Party will have the right, in addition to its other rights and remedies, to seek\ninjunctive relief for any violation of this Agreement. 14. LIMITED RELATIONSHIP. This Agreement will not create a joint venture, partnership or other formal\nbusiness relationship or entity of any kind, or an obligation to form any such relationship or entity. Each party will act as an independent contractor and\nnot\nas\nan\nagent of the other party for any purpose, and neither will have the authority to bind the other -29- 15. CUMULATIVE OBLIGATIONS. Each party's obligations\nhereunder are in addition to, and not exclusive of, any and all of its other obligations and duties to the other party, whether express, implied, and in\nfact\nor\nin\nlaw.\n16 INTEGRATION/PURCHASE ORDER. This Agreement constitutes the entire agreement between the parties with respect to the Confidentia Information and\nsupersedes all previous proposals (both oral and written), negotiations, representations, commitments, writings, agreements, and all other communications\nbetween the parties. This Agreement may only be altered or modified by written instrument duly executed by both parties. In the event of any conflict between\nthe\nterms and conditions of this Agreement and the terms and conditions of any purchase order, the terms and conditions of this Agreement will control. The\nundersigned represent that they are duly authorized representatives of the parties and have full authority to bind the parties, including any indicated affiliates\nof\nthe\nparties, by execution of this Agreement. The parties have executed and delivered this Agreement, and it will be effective as of the Effective Date.\nCOMPUWARE CORPORATION DA SOFTWARE, INC ignature\nSignature\nName\nName\nTitle\nTitle\nDate\nDate\n30 EX-10 .14 2 ex10-14 .txt EX-10.14 28 EXHIBIT V NONDISCLOSURE AGREEMENT THIS AGREEMENT (the "Agreement"), is made as of , 2000, (the "Effective\nDate") by and between JDA SOFTWARE, INC. , a n Arizona corporation ("JDA") and COMPUWARE CORPORATION, a Michigan corporation ("Compuware").\nRECITALS 1. In connection with the evaluation or pursuit of certain mutually beneficial business opportunities, JDA and Compuware may disclose valuable\nproprietary information to each other relating to their respective operations and businesses. 2. JDA and Compuware would like to protect the confidentiality of,\nmaintain their respective rights in and prevent the unauthorized use and disclosure of such information. AGREEMENT JDA and Compuware hereby agree: 1.\nCONFIDENTIAL INFORMATION. As used in this Agreement, "Confidential Information" means all information of either party that is not generally known to the\npublic, whether of a technical, business or other nature (including, without limitation, trade secrets, know-how and information relating to the technology, software,\ndesigns, specifications and prototypes, customers, business plans, promotional and marketing activities, finances and other business affairs of such party), that is\ndisclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party"), and that has been identified as being proprietary and/or confidential or\nthat by the nature of the circumstances surrounding the disclosure ought to be treated as propriety and confidential. Confidential Information also includes all\ninformation concerning the existence and progress of the parties' dealings. 2 . USE OF CONFIDENTIAL INFORMATION . The Receiving Party, except as\nexpressly provided in this Agreement, will not disclose it to anyone without the Disclosing Party's prior written consent. The Receiving Party will not use, or permit\nother to use, Confidential Information for any purpose other than to pursue discussion and evaluation of potential business dealings between the parties in\naccordance with the nature of discussions between the parties. The Receiving Party will take all reasonable measures to avoid disclosure, dissemination or\nunauthorized use of Confidential Information, including, at a minimum, those measures it takes to protect its own confidential information of a similar nature. 3 .\nEXCEPTIONS. The provisions of Section 2 will not apply to any information that (i) is or becomes publicly available without breach of this Agreement; (ii) can be\nshown by documentation to have been known to the Receiving Party at the time of its receipt from the Disclosing Party; (iii) is rightfully received from a third party\nwho did not acquire or disclose such information by a wrongful or tortuous act; or (iv) can be shown by documentation to have been independently developed by\nthe Receiving Party without reference to any Confidential information. 4 . RECEIVING PARTY PERSONNEL. The Receiving Party will restrict the possession,\nknowledge, development and use of Confidential Information to its employees, agents, subcontractors and entities controlled by or controlling it (collectively,\n"Personnel") who have a need to know Confidential Information in connection with the purposes set forth in Section 2. The Receiving Party's Personnel will have\naccess only to the Confidential Information they need for such purposes. The Receiving Party will ensure that its personnel comply with this Agreement. 5 .\nDISCLOSURES TO GOVERNMENTAL ENTITIES. If the Receiving Party becomes legally obligated to disclose Confidential Information by any governmental\nentity with jurisdiction over it, the Receiving Party will give the Disclosing Party prompt written notice sufficient to allow the Disclosing Party to seek a protective\norder or other appropriate remedy. The Receiving Party will disclose only such information as is legally required and will use its reasonable best efforts to obtain\nconfidential treatment for any Confidential Information that is so disclosed. - 28 - 29 6 . OWNERSHIP OF CONFIDENTIAL INFORMATION . All Confidential\nInformation will remain the exclusive property of the Disclosing Party, and the Receiving Party will have no rights, by license or otherwise, to use the confidential\nInformation except as expressly provided herein. 7. RETURN OF CONFIDENTIAL INFORMATION . Upon the Disclosing Party's written request, the Receiving\nParty promptly will return all tangible material embodying Confidential Information (in any form and including, without limitation, all summaries, copies and\nexcerpts of Confidential Information). 8 GOVERNING LAW; ETC. This Agreement will be governed by internal laws of the State of Arizona, without reference to\nits choice of law rules, and may be executed in counterpart copies. If a provision of this Agreement is held invalid under any applicable law, such invalidity will not\naffect any other provision of this Agreement that can be given effect without the invalid provision. All terms and conditions of this Agreement will be deemed\nenforceable to the fullest extent permissible under applicable law, and, when necessary, the court is requested to reform any and all terms or conditions to give\nthem such effect. Further, the venue for arbitration or litigation will be in Phoenix, Arizona, and the parties consent to such jurisdiction. 9. NONWAIVER . Any\nfailure by either to enforce the other party's strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce\nsuch provision or any other provision of this Agreement. 10. TERMINATION . This Agreement will terminate automatically upon the completion or termination of\ndealings between JDA and Compuware; provided, however, that each party's obligations with respect to the other party's Confidential Information will survive\ncompletion or termination of the dealings between the parties. 11. EXPORTATION/TRANSMISSION OF CONFIDENTIAL INFORMATION. The Receiving Party\nacknowledges that the Confidential Information and any related materials or information provided hereunder are subject to the export control laws and regulations\nof the U.S ., and any amendments thereof. The Receiving Party confirms that it will not export or re-export these items, directly or indirectly, either to (i) any\ncountries that are subject to U.S. export restrictions (currently including, but not necessarily limited to, Cuba, the Federal Republic of Yugoslavia (Serbia and\nMontenegro), Iran, Iraq, Libya, North Korea, and Syria); and (ii) any development production of nuclear, chemical or biological weapons; or (iii) any third party who\nhas been prohibited from participating in the U.S. export transactions by any federal agency of the U.S . government. 12. INDEPENDENT DEVELOPMENT. The\nDisclosing Party acknowledges that the Receiving Party may currently or in the future be developing information internally, or receiving information from other\nparties, that is similar to the Confidential Information. Accordingly, nothing in this Agreement will be construed as a representation or agreement that the\nReceiving Party will not develop or have developed for its products, concepts, systems or techniques that are similar to or compete with products, concepts,\nsystems or techniques contemplated by or embodied in the Confidential Information, provided that the Receiving Party does not violate any of its obligations\nunder this Agreement in connection with such development. 13. INJUNCTIVE RELIEF. The Receiving Party acknowledges that disclosure or use of Confidential\nInformation in violation of this Agreement could cause irreparable harm to the Disclosing Party for which monetary damages may be difficult to ascertain or an\ninadequate remedy. The Receiving Party therefore agrees that the Disclosing Party will have the right, in addition to its other rights and remedies, to seek\ninjunctive relief for any violation of this Agreement. 14 . LIMITED RELATIONSHIP . This Agreement will not create a joint venture, partnership or other formal\nbusiness relationship or entity of any kind, or an obligation to form any such relationship or entity. Each party will act as an independent contractor and not as an\nagent of the other party for any purpose, and neither will have the authority to bind the other. - 29 - 30 15. CUMULATIVE OBLIGATIONS . Each party's obligations\nhereunder are in addition to, and not exclusive of, any and all of its other obligations and duties to the other party, whether express, implied, and in fact or in law.\n16 INTEGRATION/PURCHASE ORDER. This Agreement constitutes the entire agreement between the parties with respect to the Confidential Information and\nsupersedes all previous proposals (both oral and written), negotiations, representations, commitments, writings, agreements, and all other communications\nbetween the parties. This Agreement may only be altered or modified by written instrument duly executed by both parties. In the event of any conflict between the\nterms and conditions of this Agreement and the terms and conditions of any purchase order, the terms and conditions of this Agreement will control. The\nundersigned represent that they are duly authorized representatives of the parties and have full authority to bind the parties, including any indicated affiliates of\nthe parties, by execution of this Agreement. The parties have executed and delivered this Agreement, and it will be effective as of the Effective Date.\nCOMPUWARE CORPORATION JDA SOFTWARE, INC . Signature____________________________ Signature____________________________\nName_________________________________ Name_________________________________ Title________________________________\nTitle________________________________ Date_________________________________ Date_________________________________ - 30 - 534ad09082139ac40a6125aa41fa1df5.pdf jurisdiction party Exhibit 10.2\nNon-Solicitation and Confidentiality Agreement\nThis Non-Solicitation and Confidentiality Agreement (“Agreement”) is made on this ___ day of ____, between _______\n_____ ______ ____\n(the “Employee”) and Peoples Bank SB (the “Peoples” or “Bank”). In consideration of Employee’s\nemployment and continued employment, the payment of remuneration and benefits by the Bank and the Bank’s promise\nto provide Employee with access to customers, Confidential Information and trade secrets, which the parties recognize to\nbe good, valuable and sufficient consideration for the Agreement, Employee and the Bank agree as follows:\n1.\nEmployee agrees that during the term of his/her employment, and for a period of one year from the date of his/her\ntermination of employment for any reason, Employee will not, in a competitive capacity, on behalf of any person or\nentity other than the Bank, directly or indirectly:\n(a)\nsolicit, divert (or attempt to solicit or divert) or accept competitive business from any customer of the Bank\nwith whom Employee has had contact (either directly or indirectly), provided services to, or over which\nEmployee has had responsibility at any time in the one (1) year preceding his/her separation;\n(b)\nsolicit, divert (or attempt to solicit or divert) or accept competitive business from any customer of Bank about\nwhom Employee has obtained Confidential Information; and\n(c)\ndirectly or indirectly assist in the research and development of products or services where such research and\ndevelopment would be aided by any Confidential Information that Employee has learned in the course of his/her\nrelationship with the Bank.\nFor purposes of this Agreement, the term “competitive capacity” shall mean (i) performing tasks or duties\nsimilar to those Employee performed in his/her last year of employment at the Bank for a competitor of\nthe Bank; (ii) managing/supervising those who, for a competitor of the Bank, perform tasks or duties\nsimilar to those which Employee performed in the last year of his/her employment at Bank; or (iii)\nperforming, on behalf of a competitor of the Bank, tasks or duties in which Employee utilizes any\nConfidential Information that he/she learned in the course of his/her relationship with the Bank.\n2.\nEmployee acknowledges and agrees that as a result of his/her employment with the Bank, he/she will have\naccess to and be involved in the development and/or utilization of the Bank’s (and its parent’s, affiliates’ and/or\nsubsidiaries’) confidential and proprietary business information (“Confidential Information”). Accordingly,\nEmployee agrees that he/she shall not, either during his/her employment by the Bank or at any time thereafter,\ndisclose to anyone (except as authorized by the Bank in the furtherance of its business) or use in competition with\nPeoples, any of the Bank’s (or its parent’s, affiliate’s and/or subsidiaries’) Confidential Information. The Bank’s’\n(and its parent’s, affiliates’ and/or subsidiaries’) Confidential Information includes, without limitation, all materials\nand information (whether written or not) about Peoples’ contracts, business plans, business partners, customers\nand prospective customers (including their product requirements and payment terms), vendors, suppliers, current\nand prospective products and services, sales, marketing, pricing, costs, budgets, financing, promotions,\ntechniques, processes and forms, purchasing, finances, accounting, research, improvements, discoveries,\ninventions, experimental works-in-progress, formulae, software, licenses, business methods and tactics, quality\ncontrol parameters and techniques, internal communications, production, output, profit margins, and/or any other\naspect of the Bank’s business or operations (including, but not limited to, information concerning, relating to, or\narising out of relationships with suppliers, vendors, customers, lenders, or other business affiliates) which are not\ngenerally known by the public at large and/or which provide the Bank with a competitive advantage.\n3.\nEmployee recognizes that all information, however stored or memorialized, and all identification cards, keys, access codes,\nmarketing materials, samples, notes, customer, supplier and other lists, documents, forms, computers, records, and other\nequipment or property which the Bank provides to or makes available to him/her are the sole property of the Bank. Employee\nshall use such property solely for the benefit of Peoples and for no other purpose. Upon the cessation of his/her employment\nwith the Bank and without prior request, Employee shall (i) refrain from taking any such property from the Bank’s premises;\n(ii) immediately return to the Bank any such property that may be in his/her possession or control (including any and all\ncopies thereof); (iii) permanently delete any such property that may remain on any personal storage device that remains in\nEmployee’s possession after his/her employment ends; and (iv) certify in writing that Employee has complied with this\nparagraph.\n4.\nFor a period of one year after his/her termination, the Employee agrees that he/she will not, directly or indirectly,\nfor himself/herself or for any third party, solicit, induce, recruit, or cause another person in the employ of the Bank\n(i) who reported directly or indirectly to the Employee, (ii) whose confidential employment information was\naccessible by the Employee, or (iii) whose customer relationships were known to the Employee, to terminate\nhis/her employment for the purpose of joining, associating, or becoming employed with another person, business\norganization or other entity that is in competition with any product or service provided by the Bank, or any\nbusiness or activity of the Bank.\n5.\nEmployee agrees that it would be difficult to measure damages to the Bank from any breach of covenants contained in this\nAgreement, but that such damages from any breach would be great, incalculable, and irremediable, and that damages would\nbe an inadequate remedy. Accordingly, Employee agrees to waive any claim that Peoples has an adequate remedy at law and\nfurther agrees that the Bank may have specific performance of the terms of this Agreement in any court having jurisdiction.\nEmployee further agrees that if he/she violates this Agreement, the Employee hereby agrees to indemnify the\nBank against any and all damages, costs, and expenses, including reasonable attorneys’ fees, incurred by the\nBank in enforcing the terms of this Agreement, or prosecuting any action or claim arising by reason of the\nEmployee’s violation of this Agreement.\n6.\nThe existence of any claim or cause of action by Employee against the Bank shall not constitute a defense to the\nenforcement by the Bank of Paragraphs 1, 2, 3, and 4 of this Agreement.\n7.\nThis Agreement does not create any right to employment or employment contract between the Employee and the\nBank in which the Employer/Employee relationship is employment at will.\n8.\nThe Employee understands he/she may not assign this Agreement because it is the intent that he/she personally\nprovide services hereunder. The Bank may, however, unilaterally assign this Agreement to a related entity, a\nsuccessor, or an assign.\n2\n9.\nNotwithstanding the assignability language in Paragraph 8, the parties agree that, in the event of a Change in\nControl of the Bank or NorthWest Indiana Bancorp (“NorthWest”), the Employee will no longer be bound by the\nrestrictions in Paragraphs 1 and 4. For purposes of this Agreement, a Change in Control will occur if, within any\n12 month period, (i) any person, or more than one person acting as a group within the meaning of Section 13(d) of\nthe Securities Exchange Act of 1934, becomes the beneficial owner, directly or indirectly, of more than 50% of the\nissued and outstanding common stock of (or more than 50% of the total voting power of the stock of) the Bank (or\nNorthWest); (ii) any person, or more than one person acting as a group within the meaning of Section 13(d) of the\nSecurities Exchange Act of 1934, acquires all or substantially all of the assets of the Bank (or NorthWest); or (iii)\nthe majority of the members of the Bank’s (or NorthWest’s) board of directors is replaced by directors whose\nappointment or election was not endorsed by a majority of the members of NorthWest before the date of the\nappointment or election.\n10.\nThe laws of the State of Indiana shall govern this Agreement. The Bank is based in Indiana, and the Employee\nunderstands and acknowledges its desire and need to defend any litigation against it in Indiana. Accordingly, the\nparties agree that any claim of any type brought by the Employee against the Bank or any of its employees or\nagents must be maintained only in a court sitting in Lake County, Indiana or, if a federal court, the Northern\nDistrict of Indiana, Hammond Division. The Employee further understands and acknowledges that in the event the\nBank initiates litigation against him/her, the Bank may need to prosecute such litigation in the Employee’s forum\nstate, in the State of Indiana or in such other states where the Employee is subject to personal jurisdiction.\nAccordingly, the parties agree that the Bank can pursue any claim against the Employee in any forum in which\nhe/she is subject to personal jurisdiction. The Employee specifically consents to personal jurisdiction in the State\nof Indiana, as well as any state in which a customer assigned to the Employee resides or is located.\n11.\nThe parties expressly agree that the terms of this Agreement are reasonable, enforceable, and necessary to\nprotect the Bank’ interests and will not affect Employee’s ability to earn a livelihood. In the unlikely event,\nhowever, that a court determines that any of the terms, provisions, or covenants contained in this Agreement are\nunreasonable, the court shall limit the application of such term, provision, or covenant, or modify any such term,\nprovision, or covenant and proceed to enforce the Agreement as so limited or modified. Consequently, if any\nprovision of this Agreement is determined to be unenforceable, the remaining provisions shall remain in full force\nand effect. The parties further agree that if any provision is susceptible of two or more constructions, one of which\nwould render the provision unenforceable, then the provision shall be construed to have the meaning that renders\nit enforceable.\n12.\nEmployee acknowledges and agrees that, after his/her separation of employment, Employee will possess\nPeoples’ trade secrets and Confidential Information which he/she would inevitably use if he/she were to engage in\nconduct prohibited above, that such use would be unfair, and extremely detrimental, to the Bank and, in view of\nthe benefits provided to Employee in this Agreement, that such conduct on Employee’s part would be inequitable.\nAccordingly, Employee separately and severally agrees for the benefit of Peoples to keep each of the covenants\ndescribed above throughout the one (1) year restricted period.\n13.\nEmployee acknowledges and agrees that, in executing this Agreement, he/she has not relied on any\nrepresentations or statements not set forth herein made by the Bank with regard to the subject matter, basis or\neffect of this Agreement, or otherwise. Employee understands that this Agreement cannot be amended, modified,\nor waived, except by a writing signed by Employee and the Chief Executive Officer of the Bank.\n3\n14.\nEmployee acknowledges that he/she has a duty to contact the Bank if Employee has any questions regarding\nwhether or not a particular employment or conduct would be restricted by this Agreement.\n15.\nEmployee acknowledges that he/she has a duty to immediately inform the Bank in writing of any employment or\nsimilar relationship he/she enters into within one (1) year of his/her termination of employment (for whatever\nreason) with the Bank.\n16.\nEmployee acknowledges that the restricted period of time set forth herein (e.g., one (1) year) is a material term of\nthis Agreement and that the Bank is entitled to Employee’s compliance with these terms during that full period of\ntime. Therefore, Employee agrees that the restricted period of time is tolled during any period of non-compliance.\nIf the Bank must seek injunctive relief or judicial intervention, the restricted time period set forth herein does not\ncommence until Employee is judged by a court of competent jurisdiction to be in full compliance with this\nAgreement.\n17.\nThis Agreement constitutes the entire agreement of the parties and supersedes all prior agreements addressing\nthe terms, conditions and issues contained herein. Notwithstanding the foregoing, nothing in this Agreement is\nintended to or shall limit, supersede, nullify, or affect any other duty or responsibility Employee may have or owe\nthe Bank by virtue of any separate agreement or otherwise.\n18.\nEmployee acknowledges that any failure by the Bank to insist upon strict compliance with any terms or provisions\nof this Agreement shall not be deemed a waiver of any terms, provisions, or rights.\n19.\nEmployee acknowledges that his/her employment and/or continued employment with the Bank, the compensation\npaid to him/her by the Bank, and the Confidential Information and trade secrets provided to Employee by Peoples\nare sufficient consideration for the covenants contained herein.\n20.\nEmployee certifies that he/she has carefully read the entire content of this Non-Solicitation and Confidentiality\nAgreement, that Employee was afforded sufficient opportunity to obtain independent legal advice prior to\nexecuting this Agreement, and that Employee fully understands all of its terms, conditions and restrictions. In\naddition, Employee acknowledges that any legal action taken by Peoples to enforce this Agreement shall not be\ndeemed an attempt to prevent Employee from obtaining other employment.\nPEOPLES BANK SB\nBy:\nEmployee Signature\nBenjamin Bochnowski\nPresident & Chief Executive Officer\nEmployee Printed Name\n[Signature Page to Non-Solicitation and Confidentiality Agreement]\n4 Exhibit 10.2\nNon-Solicitation and Confidentiality Agreement\nThis Non-Solicitation and Confidentiality Agreement (“Agreement”) is made on this ___\n_______________ (the “Employee”) and Peoples Bank SB (the “P eoples” or “Bank”). In consideration of Employee's\nemploymentand continued employment, the payment of remuneration and benefits by the Bank and the Bank's promise\nto provide Employee with access to customers, Confidential Information and trade secrets, which the parties recognize to\nbe good, valuable and sufficient consideration for the Agreement, Employee and the Bank agree as follows:\nday of_ , between\nEmployee agrees that during the term of his/her employment, and for a period of one yearfrom the date of his/her\n1. termination of employment for any reason, E mployee will not, in a competitive capacity, on behalf of any person or\nentity other than the Bank, directly or indirectly:\nsolicit, divert (or attempt to solicit or divert) or accept competitive business from any customer of the Bank\n(a) with whom Employee has had contact (either directly or indirectly), provided services to, or over which\nEmployee has had responsibility atany time in the one (1) year preceding his/her separation;\nsolicit, divert (or attempt to solicit or divert) or accept competitive business from any customer of Bank about\nwhom Employee has obtained Confidential Information; and\ndirectly or indirectly assist in the research and development of products or services where such research and\n(c) development would be aided by any Confidential Information that Employee has learned in the course of his/her\nrelationship with the Bank.\nFor purposes of this Agreement, the term “competitive capacity” shall mean (i) performing tasks or duties\nsimilarto those Employee performed in his/her Iastyear ofemploymentatthe Bank fora competitor of\nthe Bank; (ii) managing/supervising those who, for a competitor of the Bank, perform tasks or duties\nsimilar to those which E mployee performed in the last year of his/her employment at Bank; or (iii)\nperforming, on behalf of a competitor of the Bank, tasks or duties in which Employee utilizes any\nConfidential Information that he/she learned in the course of his/her relationship with the Bank.\nEmployee acknowledges and agrees thatas a result of his/her employmentwith the Bank, he/she will have\naccess to and be involved in the developmentand/or utilization of the Bank's (and its parent's, affiliates' and/or\nsubsidiaries') confidential and proprietary business information (“Confidential Information”). Accordingly,\nE mployee agrees that he/she shall not, either during his/her employment by the Bank or at any time thereafter,\ndisclose to anyone (exceptas authorized by the Bank in the furtherance of its business) or use in competition with\nPeoples, any of the Bank's (or its parent's, affiliate's and/or subsidiaries') Confidential Information. The Bank's'\n(and its parent's, affiliates' and/or subsidiaries') Confidential Information includes, without limitation, all materials\nand information (whether written or not) about Peoples' contracts, business plans, business partners, customers\nand prospective customers (including their product requirements and payment terms), vendors, suppliers, current\nand prospective products and services, sales, marketing, pricing, costs, budgets, financing, promotions,\ntechniques, processes and forms, purchasing, finances, accounting, research, improvements, discoveries,\ninventions, experimental works-in-progress, formulae, software, licenses, business methods and tactics, quality\ncontrol parameters and techniques, internal communications, production, output, profit margins, and/or any other\naspect of the Bank's business or operations (including, but not limited to, information concerning, relating to, or\narising outof relationships with suppliers, vendors, customers, lenders, or other business affiliates) which are not\ngenerally known by the public at large and/or which provide the Bank with a competitive advantage.\nE mployee recognizes that all information, however stored or memorialized, and all identification cards, keys, access codes,\nmarketing materials, samples, notes, customer, supplier and other lists, documents, forms, computers, records, and other\nequipment or property which the Bank provides to or makes available to him/her are the sole property of the Bank. Employee\nshall use such property solely for the benefit of Peoples and for no other purpose. Upon the cessation of his/her employment\nwith the Bank and without prior request, Employee shall (i) refrain from taking any such property from the Bank’ s premises;\n(ii) immediately return to the Bank any such property that may be in his/her possession or control (including any and all\ncopies thereof); (iii) permanently delete any such property that may remain on any personal storage device that remains in\nEmployee’ s possession after his/her employment ends; and (iv) certify in writing that Employee has complied with this\nparagraph.\nFor a period of one year after his/hertermination, the Employee agrees that he/she will not, directly or indirectly,\nfor himself/herself orfor any third party, solicit, induce, recruit, or cause another person in the employ ofthe Bank\n(i) who reported directly or indirectly to the Employee, (ii) whose confidential employment information was\naccessible by the Employee, or (iii) whose customer relationships were known to the Employee, to terminate\nhis/her employment for the purpose of joining, associating, or becoming employed with another person, business\norganization or other entity that is in competition with any product or service provided by the Bank, or any\nbusiness or activity of the Bank.\nE mployee agrees that it would be difficult to measure damages to the Bank from any breach of covenants contained in this\nAgreement, but that such damages from any breach would be great, incalculable, and irremediable, and that damages would\nbe an inadequate remedy. A ccordingly, Employee agrees to waive any claim that Peoples has an adequate remedy at law and\nfurther agrees that the Bank may have specific performance of the terms of this Agreement in any court having jurisdiction.\nE mployee further agrees that if he/she violates this Agreement, the E mployee hereby agrees to indemnify the\nBank againstany and all damages, costs, and expenses, including reasonable attorneys' fees, incurred by the\nBank in enforcing the terms of this Agreement, or prosecuting any action or claim arising by reason of the\nE mployee's violation of this Agreement.\nThe existence of any claim or cause of action by Employee againstthe Bank shall not constitute a defenseto the\nenforcement by the Bank of Paragraphs 1, 2, 3, and 4 of this Agreement.\nThis Agreement does not create any right to employment or employment contract between the E mployee and the\nBank in which the Employer/E mployee relationship is employment at will.\nThe Employee understands he/she may notassign this Agreement because it is the intentthat he/she personally\nprovide services hereunder. The Bank may, however, unilaterally assign this Agreement to a related entity, a\nsuccessor, or an assign.\n10. 11. 12. 13. Notwithstanding the assignability language in Paragraph 8, the parties agree that, in the event ofa Change in\nControl of the Bank or NorthWest Indiana Bancorp (“NorthWest”), the Employee will no longer be bound by the\nrestrictions in Paragraphs 1 and 4. For purposes of this Agreement, a Change in Control will occur if, within any\n12 month period, (i) any person, or more than one person acting as a group within the meaning ofSection 13(d) of\nthe Securities Exchange Actof 1934, becomes the beneficial owner, directly or indirectly, of more than 50% of the\nissued and outstanding common stock of (or more than 50% ofthe total voting power ofthe stock of) the Bank (or\nNorthWest); (ii) any person, or more than one person acting as a group within the meaning of Section 13(d) of the\nSecurities Exchange Act of 1934, acquires all or substantially all of the assets ofthe Bank (or NorthWest); or (iii)\nthe majority of the members of the Bank's (or NorthWest's) board of directors is replaced by directors whose\nappointment or election was not endorsed by a majority of the members of NorthWest before the date of the\nappointment or election.\nThe laws of the State of Indiana shall govern this Agreement. The Bank is based in Indiana, and the Employee\nunderstands and acknowledges its desire and need to defend any litigation against it in Indiana. Accordingly, the\nparties agree thatany claim ofany type brought by the Employee againstthe Bank or any of its employees or\nagents must be maintained only in a court sitting in Lake County, Indiana or, ifa federal court, the Northern\nDistrict of Indiana, Hammond Division. The Employee further understands and acknowledges that in the event the\nBank initiates litigation against him/her, the Bank may need to prosecute such litigation in the Employee's forum\nstate, in the State of Indiana or in such other states where the Employee is subjectto personal jurisdiction.\nAccordingly, the parties agree that the Bank can pursue any claim against the Employee in any forum in which\nhe/she is subject to personal jurisdiction. The Employee specifically consents to personal jurisdiction in the State\nof Indiana, as well as any state in which a customer assigned to the Employee resides or is located.\nThe parties expressly agree thatthe terms of this Agreement are reasonable, enforceable, and necessary to\nprotect the Bank' interests and will not affect Employee's ability to earn a livelihood. In the unlikely event,\nhowever, that a court determines that any of the terms, provisions, or covenants contained in this Agreement are\nunreasonable, the court shall limit the application of such term, provision, or covenant, or modify any such term,\nprovision, or covenant and proceed to enforce the Agreement as so limited or modified. Consequently, if any\nprovision of this Agreement is determined to be unenforceable, the remaining provisions shall remain in full force\nand effect. The parties further agree that if any provision is susceptible of two or more constructions, one of which\nwould render the provision unenforceable, then the provision shall be construed to have the meaning that renders\nit enforceable.\nEmployee acknowledges and agrees that, after his/her separation of employment, Employee will possess\nPeoples' trade secrets and Confidential Information which he/she would inevitably use if he/she were to engage in\nconduct prohibited above, that such use would be unfair, and extremely detrimental, to the Bank and, in view of\nthe benefits provided to Employee in this Agreement, thatsuch conducton Employee's part would be inequitable.\nAccordingly, Employee separately and severally agrees for the benefit of Peoples to keep each ofthe covenants\ndescribed above throughoutthe one (1) year restricted period.\nEmployee acknowledges and agrees that, in executing this Agreement, he/she has not relied on any\nrepresentations or statements notset forth herein made by the Bank with regard to the subject matter, basis or\neffect of this Agreement, or otherwise. Employee understands thatthis Agreement cannot be amended, modified,\nor waived, except by a writing signed by Employee and the Chief Executive Officer of the Bank.\n14\n15. 16. 17. 18. 19. 20. Employee acknowledges that he/she has a duty to contactthe Bank if Employee has any questions regarding\n' whether or not a particular employment or conduct would be restricted by this Agreement. Employee acknowledges that he/she has a duty to immediately inform the Bank in writing of any employment or\nsimilar relationship he/she enters into within one (1) year of his/hertermination of employment (for whatever\nreason) with the Bank.\nEmployee acknowledges thatthe restricted period of time set forth herein (e.g., one (1) year) is a material term of\nthis Agreement and that the Bank is entitled to Employee's compliance with these terms during thatfull period of\ntime. Therefore, Employee agrees thatthe restricted period of time is tolled during any period of non-compliance.\nlfthe Bank must seek injunctive relief orjudicial intervention, the restricted time period set forth herein does not\ncommence until Employee is judged by a court of competentjurisdiction to be in full compliance with this\nAgreement.\nThis Agreement constitutes the entire agreement of the parties and supersedes all prior agreements addressing\nthe terms, conditions and issues contained herein. Notwithstanding the foregoing, nothing in this Agreement is\nintended to or shall limit, supersede, nullify, or affect any other duty or responsibility E mployee may have or owe\nthe Bank by virtue of any separate agreement or othenNise.\nEmployee acknowledges that any failure by the Bank to insist upon strict compliance with any terms or provisions\nof this Agreement shall not be deemed a waiver of any terms, provisions, or rights.\nEmployee acknowledges that his/her employment and/or continued employment with the Bank, the compensation\npaid to him/her by the Bank, and the Confidential Information and trade secrets provided to Employee by Peoples\nare sufficientconsideration forthe covenants contained herein.\nEmployee certifies that he/she has carefully read the entire content of this Non-Solicitation and Confidentiality\nAgreement, that Employee was afforded sufficientopportunity to obtain independent legal advice priorto\nexecuting this Agreement, and that Employee fully understands all of its terms, conditions and restrictions. In\naddition, Employee acknowledges that any legal action taken by Peoples to enforce this Agreement shall not be\ndeemed an attempt to prevent Employee from obtaining other employment.\nPEOPLES BANK SB\nBy:\nEmployee Signature Benjamin Bochnowski President & Chief Executive Officer\nE mployee P nnted Name [Signature Page to Non-Solicitation and Confidentiality Agreement] E xhibit 10.2\nNon-Solicitation and Confidentiality Agreement\nThis Non-s olicitation and onfidentiality Agreement ("Agreement") is made on this\nday of\nbetween\n(the "Employee") and eoples Bank SB (the "Peoples" or "Bank"). In consideration of Employee's\nemployment and continued employment, the payment of remuneration and benefits by the Bank and the Bank's promise\nto provide mployee with access to customers, Confidential Information and trade secrets, which the parties recognize to\nbe\ngood, valuable and sufficient consideration for the Agreement E mployee and the Bank agree as follows:\nE mployee agrees that during the term of his/her employment, and for a period of one year from the date of his/her\n1. termination of employment for any reason, mployee will not, in a competitive capacity, on behalf of any person or\nentity other than the Bank, directly or indirectly:\nsolicit, divert (or attempt to solicit or divert) or accept competitive business from any customer of the Bank\n(a) with whom Employee has had contact (either directly or indirectly), provided services to, or over which\nEmployee has had responsibility at any time in the one (1) year preceding his/her separation;\n(b)\nsolicit, divert (or attempt to solicit or divert) or accept competitive business from any customer of Bank about\nwhom E mployee has obtained Confidentia Information and\ndirectly or indirectly assist in the research and development of products or services where such research and\n(c)\ndevelopment would be aided by any Confidential Information that Employee has learned in the course of his/her\nrelationship with the Bank.\nFor purposes of this Agreement the term "competitive capacity" shall mean (i) performing tasks or duties\nsimilar to those Employee performed in his/her last year of employment at the Bank for a competitor of\nthe Bank; (ii) managing/supervising those who, for a competitor of the Bank, perform tasks or duties\nsimilar to those which Employee performed in the last year of his/her employment at Bank; or (iii)\nperforming, on behalf of a competitor of the Bank, tasks or duties in which Employee utilizes any\nConfidential Information that he/she learned in the course of his/her relationship with the Bank.\nE mployee acknowledges and agrees that as a result of his/her employment with the Bank, he/she will have\naccess to and be involved in the development and/or utilization of the Bank's (and its parent's, affiliates' and/or\nsubsidiaries') confidential and proprietary business information "Confidential Information"). Accordingly,\nEmployee agrees that he/she shall not, either during his/her employment by the Bank or at any time thereafter,\ndisclose to anyone (except as authorized by the Bank in the furtherance of its business) or use in competition with\nPeoples, any of the Bank's (or its parent's, affiliate's and/or subsidiaries') Confidential Information. The Bank's'\n(and its parent's, affiliates' and/or subsidiaries') Confidentia Information includes, without limitation, all materials\n2.\nand information (whether written or not) about eoples' contracts, business plans, business partners, customers\nand prospective customers (including their product requirements and payment terms), vendors, suppliers, current\nand prospective products and services, sales, marketing, pricing, costs, budgets, financing, promotions,\ntechniques, processes and forms, purchasing, finances, accounting, research, improvements, discoveries,\ninventions, experimental works-in-progress, formulae, software, licenses, business methods and tactics, quality\ncontrol parameters and techniques internal communications, production, output profit margins, and/or any other\naspect of the Bank's business or operations (including, but not limited to, information concerning, relating to, or\narising out of relationships with suppliers vendors, customers, lenders, or other business affiliates) which are not\ngenerally known by the public at large and/or which provide the Bank with a competitive advantage.\nE mployee recognizes that all information, however stored or memorialized, and all identification cards, keys, access codes,\nmarketing materials, samples, notes, customer, supplier and other lists, documents, forms, computers, records, and other\nequipment or property which the Bank provides to or makes available to him/her are the sole property of the Bank. Employee\nshall use such property solely for the benefit of Peoples and for no other purpose. Upon the cessation of his/her employment\n3. with the Bank and without prior request, Employee shall (i) refrain from taking any such property from the Bank's premises;\n(ii) immediately return to the Bank any such property that may be in his/her possession or control (including any and all\ncopies thereof); (iii) permanently delete any such property that may remain on any personal storage device that remains in\nEmployee's possession after his/her employment ends; and (iv) certify in writing that Employee has complied with this\nparagraph.\nF or a period of one year after his/her termination, the E mployee agrees that he/she will not, directly or indirectly,\nfor himself/herself or for any third party, solicit, induce, recruit, or cause another person in the employ of the Bank\n(i) who reported directly or indirectly to the Employee, (ii) whose confidential employment information was\n4. accessible by the E mployee, or (iii) whose customer relationships were known to the mployee, to terminate\nhis/her employment for the purpose of joining, associating, or becoming employed with another person, business\norganization or other entity that is in competition with any product or service provided by the Bank, or any\nbusiness or activity of the Bank.\nE mployee agrees that it would be difficult to measure damages to the Bank from any breach of covenants contained in this\nA greement, but that such damages from any breach would be great, incalculable, and irremediable, and that damages would\nbe an inadequate remedy. A ccordingly, Employee agrees to waive any claim that Peoples has an adequate remedy at law and\n5.\nfurther agrees that the Bank may have specific performance of the terms of this greement in any court having jurisdiction.\nmployee further agrees that if he/she violates this Agreement the mployee hereby agrees to indemnify the\nBank against any and all damages, costs, and expenses, including reasonable attorneys' fees, incurred by the\nBank in enforcing the terms of this Agreement, or prosecuting any action or claim arising by reason of the\nE mployee's violation of this Agreement.\n6.\nThe existence of any claim or cause of action by E mployee against the 3ank shall not constitute a defense to the\nenforcement by the Bank of P aragraphs 1, 2, 3, and 4 of this Agreement.\n7.\nThis Agreement does not create any right to employment or employment contract between the E mployee and the\nBank in which the Employer/E mployee relationship is employment at will.\nThe Employee understands he/she may not assign this Agreement because it is the intent that he/she personally\n8. provide services hereunder The Bank may, however, unilaterally assign this Agreement to a related entity, a\nsuccessor, or an assign.\n2\nNotwithstanding the assignability language in aragraph 8, the parties agree that, in the event of a Change in\nControl of the Bank or NorthWest Indiana Bancorp ("NorthWest"), the mployee wil no longer be bound by the\nrestrictions in Paragraphs 1 and 4. F or purposes of this Agreement, a Change in Control will occur if, within any\n12 month period, (i) any person, or more than one person acting as a group within the meaning of Section 13(d) of\nthe Securities E xchange Act of 1934, becomes the beneficial owner, directly or indirectly, of more than 50% of the\n9.\nissued and outstanding common stock of (or more than 50% of the total voting power of the stock of) the Bank (or\nNorthWest); (ii) any person, or more than one person acting as a group within the meaning of Section 13(d) of the\nSecurities Exchange Act of 1934, acquires all or substantially all of the assets of the Bank (or NorthWest); or (iii)\nthe majority of the members of the Bank's (or NorthWest's) board of directors is replaced by directors whose\nappointment or election was not endorsed by a majority of the members of NorthWest before the date of the\nappointment or election.\nThe laws of the State of Indiana shall govern this Agreement. The Bank is based in Indiana, and the Employee\nunderstands and acknowledges its desire and need to defend any litigation against it in Indiana. Accordingly, the\nparties agree that any claim of any type brought by the Employee against the Bank or any of its employees or\nagents must be maintained only in a court sitting in Lake County, Indiana or, if a federal court, the Northern\n10.\nDistrict of Indiana, Hammond Division. The E mployee further understands and acknowledges that in the event the\nBank initiates litigation against him/her, the Bank may need to prosecute such litigation in the Employee's forum\nstate, in the State of Indiana or in such other states where the Employee is subject to personal jurisdiction.\nAccordingly, the parties agree that the Bank can pursue any claim against the Employee in any forum in which\nhe/she is subject to personal jurisdiction. The Employee specifically consents to persona jurisdiction in the State\nof Indiana, as well as any state in which a customer assigned to the mployee resides or is located.\nThe parties expressly agree that the terms of this Agreement are reasonable, enforceable, and necessary to\nprotect the Bank' interests and will not affect mployee's ability to earn a livelihood. In the unlikely event,\nhowever, that a court determines that any of the terms, provisions, or covenants contained in this Agreement are\nunreasonable, the court shall limit the application of such term, provision, or covenant, or modify any such term,\n11. provision, or covenant and proceed to enforce the Agreement as so limited or modified. Consequently, if any\nprovision of this Agreement is determined to be unenforceable, the remaining provisions shall remain in full force\nand effect. The parties further agree that if any provision is susceptible of two or more constructions, one of which\nwould render the provision unenforceable, then the provision shall be construed to have the meaning that renders\nit enforceable.\nmployee acknowledges and agrees that, after his/her separation of employment mployee will possess\nPeoples' trade secrets and Confidential Information which he/she would inevitably use if he/she were to engage in\n12.\nconduct prohibited above, that such use would be unfair, and extremely detrimental, to the Bank and, in view of\nthe benefits provided to Employee in this Agreement, that such conduct on Employee's part would be inequitable.\nAccordingly, Employee separately and severally agrees for the benefit of eoples to keep each of the covenants\ndescribed above throughout the one (1) year restricted period.\nmployee acknowledges and agrees that, in executing this Agreement he/she has not relied on any\n13.\nrepresentations or statements not set forth herein made by the Bank with regard to the subject matter, basis or\neffect of this Agreement, or otherwise mployee understands that this Agreement cannot be amended, modified,\nor waived, except by a writing signed by mployee and the Chief xecutive Officer of the Bank.\n3\n14.\nmployee acknowledges that he/she has a duty to contact the Bank if E mployee has any questions regarding\nwhether or not a particular employment or conduct would be restricted by this Agreement.\nmployee acknowledges that he/she has a duty to immediately inform the Bank in writing of any employment or\n15. similar relationship he/she enters into within one (1) year of his/her termination of employment (for whatever\nreason) with the Bank.\nE mployee acknowledges that the restricted period of time set forth herein (e.g., one (1) year) is a material term of\nthis Agreement and that the Bank is entitled to Employee's compliance with these terms during that full period of\n16.\ntime. Therefore, E mployee agrees that the restricted period of time is tolled during any period of non-compliance.\nIf the Bank must seek injunctive relief or judicial intervention, the restricted time period set forth herein does not\ncommence until Employee is judged by a court of competent jurisdiction to be in full compliance with this\nAgreement.\nThis Agreement constitutes the entire agreement of the parties and supersedes all prior agreements addressing\nthe terms, conditions and issues contained herein. Notwithstanding the foregoing, nothing in this Agreement is\n17.\nintended to or shall limit, supersede, nullify, or affect any other duty or responsibility :mployee may have or owe\nthe Bank by virtue of any separate agreement or otherwise.\n18.\nmployee acknowledges that any failure by the Bank to insist upon strict compliance with any terms or provisions\nof this Agreement shall not be deemed a waiver of any terms, provisions, or rights.\nE mployee acknowledges that his/her employment and/or continued employment with the Bank, the compensation\n19. paid to him/her by the Bank, and the Confidential Information and trade secrets provided to E mployee by Peoples\nare sufficient consideration for the covenants contained herein.\nEmployee certifies that he/she has carefully read the entire content of this Non-S olicitation and Confidentiality\nAgreement, that E mployee was afforded sufficient opportunity to obtain independent legal advice prior to\n20. executing this Agreement, and that Employee fully understands all of its terms, conditions and restrictions. In\naddition, E mployee acknowledges that any legal action taken by Peoples to enforce this Agreement shall not be\ndeemed an attempt to prevent mployee from obtaining other employment.\nPEOPLES BANK SB\nBy:\nEmployee Signature\nBenjamin Bochnowski\nPresident & Chief Executive Officer\nEmployee Printed Name\n[Signature Page to Non-Solicitation and Confidentiality Agreement]\n4 Exhibit 10.2\nNon-Solicitation and Confidentiality Agreement\nThis Non-Solicitation and Confidentiality Agreement (“Agreement”) is made on this ___ day of ____, between _______\n_____ ______ ____\n(the “Employee”) and Peoples Bank SB (the “Peoples” or “Bank”). In consideration of Employee’s\nemployment and continued employment, the payment of remuneration and benefits by the Bank and the Bank’s promise\nto provide Employee with access to customers, Confidential Information and trade secrets, which the parties recognize to\nbe good, valuable and sufficient consideration for the Agreement, Employee and the Bank agree as follows:\n1.\nEmployee agrees that during the term of his/her employment, and for a period of one year from the date of his/her\ntermination of employment for any reason, Employee will not, in a competitive capacity, on behalf of any person or\nentity other than the Bank, directly or indirectly:\n(a)\nsolicit, divert (or attempt to solicit or divert) or accept competitive business from any customer of the Bank\nwith whom Employee has had contact (either directly or indirectly), provided services to, or over which\nEmployee has had responsibility at any time in the one (1) year preceding his/her separation;\n(b)\nsolicit, divert (or attempt to solicit or divert) or accept competitive business from any customer of Bank about\nwhom Employee has obtained Confidential Information; and\n(c)\ndirectly or indirectly assist in the research and development of products or services where such research and\ndevelopment would be aided by any Confidential Information that Employee has learned in the course of his/her\nrelationship with the Bank.\nFor purposes of this Agreement, the term “competitive capacity” shall mean (i) performing tasks or duties\nsimilar to those Employee performed in his/her last year of employment at the Bank for a competitor of\nthe Bank; (ii) managing/supervising those who, for a competitor of the Bank, perform tasks or duties\nsimilar to those which Employee performed in the last year of his/her employment at Bank; or (iii)\nperforming, on behalf of a competitor of the Bank, tasks or duties in which Employee utilizes any\nConfidential Information that he/she learned in the course of his/her relationship with the Bank.\n2.\nEmployee acknowledges and agrees that as a result of his/her employment with the Bank, he/she will have\naccess to and be involved in the development and/or utilization of the Bank’s (and its parent’s, affiliates’ and/or\nsubsidiaries’) confidential and proprietary business information (“Confidential Information”). Accordingly,\nEmployee agrees that he/she shall not, either during his/her employment by the Bank or at any time thereafter,\ndisclose to anyone (except as authorized by the Bank in the furtherance of its business) or use in competition with\nPeoples, any of the Bank’s (or its parent’s, affiliate’s and/or subsidiaries’) Confidential Information. The Bank’s’\n(and its parent’s, affiliates’ and/or subsidiaries’) Confidential Information includes, without limitation, all materials\nand information (whether written or not) about Peoples’ contracts, business plans, business partners, customers\nand prospective customers (including their product requirements and payment terms), vendors, suppliers, current\nand prospective products and services, sales, marketing, pricing, costs, budgets, financing, promotions,\ntechniques, processes and forms, purchasing, finances, accounting, research, improvements, discoveries,\ninventions, experimental works-in-progress, formulae, software, licenses, business methods and tactics, quality\ncontrol parameters and techniques, internal communications, production, output, profit margins, and/or any other\naspect of the Bank’s business or operations (including, but not limited to, information concerning, relating to, or\narising out of relationships with suppliers, vendors, customers, lenders, or other business affiliates) which are not\ngenerally known by the public at large and/or which provide the Bank with a competitive advantage.\n3.\nEmployee recognizes that all information, however stored or memorialized, and all identification cards, keys, access codes,\nmarketing materials, samples, notes, customer, supplier and other lists, documents, forms, computers, records, and other\nequipment or property which the Bank provides to or makes available to him/her are the sole property of the Bank. Employee\nshall use such property solely for the benefit of Peoples and for no other purpose. Upon the cessation of his/her employment\nwith the Bank and without prior request, Employee shall (i) refrain from taking any such property from the Bank’s premises;\n(ii) immediately return to the Bank any such property that may be in his/her possession or control (including any and all\ncopies thereof); (iii) permanently delete any such property that may remain on any personal storage device that remains in\nEmployee’s possession after his/her employment ends; and (iv) certify in writing that Employee has complied with this\nparagraph.\n4.\nFor a period of one year after his/her termination, the Employee agrees that he/she will not, directly or indirectly,\nfor himself/herself or for any third party, solicit, induce, recruit, or cause another person in the employ of the Bank\n(i) who reported directly or indirectly to the Employee, (ii) whose confidential employment information was\naccessible by the Employee, or (iii) whose customer relationships were known to the Employee, to terminate\nhis/her employment for the purpose of joining, associating, or becoming employed with another person, business\norganization or other entity that is in competition with any product or service provided by the Bank, or any\nbusiness or activity of the Bank.\n5.\nEmployee agrees that it would be difficult to measure damages to the Bank from any breach of covenants contained in this\nAgreement, but that such damages from any breach would be great, incalculable, and irremediable, and that damages would\nbe an inadequate remedy. Accordingly, Employee agrees to waive any claim that Peoples has an adequate remedy at law and\nfurther agrees that the Bank may have specific performance of the terms of this Agreement in any court having jurisdiction.\nEmployee further agrees that if he/she violates this Agreement, the Employee hereby agrees to indemnify the\nBank against any and all damages, costs, and expenses, including reasonable attorneys’ fees, incurred by the\nBank in enforcing the terms of this Agreement, or prosecuting any action or claim arising by reason of the\nEmployee’s violation of this Agreement.\n6.\nThe existence of any claim or cause of action by Employee against the Bank shall not constitute a defense to the\nenforcement by the Bank of Paragraphs 1, 2, 3, and 4 of this Agreement.\n7.\nThis Agreement does not create any right to employment or employment contract between the Employee and the\nBank in which the Employer/Employee relationship is employment at will.\n8.\nThe Employee understands he/she may not assign this Agreement because it is the intent that he/she personally\nprovide services hereunder. The Bank may, however, unilaterally assign this Agreement to a related entity, a\nsuccessor, or an assign.\n2\n9.\nNotwithstanding the assignability language in Paragraph 8, the parties agree that, in the event of a Change in\nControl of the Bank or NorthWest Indiana Bancorp (“NorthWest”), the Employee will no longer be bound by the\nrestrictions in Paragraphs 1 and 4. For purposes of this Agreement, a Change in Control will occur if, within any\n12 month period, (i) any person, or more than one person acting as a group within the meaning of Section 13(d) of\nthe Securities Exchange Act of 1934, becomes the beneficial owner, directly or indirectly, of more than 50% of the\nissued and outstanding common stock of (or more than 50% of the total voting power of the stock of) the Bank (or\nNorthWest); (ii) any person, or more than one person acting as a group within the meaning of Section 13(d) of the\nSecurities Exchange Act of 1934, acquires all or substantially all of the assets of the Bank (or NorthWest); or (iii)\nthe majority of the members of the Bank’s (or NorthWest’s) board of directors is replaced by directors whose\nappointment or election was not endorsed by a majority of the members of NorthWest before the date of the\nappointment or election.\n10.\nThe laws of the State of Indiana shall govern this Agreement. The Bank is based in Indiana, and the Employee\nunderstands and acknowledges its desire and need to defend any litigation against it in Indiana. Accordingly, the\nparties agree that any claim of any type brought by the Employee against the Bank or any of its employees or\nagents must be maintained only in a court sitting in Lake County, Indiana or, if a federal court, the Northern\nDistrict of Indiana, Hammond Division. The Employee further understands and acknowledges that in the event the\nBank initiates litigation against him/her, the Bank may need to prosecute such litigation in the Employee’s forum\nstate, in the State of Indiana or in such other states where the Employee is subject to personal jurisdiction.\nAccordingly, the parties agree that the Bank can pursue any claim against the Employee in any forum in which\nhe/she is subject to personal jurisdiction. The Employee specifically consents to personal jurisdiction in the State\nof Indiana, as well as any state in which a customer assigned to the Employee resides or is located.\n11.\nThe parties expressly agree that the terms of this Agreement are reasonable, enforceable, and necessary to\nprotect the Bank’ interests and will not affect Employee’s ability to earn a livelihood. In the unlikely event,\nhowever, that a court determines that any of the terms, provisions, or covenants contained in this Agreement are\nunreasonable, the court shall limit the application of such term, provision, or covenant, or modify any such term,\nprovision, or covenant and proceed to enforce the Agreement as so limited or modified. Consequently, if any\nprovision of this Agreement is determined to be unenforceable, the remaining provisions shall remain in full force\nand effect. The parties further agree that if any provision is susceptible of two or more constructions, one of which\nwould render the provision unenforceable, then the provision shall be construed to have the meaning that renders\nit enforceable.\n12.\nEmployee acknowledges and agrees that, after his/her separation of employment, Employee will possess\nPeoples’ trade secrets and Confidential Information which he/she would inevitably use if he/she were to engage in\nconduct prohibited above, that such use would be unfair, and extremely detrimental, to the Bank and, in view of\nthe benefits provided to Employee in this Agreement, that such conduct on Employee’s part would be inequitable.\nAccordingly, Employee separately and severally agrees for the benefit of Peoples to keep each of the covenants\ndescribed above throughout the one (1) year restricted period.\n13.\nEmployee acknowledges and agrees that, in executing this Agreement, he/she has not relied on any\nrepresentations or statements not set forth herein made by the Bank with regard to the subject matter, basis or\neffect of this Agreement, or otherwise. Employee understands that this Agreement cannot be amended, modified,\nor waived, except by a writing signed by Employee and the Chief Executive Officer of the Bank.\n3\n14.\nEmployee acknowledges that he/she has a duty to contact the Bank if Employee has any questions regarding\nwhether or not a particular employment or conduct would be restricted by this Agreement.\n15.\nEmployee acknowledges that he/she has a duty to immediately inform the Bank in writing of any employment or\nsimilar relationship he/she enters into within one (1) year of his/her termination of employment (for whatever\nreason) with the Bank.\n16.\nEmployee acknowledges that the restricted period of time set forth herein (e.g., one (1) year) is a material term of\nthis Agreement and that the Bank is entitled to Employee’s compliance with these terms during that full period of\ntime. Therefore, Employee agrees that the restricted period of time is tolled during any period of non-compliance.\nIf the Bank must seek injunctive relief or judicial intervention, the restricted time period set forth herein does not\ncommence until Employee is judged by a court of competent jurisdiction to be in full compliance with this\nAgreement.\n17.\nThis Agreement constitutes the entire agreement of the parties and supersedes all prior agreements addressing\nthe terms, conditions and issues contained herein. Notwithstanding the foregoing, nothing in this Agreement is\nintended to or shall limit, supersede, nullify, or affect any other duty or responsibility Employee may have or owe\nthe Bank by virtue of any separate agreement or otherwise.\n18.\nEmployee acknowledges that any failure by the Bank to insist upon strict compliance with any terms or provisions\nof this Agreement shall not be deemed a waiver of any terms, provisions, or rights.\n19.\nEmployee acknowledges that his/her employment and/or continued employment with the Bank, the compensation\npaid to him/her by the Bank, and the Confidential Information and trade secrets provided to Employee by Peoples\nare sufficient consideration for the covenants contained herein.\n20.\nEmployee certifies that he/she has carefully read the entire content of this Non-Solicitation and Confidentiality\nAgreement, that Employee was afforded sufficient opportunity to obtain independent legal advice prior to\nexecuting this Agreement, and that Employee fully understands all of its terms, conditions and restrictions. In\naddition, Employee acknowledges that any legal action taken by Peoples to enforce this Agreement shall not be\ndeemed an attempt to prevent Employee from obtaining other employment.\nPEOPLES BANK SB\nBy:\nEmployee Signature\nBenjamin Bochnowski\nPresident & Chief Executive Officer\nEmployee Printed Name\n[Signature Page to Non-Solicitation and Confidentiality Agreement]\n4 54589bbc863f2a358ded8aff65a82bd5.pdf jurisdiction EXHIBIT A\nConfidentiality and Executive Restriction Agreement\nThis Confidentiality and Executive Restriction Agreement (“Confidentiality Agreement”) is between OceanFirst\nFinancial Corp. and its successors and assigns, and [•] (“Executive”). Capitalized terms not defined herein have the\nmeanings set forth in the Executive Employment Agreement between the Parties dated of even date herewith.\nRECITALS\nExecutive is employed as [•] for [•]. By virtue of his position with the Company, Executive has access to\nConfidential Information (defined below), which must remain confidential during and after his employment. Executive\nalso has access to important customer and employee relationships that must be protected from unfair competition or\nmisuse that might advantage others to the detriment of the Company.\nWith this agreement, the Company is providing Executive a Change in Control benefit to which he is not\notherwise entitled. The Change in Control benefits, Executive’s continuing employment with the Company, and access to\nConfidential Information and relationships with Company customers and employees all serve as consideration for the\nobligations stated in this Confidentiality Agreement.\nAGREEMENT\n1.“Confidential Information” means information concerning the business, operations, strategies, financial status,\nproducts, services, customer names, customer lists and customer information of the Company, which is confidential or\nproprietary to the Company. Confidential Information does not include information that: (a) is or becomes generally\navailable to the public through no fault or act of Executive in violation of this Confidentiality Agreement; (b) is or\nbecomes available to Executive on a non-confidential basis from a source other than the Company not known to\nExecutive to be prohibited from disclosing such information by a contractual, legal or fiduciary obligation of\nconfidentiality; (c) is independently developed by the Executive without use of or reliance on, either directly or\nindirectly, Confidential Information; or (d) was known to or in the possession of Executive on a non-confidential basis\nprior to disclosure by the Company.\n2.All Confidential Information is and shall remain the property of the Company. No license or conveyance of any\nright is granted or implied by the distribution of any Confidential Information to Executive. Executive agrees not to use,\nduplicate, or reproduce in any way any Confidential Information for Executive’s own benefit or financial gain, or for any\nthird party’s benefit or financial gain, except in connection with rendering services to the Company. All documents\n(originals and copies, including electronic versions) containing Confidential Information shall be returned to the\nCompany upon termination.\n3.During, and after the termination of, his employment, Executive agrees not to disclose any of the Company’s\nConfidential Information to any person or entity or use such Confidential Information to his own benefit or the benefit of\nany person or entity other than the Company. This provision shall not prohibit disclosure of Confidential Information\nduring Executive’s employment to an officer, employee, fiduciary or affiliate of the Company, or a Company vendor,\nprovided a third party outside the Company (such as a vendor) has signed a similar confidentiality agreement, or such\ndisclosure of Confidential Information is required by lawful judicial or governmental order. Executive agrees to give the\nCompany reasonable notice in writing in advance of releasing Confidential Information pursuant to any judicial or\ngovernmental order. Executive additionally agrees to implement and maintain at all times reasonably appropriate\nprocedures and controls to ensure at all times the security and confidentiality of all of the Company’s Confidential\nInformation, to protect against any anticipated threats or hazards to the security or integrity of such information; and to\nprotect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to\nthe Company or any customer of the Company. Executive agrees to notify the Company of any known security breach,\nany known unauthorized release of Confidential Information, or any known\nunauthorized attempt to access Confidential Information of which he becomes aware within a reasonable time of the\noccurrence of such event. Such notice will include, at a minimum, the date and time of any such event, the nature and\nextent of Confidential Information involved in any such event, and the corrective measures taken by Employee in\nresponse to any such event.\n4.As a material inducement for the Company’s willingness to enter into the Confidentiality Agreement and offer\nthe substantial benefits memorialized herein to Executive, and in order to protect the Company’s Confidential\nInformation, which Executive acknowledges is a substantial asset of the Company, the Executive agrees that during\nExecutive’s employment with the Company and/or a Successor Employer and for a period of twelve (12) months after\nthe Executive’s termination of employment (the “Restricted Period”), Executive will not, directly or indirectly, on her\nown or on behalf of any other entity: (a) induce, or attempt to induce, any employee, executive, or independent contractor\nof the Company to cease such employment or relationship with the Company; (b) engage, employ, contract with, or\nparticipate in ownership with any person who was an employee, executive, or independent contractor for the Company\nwithin the six (6) months immediately prior to such engagement, employment, contract or other business relationship on\nbehalf of any Competing Business (defined below); or (c) solicit, divert, appropriate to or accept on behalf of any\nCompeting Business, any business or account from any customer of the Company with whom Executive has interacted as\npart of his duties with the Company or about whom Executive has acquired confidential information in the course of his\nemployment, or encourage or entice any such customer to cease its business or banking relationship with the Company.\n“Competing Business” means any bank or thrift with an office or branch in any county where the Company has an office\nor branch.\n5.As a material inducement for the Company’s willingness to enter into the Confidentiality Agreement and offer\nthe substantial benefits memorialized herein to Executive, and in order to protect the Company’s Confidential\nInformation, which Executive acknowledges is a substantial asset of the Company, Executive agrees that during\nExecutive’s employment with the Company and/or a Successor Employer and for the Restricted Period, Executive will\nnot, except as an employee of the Company, in any capacity for Executive or for others, directly or indirectly, in any\ncounty in New Jersey in which the Company has an office or branch as of the date of the termination of Executive’s\nemployment (the “Market Area”): (a) compete or engage in any business, with an office or branch in the Market Area,\nthat is the same or similar, or offers competing products and services with those offered by the Company; or (b) take any\naction to invest in, own, manage, operate, control, participate in, be employed or engaged by, or be connected in any\nmanner with any partnership, corporation or other business or entity with a branch or office in the Market Area engaging\nin a business the same or similar, or which offers competing products and services as those offered by the Company;\nnotwithstanding the foregoing, Executive is permitted hereunder to own, directly or indirectly, up to three percent (3%)\nof the issued and outstanding securities of any publicly traded financial institution with an office or branch within the\nMarket Area\n6.Executive acknowledges and agrees that the restrictive covenants in this Confidentiality Agreement are\nreasonable and necessary to protect the Company’s goodwill, confidential and proprietary information, trade secrets,\nbusiness strategies, customer relationships and other legitimate business interests, that irreparable injury will result to the\nCompany if Executive breaches or threatens to breach any terms of the Confidentiality Agreement, and that in the event\nExecutive breaches or threatens to breach any terms of the Confidentiality Agreement, the Company will have no\nadequate remedy at law. Executive accordingly agrees that in the event of any actual or threatened breach by him of any\nof the terms of the Confidentiality Agreement, the Company shall be entitled to immediate temporary injunctive and\nother equitable relief, and without the necessity of showing actual monetary damages, subject to hearing as soon\nthereafter as possible. Nothing contained herein shall be construed as prohibiting the Company from pursuing any other\nremedies available to it for such breach or threatened breach, including the recovery of any damages which it is able to\nprove.\n7.Executive agrees that a successor in interest to the Company may enforce the rights set forth in this\nConfidentiality Agreement following a change of control, without further express consent by Executive and that the\nCompany may, at its option, assign its rights to any successor or assign. Any amendment to or modification of this\nConfidentiality Agreement, or waiver of any obligation hereunder, shall be in writing signed by the party to be bound\nthereby. Any waiver by the Company of a breach of any provision of this Confidentiality Agreement shall not operate\nor be construed as a waiver of any subsequent breach of the provision or as a waiver of a breach of any other provision of\nthis Confidentiality Agreement.\n8.This Confidentiality Agreement shall be governed by the law of the State of New Jersey. This Confidentiality\nAgreement sets forth the entire agreement, and supersedes any prior agreements, with regard to the subject matter hereof.\nExecutive acknowledges that he has carefully read all of the provisions of this Confidentiality Agreement and agree that\n(a) the same are necessary for the reasonable and proper protection of the Company’s business, (b) every provision of this\nConfidentiality Agreement is reasonable with respect to its scope and duration and (c) he has received a copy of this\nConfidentiality Agreement and had the opportunity to review it with legal counsel, at his option. If either Party to this\nConfidentiality Agreement commences legal action to enforce any rights arising out of or relating to this Confidentiality\nAgreement, the prevailing Party in any such action shall be entitled to recover reasonable attorneys’ fees and costs,\nincluding fees and costs on appeal. The venue for any legal action shall be Toms River, New Jersey. If a court of law\nholds any provision of this Confidentiality Agreement to be illegal, invalid or unenforceable, (a) that provision shall be\ndeemed amended to achieve an economic effect that is as near as possible to that provided by the original provision and\n(b) the legality, validity and enforceability of the remaining provisions of this Confidentiality Agreement shall not be\naffected.\nIN WITNESS WHEREOF, the parties have executed and entered into this Confidentiality Agreement effective\non [•] day of [•], 2017.\n[Executive]\nOCEANFIRST FINANCIAL CORP.\nBy:\nName:\nTitle: EX HIBIT A\nConfidentiality and Executive Restriction Agreement\nThis Confidentiality and Executive Restriction Agreement (”Confidentiality Agreemen ”) is between OceanFirst\nFinancial Corp. and its successors and assigns, and [°] (”Executive”). Capitalized terms not defined herein have the\nmeanings set forth in the Executive Employment Agreement between the Parties dated of even date herewith.\nRECITALS\nExecutive is employed as [°] for H. By virtue of his position with the Company, Executive has access to\nConfidential Information (defined below), which must remain confidential during and after his employment. Executive\nalso has access to important customer and employee relationships that must be protected from unfair competition or\nmisuse that might advantage others to the detriment of the Company.\nWith this agreement, the Company is providing Executive a Change in Control benefit to which he is not\notherwise entitled. The Change in Control benefits, Executive’s continuing employment with the Company, and access to\nConfidential Information and relationships with Company customers and employees all serve as consideration for the\nobligations stated in this Confidentiality Agreement.\nAGREEMENT\n1.”Confidential Information” means information concerning the business, operations, strategies, financial status,\nproducts, services, customer names, customer lists and customer information of the Company, which is confidential or\nproprietary to the Company. Confidential Information does not include information that: (a) is or becomes generally\navailable to the public through no fault or act of Executive in violation of this Confidentiality Agreement; (b) is or\nbecomes available to Executive on a non-confidential basis from a source other than the Company not known to\nExecutive to be prohibited from disclosing such information by a contractual, legal or fiduciary obligation of\nconfidentiality,- (c) is independently developed by the Executive without use of or reliance on, either directly or\nindirectly, Confidential Information,- or (d) was known to or in the possession of Executive on a non-confidential basis\nprior to disclosure by the Company.\n2.All Confidential Information is and shall remain the property of the Company. No license or conveyance of any\nright is granted or implied by the distribution of any Confidential Information to Executive. Executive agrees not to use,\nduplicate, or reproduce in any way any Confidential Information for Executive’s own benefit or financial gain, or for any\nthird party’s benefit or financial gain, except in connection with rendering services to the Company. All documents\n(originals and copies, including electronic versions) containing Confidential Information shall be returned to the\nCompany upon termination.\n3.During, and after the termination of, his employment, Executive agrees not to disclose any of the Company’s\nConfidential Information to any person or entity or use such Confidential Information to his own benefit or the benefit of\nany person or entity other than the Company. This provision shall not prohibit disclosure of Confidential Information\nduring Executive’s employment to an officer, employee, fiduciary or affiliate of the Company, or a Company vendor,\nprovided a third party outside the Company (such as a vendor) has signed a similar confidentiality agreement, or such\ndisclosure of Confidential Information is required by lawful judicial or governmental order. Executive agrees to give the\nCompany reasonable notice in writing in advance of releasing Confidential Information pursuant to any judicial or\ngovernmental order. Executive additionally agrees to implement and maintain at all times reasonably appropriate\nprocedures and controls to ensure at all times the security and confidentiality of all of the Company’s Confidential\nInformation, to protect against any anticipated threats or hazards to the security or integrity of such information,- and to\nprotect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to\nthe Company or any customer of the Company. Executive agrees to notify the Company of any known security breach,\nany known unauthorized release of Confidential Information, or any known\nunauthorized attempt to access Confidential Information of which he becomes aware within a reasonable time of the\noccurrence of such event. Such notice will include, at a minimum, the date and time of any such event, the nature and\nextent of Confidential Information involved in any such event, and the corrective measures taken by Employee in\nresponse to any such event.\n4.As a material inducement for the Company’s willingness to enter into the Confidentiality Agreement and offer\nthe substantial benefits memorialized herein to Executive, and in order to protect the Company’s Confidential\nInformation, which Executive acknowledges is a substantial asset of the Company, the Executive agrees that during\nExecutive’s employment with the Company and/or a Successor Employer and for a period of twelve (12) months after\nthe Executive’s termination of employment (the ”Restricted Period”), Executive will not, directly or indirectly, on her\nown or on behalf of any other entity: (a) induce, or attempt to induce, any employee, executive, or independent contractor\nof the Company to cease such employment or relationship with the Company,- (b) engage, employ, contract with, or\nparticipate in ownership with any person who was an employee, executive, or independent contractor for the Company\nwithin the six (6) months immediately prior to such engagement, employment, contract or other business relationship on\nbehalf of any Competing Business (defined below),- or (c) solicit, divert, appropriate to or accept on behalf of any\nCompeting Business, any business or account from any customer of the Company with whom Executive has interacted as\npart of his duties with the Company or about whom Executive has acquired confidential information in the course of his\nemployment, or encourage or entice any such customer to cease its business or banking relationship with the Company.\n” ompeting Business” means any bank or thrift with an office or branch in any county where the Company has an office\nor branch.\n5.As a material inducement for the Company’s willingness to enter into the Confidentiality Agreement and offer\nthe substantial benefits memorialized herein to Executive, and in order to protect the Company’s Confidential\nInformation, which Executive acknowledges is a substantial asset of the Company, Executive agrees that during\nExecutive’s employment with the Company and/or a Successor Employer and for the Restricted Period, Executive will\nnot, except as an employee of the Company, in any capacity for Executive or for others, directly or indirectly, in any\ncounty in New Jersey in which the Company has an office or branch as of the date of the termination of Executive’s\nemployment (the ”Market Area”): (a) compete or engage in any business, with an office or branch in the Market Area,\nthat is the same or similar, or offers competing products and services with those offered by the Company,- or (b) take any\naction to invest in, own, manage, operate, control, participate in, be employed or engaged by, or be connected in any\nmanner with any partnership, corporation or other business or entity with a branch or office in the Market Area engaging\nin a business the same or similar, or which offers competing products and services as those offered by the Company,-\nnotwithstanding the foregoing, Executive is permitted hereunder to own, directly or indirectly, up to three percent (3%)\nof the issued and outstanding securities of any publicly traded financial institution with an office or branch within the\nMarket Area\n6.Executive acknowledges and agrees that the restrictive covenants in this Confidentiality Agreement are\nreasonable and necessary to protect the Company’s goodwill, confidential and proprietary information, trade secrets,\nbusiness strategies, customer relationships and other legitimate business interests, that irreparable injury will result to the\nCompany if Executive breaches or threatens to breach any terms of the Confidentiality Agreement, and that in the event\nExecutive breaches or threatens to breach any terms of the Confidentiality Agreement, the Company will have no\nadequate remedy at law. Executive accordingly agrees that in the event of any actual or threatened breach by him of any\nof the terms of the Confidentiality Agreement, the Company shall be entitled to immediate temporary injunctive and\nother equitable relief, and without the necessity of showing actual monetary damages, subject to hearing as soon\nthereafter as possible. Nothing contained herein shall be construed as prohibiting the Company from pursuing any other\nremedies available to it for such breach or threatened breach, including the recovery of any damages which it is able to\nprove.\n7.Executive agrees that a successor in interest to the Company may enforce the rights set forth in this\nConfidentiality Agreement following a change of control, without further express consent by Executive and that the\nCompany may, at its option, assign its rights to any successor or assign. Any amendment to or modification of this\nConfidentiality Agreement, or waiver of any obligation hereunder, shall be in writing signed by the party to be bound\nthereby. Any waiver by the Company of a breach of any provision of this Confidentiality Agreement shall not operate\nor be construed as a waiver of any subsequent breach of the provision or as a waiver of a breach of any other provision of\nthis Confidentiality Agreement.\n8.This Confidentiality Agreement shall be governed by the law of the State of New Jersey. This Confidentiality\nAgreement sets forth the entire agreement, and supersedes any prior agreements, with regard to the subject matter hereof.\nExecutive acknowledges that he has carefully read all of the provisions of this Confidentiality Agreement and agree that\n(a) the same are necessary for the reasonable and proper protection of the Company’s business, (b) every provision of this\nConfidentiality Agreement is reasonable with respect to its scope and duration and (c) he has received a copy of this\nConfidentiality Agreement and had the opportunity to review it with legal counsel, at his option. If either Party to this\nConfidentiality Agreement commences legal action to enforce any rights arising out of or relating to this Confidentiality\nAgreement, the prevailing Party in any such action shall be entitled to recover reasonable attorneys’ fees and costs,\nincluding fees and costs on appeal. The venue for any legal action shall be Toms River, New Jersey. If a court of law\nholds any provision of this Confidentiality Agreement to be illegal, invalid or unenforceable, (a) that provision shall be\ndeemed amended to achieve an economic effect that is as near as possible to that provided by the original provision and\n(b) the legality, validity and enforceability of the remaining provisions of this Confidentiality Agreement shall not be\naffected.\nIN WITNESS WHEREO F, the parties have executed and entered into this Confidentiality Agreement effective\non['] day of['], 2017.\n[Executive]\n0C EANFIRST FINANCIAL CORP.\nBy:\nName:\nTitle: EXHIBIT A\nConfidentiality and Executive Restriction Agreement\nThis Confidentiality and Executive Restriction greement ("Confidentiality Agreement") is between OceanFirst\nFinancial Corp. and its successors and assigns, and [-] ("Executive"). Capitalized terms not defined herein have the\nmeanings set forth in the Executive Employment A greement between the Parties dated of even date herewith.\nRECITALS\nExecutive is employed as [] for []. By virtue of his position with the Company, Executive has access to\nConfidential Information (defined below), which must remain confidential during and after his employment. Executive\nalso has access to important customer and employee relationships that must be protected from unfair competition or\nmisuse that might advantage others to the detriment of the Company.\nWith this agreement, the Company is providing Executive a Change in Control benefit to which he is not\notherwise entitled The Change in Control benefits, Executive's continuing employment with the Company, and access to\nConfidential Information and relationships with Company customers and employees all serve as consideration for the\nobligations stated in this Confidentiality Agreement.\nAGREEMENT\n."Confidential Information" means information concerning the business, operations, strategies, financial status,\nproducts, services, customer names, customer lists and customer information of the Company, which is confidential or\nproprietary to the Company. Confidential Information does not include information that: (a) is or becomes generally\navailable to the public through no fault or act of Executive in violation of this Confidentiality Agreement; (b) is or\nbecomes available to Executive on a non-confidential basis from a source other than the Company not known to\nExecutive to be prohibited from disclosing such information by a contractual, legal or fiduciary obligation of\nconfidentiality; (c) is independently developed by the Executive without use of or reliance on, either directly or\nindirectly, Confidential Information; or (d) was known to or in the possession of Executive on a non-confidential basis\nprior to disclosure by the Company.\n2.All Confidential Information is and shall remain the property of the Company. No license or conveyance of any\nright is granted or implied by the distribution of any Confidential Information to Executive. Executive agrees not to use,\nduplicate, or reproduce in any way any Confidential Information for Executive's own benefit or financial gain or for any\nthird party's benefit or financial gain, except in connection with rendering services to the Company. All documents\n(originals and copies, including electronic versions) containing Confidential Information shall be returned to the\nCompany upon termination.\n3.During, and after the termination of, his employment Executive agrees not to disclose any of the Company's\nConfidential Information to any person or entity or use such Confidential Information to his own benefit or the benefit of\nany person or entity other than the Company. This provision shall not prohibit disclosure of Confidential Information\nduring Executive's employment to an officer, employee, fiduciary or affiliate of the Company, or a Company vendor,\nprovided a third party outside the Company (such as a vendor) has signed a similar confidentiality agreement, or such\ndisclosure of Confidential Information is required by lawful judicial or governmental order. Executive agrees to give the\nCompany reasonable notice in writing in advance of releasing Confidential Information pursuant to any judicial or\ngovernmental order. Executive additionally agrees to implement and maintain at all times reasonably appropriate\nprocedures and controls to ensure at all times the security and confidentiality of all of the Company's Confidential\nInformation, to protect against any anticipated threats or hazards to the security or integrity of such information; and to\nprotect\nagainst unauthorized access to or use of such information that could result in substantial harm or inconvenience\nto\nthe Company or any customer of the Company. Executive agrees to notify the Company of any known security breach\nany known unauthorized release of Confidential Information, or any known\nunauthorized attempt to access Confidentia Information of which he becomes aware within a reasonable time of the\noccurrence of such event. Such notice will include, at a minimum, the date and time of any such event the nature and\nextent of Confidential Information involved in any such event, and the corrective measures taken by Employee in\nresponse to any such event.\n4.As a material inducement for the Company's willingness to enter into the Confidentiality Agreement and offer\nthe substantial benefits memorialized herein to Executive, and in order to protect the Company's Confidential\nInformation which Executive acknowledges is a substantial asset of the Company, the Executive agrees that during\nExecutive's\nemployment\nwith\nthe\nCompany\nand/or\na\nSuccessor\nEmployer\nand\nfor\na\nperiod\nof\ntwelve\n(12)\nmonths\nafter\nthe Executive's termination of employment (the "Restricted Period"), Executive will not, directly or indirectly, on her\nown or on behalf of any other entity: (a) induce, or attempt to induce, any employee, executive, or independent contractor\nof\nthe\nCompany\nto\ncease\nsuch\nemployment\nor\nrelationship\nwith\nthe\nCompany;\n(b)\nengage,\nemploy,\ncontract\nwith,\nor\nparticipate in ownership with any person who was an employee executive, or independent contractor for the Company\nwithin the six (6) months immediately prior to such engagement, employment, contract or other business relationship on\nbehalf of any Competing Business (defined below); or (c) solicit, divert, appropriate to or accept on behalf of any\nCompeting Business, any business or account from any customer of the Company with whom Executive has interacted as\npart of his duties with the Company or about whom Executive has acquired confidential information in the course of his\nemployment, or encourage or entice any such customer to cease its business or banking relationship with the Company.\n"Competing Business" means any bank or thrift with an office or branch in any county where the Company has an office\nor branch.\n5.As a material inducement for the Company's willingness to enter into the Confidentiality Agreement and offer\nthe substantial benefits memorialized herein to Executive, and in order to protect the Company's Confidential\nInformation, which Executive acknowledges is a substantia asset of the Company, Executive agrees that during\nExecutive's\nemployment\nwith\nthe\nCompany\nand/or\na\nSuccessor\nEmployer\nand\nfor\nthe\nRestricted\nPeriod,\nExecutive\nwill\nnot, except as an employee of the Company, in any capacity for Executive or for others, directly or indirectly, in any\ncounty in New Jersey in which the Company has an office or branch as of the date of the termination of Executive's\nemployment\n(the\n"Market\nArea"):\n(a)\ncompete\nor\nengage\nin\nany\nbusiness,\nwith\nan\noffice\nor\nbranch\nin\nthe\nMarket\nArea,\nthat is the same or similar, or offers competing products and services with those offered by the Company; or (b) take any\naction to invest in, own, manage, operate, control, participate in, be employed or engaged by, or be connected in any\nmanner with any partnership, corporation or other business or entity with a branch or office in the Market rea engaging\nin a business the same or similar, or which offers competing products and services as those offered by the Company;\nnotwithstanding the foregoing, Executive is permitted hereunder to own, directly or indirectly, up to three percent (3%)\nof the issued and outstanding securities of any publicly traded financial institution with an office or branch within the\nMarket Area\n6.Executive acknowledges and agrees that the restrictive covenants in this Confidentiality Agreement are\nreasonable\nand\nnecessary\nto\nprotect\nthe\nCompany's\ngoodwill,\nconfidential\nand\nproprietary\ninformation,\ntrade\nsecrets,\nbusiness strategies, customer relationships and other legitimate business interests, that irreparable injury will result to the\nCompany if Executive breaches or threatens to breach any terms of the Confidentiality Agreement, and that in the event\nExecutive\nbreaches\nor\nthreatens\nto\nbreach\nany\nterms\nof\nthe\nConfidentiality\ngreement,\nthe\nCompany\nwill\nhave\nno\nadequate remedy at law. Executive accordingly agrees that in the event of any actual or threatened breach by him of any\nof the terms of the Confidentiality Agreement, the Company shall be entitled to immediate temporary injunctive and\nother equitable relief and without the necessity of showing actual monetary damages, subject to hearing as soon\nthereafter as possible Nothing contained herein shall be construed as prohibiting the Company from pursuing any other\nremedies available to it for such breach or threatened breach, including the recovery of any damages which it is able to\nprove.\n7.Executive agrees that a successor in interest to the Company may enforce the rights set forth in this\nConfidentiality Agreement following a change of control, without further express consent by Executive and that the\nCompany\nmay,\nat\nits\noption,\nassign\nits\nrights\nto\nany\nsuccessor\nor\nassign.\nAny\namendment\nto\nor\nmodification\nof\nthis\nConfidentiality greement, or waiver of any obligation hereunder, shall be in writing signed by the party to be bound\nthereby. Any waiver by the Company of a breach of any provision of this Confidentiality A greement shall not operate\nor be construed as a waiver of any subsequent breach of the provision or as a waiver of a breach of any other provision of\nthis Confidentiality A greement.\n8.This Confidentiality A greement shall be governed by the law of the State of New Jersey This Confidentiality\nAgreement sets forth the entire agreement, and supersedes any prior agreements, with regard to the subject matter hereof.\nExecutive acknowledges that he has carefully read all of the provisions of this Confidentiality A greement and agree that\n(a) the same are necessary for the reasonable and proper protection of the Company's business, (b) every provision of this\nConfidentiality Agreement is reasonable with respect to its scope and duration and (c) he has received a copy of this\nConfidentiality A greement and had the opportunity to review it with legal counsel, at his option. If either Party to this\nConfidentiality A greement commences legal action to enforce any rights arising out of or relating to this Confidentiality\nAgreement, the prevailing Party in any such action shall be entitled to recover reasonable attorneys' fees and costs,\nincluding\nfees\nand\ncosts\non\nappeal.\nThe\nvenue\nfor\nany\nlegal\naction\nshall\nbe\nToms\nRiver,\nNew\nJersey.\nIf\na\ncourt\nof\nlaw\nholds any provision of this Confidentiality Agreement to be illegal, invalid or unenforceable, (a) that provision shall be\ndeemed amended to achieve an economic effect that is as near as possible to that provided by the original provision and\n(b)\nthe legality, validity and enforceability of the remaining provisions of this Confidentiality Agreement shall not be\naffected.\nIN WITNESS WHEREOF, the parties have executed and entered into this Confidentiality Agreement effective\non day of [], 2017.\n[Executive]\nOCEANFIRST FINANCIAL CORP.\nBy:\nName:\nTitle: EXHIBIT A\nConfidentiality and Executive Restriction Agreement\nThis Confidentiality and Executive Restriction Agreement (“Confidentiality Agreement”) is between OceanFirst\nFinancial Corp. and its successors and assigns, and [•] (“Executive”). Capitalized terms not defined herein have the\nmeanings set forth in the Executive Employment Agreement between the Parties dated of even date herewith.\nRECITALS\nExecutive is employed as [•] for [•]. By virtue of his position with the Company, Executive has access to\nConfidential Information (defined below), which must remain confidential during and after his employment. Executive\nalso has access to important customer and employee relationships that must be protected from unfair competition or\nmisuse that might advantage others to the detriment of the Company.\nWith this agreement, the Company is providing Executive a Change in Control benefit to which he is not\notherwise entitled. The Change in Control benefits, Executive’s continuing employment with the Company, and access to\nConfidential Information and relationships with Company customers and employees all serve as consideration for the\nobligations stated in this Confidentiality Agreement.\nAGREEMENT\n1.“Confidential Information” means information concerning the business, operations, strategies, financial status,\nproducts, services, customer names, customer lists and customer information of the Company, which is confidential or\nproprietary to the Company. Confidential Information does not include information that: (a) is or becomes generally\navailable to the public through no fault or act of Executive in violation of this Confidentiality Agreement; (b) is or\nbecomes available to Executive on a non-confidential basis from a source other than the Company not known to\nExecutive to be prohibited from disclosing such information by a contractual, legal or fiduciary obligation of\nconfidentiality; (c) is independently developed by the Executive without use of or reliance on, either directly or\nindirectly, Confidential Information; or (d) was known to or in the possession of Executive on a non-confidential basis\nprior to disclosure by the Company.\n2.All Confidential Information is and shall remain the property of the Company. No license or conveyance of any\nright is granted or implied by the distribution of any Confidential Information to Executive. Executive agrees not to use,\nduplicate, or reproduce in any way any Confidential Information for Executive’s own benefit or financial gain, or for any\nthird party’s benefit or financial gain, except in connection with rendering services to the Company. All documents\n(originals and copies, including electronic versions) containing Confidential Information shall be returned to the\nCompany upon termination.\n3.During, and after the termination of, his employment, Executive agrees not to disclose any of the Company’s\nConfidential Information to any person or entity or use such Confidential Information to his own benefit or the benefit of\nany person or entity other than the Company. This provision shall not prohibit disclosure of Confidential Information\nduring Executive’s employment to an officer, employee, fiduciary or affiliate of the Company, or a Company vendor,\nprovided a third party outside the Company (such as a vendor) has signed a similar confidentiality agreement, or such\ndisclosure of Confidential Information is required by lawful judicial or governmental order. Executive agrees to give the\nCompany reasonable notice in writing in advance of releasing Confidential Information pursuant to any judicial or\ngovernmental order. Executive additionally agrees to implement and maintain at all times reasonably appropriate\nprocedures and controls to ensure at all times the security and confidentiality of all of the Company’s Confidential\nInformation, to protect against any anticipated threats or hazards to the security or integrity of such information; and to\nprotect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to\nthe Company or any customer of the Company. Executive agrees to notify the Company of any known security breach,\nany known unauthorized release of Confidential Information, or any known\nunauthorized attempt to access Confidential Information of which he becomes aware within a reasonable time of the\noccurrence of such event. Such notice will include, at a minimum, the date and time of any such event, the nature and\nextent of Confidential Information involved in any such event, and the corrective measures taken by Employee in\nresponse to any such event.\n4.As a material inducement for the Company’s willingness to enter into the Confidentiality Agreement and offer\nthe substantial benefits memorialized herein to Executive, and in order to protect the Company’s Confidential\nInformation, which Executive acknowledges is a substantial asset of the Company, the Executive agrees that during\nExecutive’s employment with the Company and/or a Successor Employer and for a period of twelve (12) months after\nthe Executive’s termination of employment (the “Restricted Period”), Executive will not, directly or indirectly, on her\nown or on behalf of any other entity: (a) induce, or attempt to induce, any employee, executive, or independent contractor\nof the Company to cease such employment or relationship with the Company; (b) engage, employ, contract with, or\nparticipate in ownership with any person who was an employee, executive, or independent contractor for the Company\nwithin the six (6) months immediately prior to such engagement, employment, contract or other business relationship on\nbehalf of any Competing Business (defined below); or (c) solicit, divert, appropriate to or accept on behalf of any\nCompeting Business, any business or account from any customer of the Company with whom Executive has interacted as\npart of his duties with the Company or about whom Executive has acquired confidential information in the course of his\nemployment, or encourage or entice any such customer to cease its business or banking relationship with the Company.\n“Competing Business” means any bank or thrift with an office or branch in any county where the Company has an office\nor branch.\n5.As a material inducement for the Company’s willingness to enter into the Confidentiality Agreement and offer\nthe substantial benefits memorialized herein to Executive, and in order to protect the Company’s Confidential\nInformation, which Executive acknowledges is a substantial asset of the Company, Executive agrees that during\nExecutive’s employment with the Company and/or a Successor Employer and for the Restricted Period, Executive will\nnot, except as an employee of the Company, in any capacity for Executive or for others, directly or indirectly, in any\ncounty in New Jersey in which the Company has an office or branch as of the date of the termination of Executive’s\nemployment (the “Market Area”): (a) compete or engage in any business, with an office or branch in the Market Area,\nthat is the same or similar, or offers competing products and services with those offered by the Company; or (b) take any\naction to invest in, own, manage, operate, control, participate in, be employed or engaged by, or be connected in any\nmanner with any partnership, corporation or other business or entity with a branch or office in the Market Area engaging\nin a business the same or similar, or which offers competing products and services as those offered by the Company;\nnotwithstanding the foregoing, Executive is permitted hereunder to own, directly or indirectly, up to three percent (3%)\nof the issued and outstanding securities of any publicly traded financial institution with an office or branch within the\nMarket Area\n6.Executive acknowledges and agrees that the restrictive covenants in this Confidentiality Agreement are\nreasonable and necessary to protect the Company’s goodwill, confidential and proprietary information, trade secrets,\nbusiness strategies, customer relationships and other legitimate business interests, that irreparable injury will result to the\nCompany if Executive breaches or threatens to breach any terms of the Confidentiality Agreement, and that in the event\nExecutive breaches or threatens to breach any terms of the Confidentiality Agreement, the Company will have no\nadequate remedy at law. Executive accordingly agrees that in the event of any actual or threatened breach by him of any\nof the terms of the Confidentiality Agreement, the Company shall be entitled to immediate temporary injunctive and\nother equitable relief, and without the necessity of showing actual monetary damages, subject to hearing as soon\nthereafter as possible. Nothing contained herein shall be construed as prohibiting the Company from pursuing any other\nremedies available to it for such breach or threatened breach, including the recovery of any damages which it is able to\nprove.\n7.Executive agrees that a successor in interest to the Company may enforce the rights set forth in this\nConfidentiality Agreement following a change of control, without further express consent by Executive and that the\nCompany may, at its option, assign its rights to any successor or assign. Any amendment to or modification of this\nConfidentiality Agreement, or waiver of any obligation hereunder, shall be in writing signed by the party to be bound\nthereby. Any waiver by the Company of a breach of any provision of this Confidentiality Agreement shall not operate\nor be construed as a waiver of any subsequent breach of the provision or as a waiver of a breach of any other provision of\nthis Confidentiality Agreement.\n8.This Confidentiality Agreement shall be governed by the law of the State of New Jersey. This Confidentiality\nAgreement sets forth the entire agreement, and supersedes any prior agreements, with regard to the subject matter hereof.\nExecutive acknowledges that he has carefully read all of the provisions of this Confidentiality Agreement and agree that\n(a) the same are necessary for the reasonable and proper protection of the Company’s business, (b) every provision of this\nConfidentiality Agreement is reasonable with respect to its scope and duration and (c) he has received a copy of this\nConfidentiality Agreement and had the opportunity to review it with legal counsel, at his option. If either Party to this\nConfidentiality Agreement commences legal action to enforce any rights arising out of or relating to this Confidentiality\nAgreement, the prevailing Party in any such action shall be entitled to recover reasonable attorneys’ fees and costs,\nincluding fees and costs on appeal. The venue for any legal action shall be Toms River, New Jersey. If a court of law\nholds any provision of this Confidentiality Agreement to be illegal, invalid or unenforceable, (a) that provision shall be\ndeemed amended to achieve an economic effect that is as near as possible to that provided by the original provision and\n(b) the legality, validity and enforceability of the remaining provisions of this Confidentiality Agreement shall not be\naffected.\nIN WITNESS WHEREOF, the parties have executed and entered into this Confidentiality Agreement effective\non [•] day of [•], 2017.\n[Executive]\nOCEANFIRST FINANCIAL CORP.\nBy:\nName:\nTitle: 5646698b1542fd5a4d4b7bc60d84b8fd.pdf effective_date jurisdiction party term EX-99.1 2 dex991.htm SEVERANCE AND CONFIDENTIALITY AGREEMENT\nEXHIBIT 99.1\nSEVERANCE AND CONFIDENTIALITY AGREEMENT\nAND GENERAL AND SPECIAL RELEASE\nThis Severance and Confidentiality Agreement and General and Special Release (the “Agreement”) is entered into as of this 17th day of\nMay, 2005, by and between Patricia Sueltz (the “Employee”), on the one hand, and salesforce.com, inc. (together with its subsidiary and affiliated\ncorporations and entities, the “Company”), on the other hand (collectively, the “Parties”).\nWHEREAS, Employee is employed by the Company in San Francisco, California at its headquarters location;\nWHEREAS, the Company and Employee mutually agree to resolve all outstanding differences and to terminate Employee’s\nemployment relationship with the Company in an orderly manner. In addition, the Company wishes to continue to safeguard its proprietary and\nconfidential information;\nTHEREFORE, in consideration of the promises and mutual covenants contained herein, and for other good and valuable consideration,\nthe receipt and sufficiency of which are expressly acknowledged, the Parties agree as follows:\nAGREEMENT\n1. Employee’s Resignation. Pursuant to this Agreement, Employee will voluntarily resign from her position with the Company as of May\n31, 2005 (the “Effective Date”).\n2. Severance Payment. In consideration for Employee’s (a) resignation, (b) release of any and all claims she may have against the\nCompany, if any, and (c) adherence to each of the terms and conditions of this Agreement, including, without limitation, Employee’s obligations\nunder Section 3, and provided that Employee has signed this Agreement and has not later revoked it, the Parties agree as follows:\na) Severance Payment. Within ten (10) days after the later to occur of (i) the Effective Date, or (ii) the date on which Employee\nhas signed this Agreement and returned it to the Company, and provided that Employee has not revoked this Agreement pursuant to Section 4,\nbelow, the Company shall make a lump sum payment to Employee in the amount of Six Hundred and Fifty Thousand Dollars ($650,000.00) (the\n“Severance Payment”), less applicable taxes, withholdings, and deductions required by law.\nb) No Other Compensation or Benefits. Employee acknowledges and agrees that she has been paid by the Company all salary,\nbenefits or other compensation (including any accrued but unpaid vacation pay) to which Employee is entitled. Moreover, except as provided in this\nAgreement, Employee shall not be entitled to receive any other\ncompensation or benefits of any sort from the Company, its affiliates, or their officers, directors, employees, agents, insurance companies, attorneys,\nshareholders, or subsidiaries for, without limitation, salary, vacation, bonuses, stock, stock options, health care continuation coverage or any other\ncompensation or benefits.\nc) No Claims or Lawsuits. Employee represents that she has not filed or asserted any complaints, claims, or actions against the\nReleased Parties (defined below) with any state, federal, or local governmental agency or court or arbitrator and that she will not do so at any time\nhereafter, and that if any agency, court, or arbitrator assumes jurisdiction of any complaint, claim, or action against the Released Parties, Employee\nwill direct that agency, court, or arbitrator to withdraw from or dismiss with prejudice the matter;\nd) No Assistance. Employee understands that if this Agreement were not signed, she would have the right to voluntarily assist\nother individuals or entities in bringing claims against the Company. Employee further understands and agrees that she waives such right and she\nshall not aid or assist others in their pursuit of claims against the Company unless (1) Employee is required to provide such assistance pursuant to a\ncourt order, or (2) Employee’s assistance is sought by the EEOC or any other federal, state or local governmental entity.\ne) No Admission. This Agreement and compliance with this Agreement shall not be construed as an admission by the Company\nof any liability whatsoever, or as an admission by the Company of any violation of the rights of Employee or any person, or any violation of any\norder, law, statute, duty, or contract whatsoever against Employee or any person. The Company specifically denies and disclaims any liability to\nEmployee or any other person for any alleged violation of the rights of Employee or any person, or for any alleged violation of any order, law,\nstatute, duty, or contract on the part of the Company, its employees or agents or affiliated entities or their employees or agents.\n3. General and Special Release. As a material inducement for the Company to enter into this Agreement, Employee hereby forever\nreleases and discharges the Company, its subsidiary and affiliated corporations and entities, and their respective past and present officers, directors,\nmanagers, employees, agents, attorneys, successors and assigns (collectively, “Released Parties”) from any and all claims, charges, complaints, liens,\ndemands, causes of action, obligations, damages and liabilities, known or unknown, suspected or unsuspected, that Employee had, now has, or may\nhereafter claim to have against the Released Parties, arising out of or relating in any way to Employee’s hiring by, employment with, or separation\nfrom the Company or otherwise relating to any of the Released Parties from the beginning of time through the Effective Date. This release\nspecifically extends to, without limitation, claims or causes of action for wrongful termination, impairment of ability to compete in the open labor\nmarket, breach of an express or implied contract, breach of the covenant of good faith and fair dealing, breach of fiduciary duty, fraud,\nmisrepresentation, defamation, slander, infliction of emotional distress, discrimination, harassment, retaliation, disability, loss of future earnings, and\nclaims under the California Constitution, the United States Constitution, and applicable state and federal fair employment laws, federal equal\nemployment opportunity laws, and federal and state labor statutes and regulations, including, but not limited to, the Civil Rights Act of 1964, as\namended, the Fair Labor Standards Act, as amended, the Worker Retraining and Notification Act of 1988,\n2\nas amended, the Americans With Disabilities Act of 1990, as amended, the Rehabilitation Act of 1973, as amended, the Employee Retirement\nIncome Security Act of 1974, as amended, the Age Discrimination in Employment Act, as amended, and the California Fair Employment and\nHousing Act, as amended. However, nothing in this Agreement shall be construed as a release of the Company’s obligations under this Agreement.\nFurthermore, nothing in this Agreement shall affect the U.S. Equal Employment Opportunity Commission’s (“EEOC”) rights and responsibilities to\nenforce the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act of 1967, as amended, or any other applicable law, nor\nshall anything in this Agreement be construed as a basis for interfering with Employee’s protected right to file a charge with, or participate in an\ninvestigation or proceeding conducted by, the EEOC; or any other state, federal or local government entity; provided, however, if the EEOC or any\nother state, federal or local government entity commences an investigation on Employee’s behalf, Employee specifically waives and releases her\nright, if any, to recover any monetary or other benefits of any sort whatsoever arising from any such investigation, nor will she seek reinstatement to\nher former position with the Company.\nEmployee expressly waives all rights afforded by Section 1542 of the Civil Code of the State of California (“Section 1542”) with respect\nto Released Parties. Section 1542 states as follows:\nA GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT\nTO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE\nMATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.\nNotwithstanding the provisions of Section 1542, and for the purpose of implementing a full and complete release, Employee understands and agrees\nthat this Agreement is intended to include all claims, if any, which Employee may have and which Employee does not now know or suspect to exist\nin Employee’s favor against the Released Parties and that this Agreement extinguishes those claims.\n4. Review and Revocation Period.\na) Employee acknowledges that the Company has advised her that she may consult with an attorney of her choosing prior to\nsigning this Agreement and that she has no less than twenty-one (21) days during which to consider the provisions of this Agreement, although she\nmay sign and return it sooner;\nb) Employee has carefully read (or has had this Agreement read to her) and fully understands all of the provisions of this\nAgreement, which is written in a manner that she does understand;\n3\nc) Employee is, through this Agreement, releasing the Company from any and all claims she may have against the Company\narising before the execution of this Agreement;\nd) Employee knowingly and voluntarily agrees to all of the terms in this Agreement;\ne) Employee knowingly and voluntarily intends to be legally bound by this Agreement;\nf) Employee was advised and hereby is advised in writing to consider the terms of this Agreement and consult with an attorney of\nher choosing prior to signing this Agreement;\ng) Employee understands that rights or claims under the Age Discrimination in Employment Act of 1967 (29 U.S .C. §§ 621-634)\nthat may arise after the date this Agreement is signed are not waived;\nh) Employee understands that she has a period of seven (7) calendar days after the date that she signs this Agreement to revoke\nher acceptance of the terms of this Agreement by delivering a written notification in person, by messenger or by facsimile addressed to the Company\nat its offices in San Francisco, California (Attention: David Schellhase, General Counsel). Employee acknowledges and agrees that, in the event that\nEmployee revokes this Agreement, she will not be entitled to receive any of the benefits under this Agreement including, but not limited to, receipt\nof the Severance Payment.\n5. Confidentiality of Proprietary Information. Employee understands that, by virtue of Employee’s employment with the Company,\nEmployee has acquired or been exposed to Proprietary Information of the Company. “Proprietary Information” includes all ideas, information and\nmaterials, tangible or intangible, and know-how not generally known to the public, relating in any manner to the business of the Company, its\nproducts and services (including all trade secrets), its personnel (including its officers, directors, employees, and contractors), its clients, vendors and\nsuppliers and all others with whom it does business that Employee learned or acquired during Employee’s employment with the Company. Upon\nEmployee’s resignation on the Effective Date and thereafter, (a) Employee shall not use Proprietary Information, or disclose Proprietary Information\nto anyone, for any purpose, unless expressly requested to do so in writing by an authorized officer of the Company, (b) Employee shall not retain or\ntake with Employee any Proprietary Information in a Tangible Form (defined below), and (c) Employee shall immediately deliver to the Company\nany Proprietary Information in a Tangible Form that Employee may then or thereafter hold or control, as well as all other property, equipment,\ndocuments or things that Employee was issued or otherwise received or obtained during Employee’s employment with the Company. “Tangible\nForm” includes ideas, information or materials in written or graphic form, on a computer disc (including computer hard drives, floppy discs, network\nservers and compact discs) or other medium, or otherwise stored in or available through electronic, magnetic, videotape or other form.\n4\n6. Cooperation. Employee agrees, upon request by the Company, to consult with and provide assistance to the Company or its subsidiary\ncorporations and their affiliates and their counsel in the investigation, defense, institution, and/or maintenance of a criminal, civil, and/or\nadministrative action, proceeding, investigation or audit by or against the Company or its subsidiary corporations and their affiliates arising out of or\nrelating to matters in which Employee was involved or of which she had or acquired knowledge during her employment by the Company, its\naffiliates, and their predecessors, successors or assigns, or may become involved or acquire knowledge in her performance of duties including,\nwithout limitation, attendance as a witness at depositions, trials or other similar proceedings. The Company agrees that the assistance required of\nEmployee under this Section 6 will be reasonable both in nature and in the amount of time to be devoted by Employee.\n7. No Disparagement. The Parties agree to make no public or private statements that are disparaging of Employee, the Company or any\nof the Released Parties.\n8. Binding Effect. This Agreement shall be binding upon the Parties and their respective heirs, administrators, representatives, executors,\nsuccessors and assigns, and shall inure to the benefit of the parties and their respective heirs, administrators, representatives, executors, successors\nand assigns.\n9. Governing Law. This Agreement shall be governed by and construed and enforced pursuant to the laws of the State of California\napplicable to contracts made and entirely to be performed therein.\n10. Entire Agreement; Modification. This Agreement constitutes the entire understanding among the Parties and may not be modified without\nthe express written consent of the Parties. This Agreement supercedes all prior written and/or oral and all contemporaneous oral agreements,\nunderstandings and negotiations regarding the subject matter hereof. Notwithstanding the foregoing sentence, Employee agrees to continue to be\nbound by the terms and conditions of the Employee Inventions and Proprietary Rights Assignment Agreement executed by the parties dated as of\nFebruary 27, 2004.\n11. Binding Arbitration of Disputes. Except as necessary to specifically enforce or enjoin the breach of any of the terms of this Agreement (as\na provisional remedy in aid of arbitration) and except as provided by applicable law, the Parties agree that any dispute that may arise in connection\nwith, arising out of or relating to this Agreement, or any dispute that relates in any way, in whole or in part, to Employee’s hiring by, employment\nwith or separation from the Company, or any other dispute by and between the Parties, including the Released Parties, shall be submitted to binding\narbitration pursuant to the employment dispute resolution rules and procedures of the American Arbitration Association or such other rules and\nprocedures to which the Parties may otherwise agree. This arbitration obligation extends to any and all claims that may arise by and between the\nParties, including the Released Parties, and expressly extends to, without limitation, claims or causes of action for wrongful termination, impairment\nof ability to compete in the open labor market, breach of express or implied contract, breach of the covenant of good faith and fair dealing, breach of\nfiduciary duty, fraud, misrepresentation, defamation, slander, infliction of emotional distress, discrimination, harassment, disability, loss of future\n5\nearnings, and claims under the California Constitution, the United States Constitution, and applicable state and federal fair employment laws, federal\nequal employment opportunity laws, and federal and state labor statutes and regulations, including, but not limited to, the Civil Rights Act of 1964,\nas amended, the Fair Labor Standards Act, as amended, the Worker Retraining and Notification Act of 1988, as amended, the Americans With\nDisabilities Act of 1990, as amended, the Rehabilitation Act of 1973, as amended, the Employee Retirement Income Security Act of 1974, as\namended, the Age Discrimination in Employment Act, as amended, and the California Fair Employment and Housing Act, as amended. Reasonable\ndiscovery shall be permitted in any arbitration and the arbitrator shall issue a written statement of decision that shall articulate the factual and legal\ngrounds for the decision and award. It is agreed that the arbitration fees and costs shall be paid by the Employer, unless otherwise permitted by law,\nin which case such fees and costs shall be evenly shared. The Employee shall pay for her own attorney fees unless reimbursement is otherwise\ndirected by the Arbitrator as part of a remedy authorized by statute.\n12. Voluntary Agreement; No Other Inducement. By signing this Agreement, Employee acknowledges and agrees that Employee enters into\nthis Agreement knowingly and voluntarily, has had sufficient opportunity to consult with legal counsel of Employee’s choice (and she in fact has\nconsulted with counsel in connection with the negotiation of and signing of this Agreement), and does not rely, and has not relied, on any fact,\nrepresentation, statement or assumption other than as specifically set forth in this Agreement.\nIN WITNESS WHEREOF, the Parties have signed this Agreement as of the dates set forth below.\nSALESFORCE.COM, INC.\n/s/ Kenneth I. Juster\nBy: Kenneth I. Juster\nIts: Executive Vice President, Legal Affairs and Corporate\nDevelopment\nDated: May 17, 2005\nEMPLOYEE\n/s/ Patricia Sueltz\nPatricia Sueltz\nDated: May 17, 2005\n6 EX-99.1 2 dex991.htm SEVERANCE AND CONFIDENTIALITY AGREEMENT\nEXHIBIT 99.1\nSEVERANCE AND CONFIDENTIALITY AGREEMENT\nAND GENERAIL AND SPECIAL RELEASE\nThis Severance and Confidentiality Agreement and General and Special Release (the “Agreement”) is entered into as of this 17th day of\nMay, 2005, by and between Patricia Sueltz (the “Employee”), on the one hand, and salesforce.com, inc. (together with its subsidiary and affiliated\ncorporations and entities, the “Company”), on the other hand (collectively, the “Parties”).\nWHEREAS, Employee is employed by the Company in San Francisco, California at its headquarters location;\nWHEREAS, the Company and Employee mutually agree to resolve all outstanding differences and to terminate Employee’s\nemployment relationship with the Company in an orderly manner. In addition, the Company wishes to continue to safeguard its proprietary and\nconfidential information;\nTHEREFORE, in consideration of the promises and mutual covenants contained herein, and for other good and valuable consideration,\nthe receipt and sufficiency of which are expressly acknowledged, the Parties agree as follows:\nAGREEMENT\n1. Employee’s Resignation. Pursuant to this Agreement, Employee will voluntarily resign from her position with the Company as of May\n31, 2005 (the “Effective Date”).\n2. Severance Payment. In consideration for Employee’s (a) resignation, (b) release of any and all claims she may have against the\nCompany, if any, and (c) adherence to each of the terms and conditions of this Agreement, including, without limitation, Employee’s obligations\nunder Section 3, and provided that Employee has signed this Agreement and has not later revoked it, the Parties agree as follows:\na) Severance Payment. Within ten (10) days after the later to occur of (i) the Effective Date, or (ii) the date on which Employee\nhas signed this Agreement and returned it to the Company, and provided that Employee has not revoked this Agreement pursuant to Section 4,\nbelow, the Company shall make a lump sum payment to Employee in the amount of Six Hundred and Fifty Thousand Dollars ($650,000.00) (the\n“Severance Payment”), less applicable taxes, withholdings, and deductions required by law.\nb) No Other Compensation or Benefits. Employee acknowledges and agrees that she has been paid by the Company all salary,\nbenefits or other compensation (including any accrued but unpaid vacation pay) to which Employee is entitled. Moreover, except as provided in this\nAgreement, Employee shall not be entitled to receive any other\ncompensation or benefits of any sort from the Company, its affiliates, or their officers, directors, employees, agents, insurance companies, attorneys,\nshareholders, or subsidiaries for, without limitation, salary, vacation, bonuses, stock, stock options, health care continuation coverage or any other\ncompensation or benefits.\nc) No Claims or Lawsuits. Employee represents that she has not filed or asserted any complaints, claims, or actions against the\nReleased Parties (defined below) with any state, federal, or local governmental agency or court or arbitrator and that she will not do so at any time\nhereafter, and that if any agency, court, or arbitrator assumes jurisdiction of any complaint, claim, or action against the Released Parties, Employee\nwill direct that agency, court, or arbitrator to withdraw from or dismiss with prejudice the matter;\nd) No Assistance. Employee understands that if this Agreement were not signed, she would have the right to voluntarily assist\nother individuals or entities in bringing claims against the Company. Employee further understands and agrees that she waives such right and she\nshall not aid or assist others in their pursuit of claims against the Company unless (1) Employee is required to provide such assistance pursuant to a\ncourt order, or (2) Employee’s assistance is sought by the EEOC or any other federal, state or local governmental entity.\ne) No Admission. This Agreement and compliance with this Agreement shall not be construed as an admission by the Company\nof any liability whatsoever, or as an admission by the Company of any violation of the rights of Employee or any person, or any violation of any\norder, law, statute, duty, or contract whatsoever against Employee or any person. The Company specifically denies and disclaims any liability to\nEmployee or any other person for any alleged violation of the rights of Employee or any person, or for any alleged violation of any order, law,\nstatute, duty, or contract on the part of the Company, its employees or agents or affiliated entities or their employees or agents.\n3. General and Special Release. As a material inducement for the Company to enter into this Agreement, Employee hereby forever\nreleases and discharges the Company, its subsidiary and affiliated corporations and entities, and their respective past and present officers, directors,\nmanagers, employees, agents, attorneys, successors and assigns (collectively, “Released Parties”) from any and all claims, charges, complaints, liens,\ndemands, causes of action, obligations, damages and liabilities, known or unknown, suspected or unsuspected, that Employee had, now has, or may\nhereafter claim to have against the Released Parties, arising out of or relating in any way to Employee’s hiring by, employment with, or separation\nfrom the Company or otherwise relating to any of the Released Parties from the beginning of time through the Effective Date. This release\nspecifically extends to, without limitation, claims or causes of action for wrongful termination, impairment of ability to compete in the open labor\nmarket, breach of an express or implied contract, breach of the covenant of good faith and fair dealing, breach of fiduciary duty, fraud,\nmisrepresentation, defamation, slander, infliction of emotional distress, discrimination, harassment, retaliation, disability, loss of future earnings, and\nclaims under the California Constitution, the United States Constitution, and applicable state and federal fair employment laws, federal equal\nemployment opportunity laws, and federal and state labor statutes and regulations, including, but not limited to, the Civil Rights Act of 1964, as\namended, the Fair Labor Standards Act, as amended, the Worker Retraining and Notification Act of 1988,\n2\nas amended, the Americans With Disabilities Act of 1990, as amended, the Rehabilitation Act of 1973, as amended, the Employee Retirement\nIncome Security Act of 1974, as amended, the Age Discrimination in Employment Act, as amended, and the California Fair Employment and\nHousing Act, as amended. However, nothing in this Agreement shall be construed as a release of the Company’s obligations under this Agreement.\nFurthermore, nothing in this Agreement shall affect the U.S. Equal Employment Opportunity Commission’s (“EEOC”) rights and responsibilities to\nenforce the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act of 1967, as amended, or any other applicable law, nor\nshall anything in this Agreement be construed as a basis for interfering with Employee’s protected right to file a charge with, or participate in an\ninvestigation or proceeding conducted by, the EEOC; or any other state, federal or local government entity; provided, however, if the EEOC or any\nother state, federal or local government entity commences an investigation on Employee’s behalf, Employee specifically waives and releases her\nright, if any, to recover any monetary or other benefits of any sort whatsoever arising from any such investigation, nor will she seek reinstatement to\nher former position with the Company.\nEmployee expressly waives all rights afforded by Section 1542 of the Civil Code of the State of California (“Section 1542”) with respect\nto Released Parties. Section 1542 states as follows:\nA GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT\nTO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE\nMATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.\nNotwithstanding the provisions of Section 1542, and for the purpose of implementing a full and complete release, Employee understands and agrees\nthat this Agreement is intended to include all claims, if any, which Employee may have and which Employee does not now know or suspect to exist\nin Employee’s favor against the Released Parties and that this Agreement extinguishes those claims.\n4. Review and Revocation Period.\na) Employee acknowledges that the Company has advised her that she may consult with an attorney of her choosing prior to\nsigning this Agreement and that she has no less than twenty-one (21) days during which to consider the provisions of this Agreement, although she\nmay sign and return it sooner;\nb) Employee has carefully read (or has had this Agreement read to her) and fully understands all of the provisions of this\nAgreement, which is written in a manner that she does understand;\nc) Employee is, through this Agreement, releasing the Company from any and all claims she may have against the Company\narising before the execution of this Agreement;\nd) Employee knowingly and voluntarily agrees to all of the terms in this Agreement;\ne) Employee knowingly and voluntarily intends to be legally bound by this Agreement;\nf) Employee was advised and hereby is advised in writing to consider the terms of this Agreement and consult with an attorney of\nher choosing prior to signing this Agreement;\ng) Employee understands that rights or claims under the Age Discrimination in Employment Act of 1967 (29 U.S.C. §§ 621-634)\nthat may arise after the date this Agreement is signed are not waived;\nh) Employee understands that she has a period of seven (7) calendar days after the date that she signs this Agreement to revoke\nher acceptance of the terms of this Agreement by delivering a written notification in person, by messenger or by facsimile addressed to the Company\nat its offices in San Francisco, California (Attention: David Schellhase, General Counsel). Employee acknowledges and agrees that, in the event that\nEmployee revokes this Agreement, she will not be entitled to receive any of the benefits under this Agreement including, but not limited to, receipt\nof the Severance Payment.\n5. Confidentiality of Proprietary Information. Employee understands that, by virtue of Employee’s employment with the Company,\nEmployee has acquired or been exposed to Proprietary Information of the Company. “Proprietary Information” includes all ideas, information and\nmaterials, tangible or intangible, and know-how not generally known to the public, relating in any manner to the business of the Company, its\nproducts and services (including all trade secrets), its personnel (including its officers, directors, employees, and contractors), its clients, vendors and\nsuppliers and all others with whom it does business that Employee learned or acquired during Employee’s employment with the Company. Upon\nEmployee’s resignation on the Effective Date and thereafter, (a) Employee shall not use Proprietary Information, or disclose Proprietary Information\nto anyone, for any purpose, unless expressly requested to do so in writing by an authorized officer of the Company, (b) Employee shall not retain or\ntake with Employee any Proprietary Information in a Tangible Form (defined below), and (c) Employee shall immediately deliver to the Company\nany Proprietary Information in a Tangible Form that Employee may then or thereafter hold or control, as well as all other property, equipment,\ndocuments or things that Employee was issued or otherwise received or obtained during Employee’s employment with the Company. “Tangible\nForm” includes ideas, information or materials in written or graphic form, on a computer disc (including computer hard drives, floppy discs, network\nservers and compact discs) or other medium, or otherwise stored in or available through electronic, magnetic, videotape or other form.\n4\n6. Cooperation. Employee agrees, upon request by the Company, to consult with and provide assistance to the Company or its subsidiary\ncorporations and their affiliates and their counsel in the investigation, defense, institution, and/or maintenance of a criminal, civil, and/or\nadministrative action, proceeding, investigation or audit by or against the Company or its subsidiary corporations and their affiliates arising out of or\nrelating to matters in which Employee was involved or of which she had or acquired knowledge during her employment by the Company, its\naffiliates, and their predecessors, successors or assigns, or may become involved or acquire knowledge in her performance of duties including,\nwithout limitation, attendance as a witness at depositions, trials or other similar proceedings. The Company agrees that the assistance required of\nEmployee under this Section 6 will be reasonable both in nature and in the amount of time to be devoted by Employee.\n7. No Disparagement. The Parties agree to make no public or private statements that are disparaging of Employee, the Company or any\nof the Released Parties.\n8. Binding Effect. This Agreement shall be binding upon the Parties and their respective heirs, administrators, representatives, executors,\nsuccessors and assigns, and shall inure to the benefit of the parties and their respective heirs, administrators, representatives, executors, successors\nand assigns.\n9. Governing Law. This Agreement shall be governed by and construed and enforced pursuant to the laws of the State of California\napplicable to contracts made and entirely to be performed therein.\n10. Entire Agreement; Modification. This Agreement constitutes the entire understanding among the Parties and may not be modified without\nthe express written consent of the Parties. This Agreement supercedes all prior written and/or oral and all contemporaneous oral agreements,\nunderstandings and negotiations regarding the subject matter hereof. Notwithstanding the foregoing sentence, Employee agrees to continue to be\nbound by the terms and conditions of the Employee Inventions and Proprietary Rights Assignment Agreement executed by the parties dated as of\nFebruary 27, 2004.\n11. Binding Arbitration of Disputes. Except as necessary to specifically enforce or enjoin the breach of any of the terms of this Agreement (as\na provisional remedy in aid of arbitration) and except as provided by applicable law, the Parties agree that any dispute that may arise in connection\nwith, arising out of or relating to this Agreement, or any dispute that relates in any way, in whole or in part, to Employee’s hiring by, employment\nwith or separation from the Company, or any other dispute by and between the Parties, including the Released Parties, shall be submitted to binding\narbitration pursuant to the employment dispute resolution rules and procedures of the American Arbitration Association or such other rules and\nprocedures to which the Parties may otherwise agree. This arbitration obligation extends to any and all claims that may arise by and between the\nParties, including the Released Parties, and expressly extends to, without limitation, claims or causes of action for wrongful termination, impairment\nof ability to compete in the open labor market, breach of express or implied contract, breach of the covenant of good faith and fair dealing, breach of\nfiduciary duty, fraud, misrepresentation, defamation, slander, infliction of emotional distress, discrimination, harassment, disability, loss of future\n5\nearnings, and claims under the California Constitution, the United States Constitution, and applicable state and federal fair employment laws, federal\nequal employment opportunity laws, and federal and state labor statutes and regulations, including, but not limited to, the Civil Rights Act of 1964,\nas amended, the Fair Labor Standards Act, as amended, the Worker Retraining and Notification Act of 1988, as amended, the Americans With\nDisabilities Act of 1990, as amended, the Rehabilitation Act of 1973, as amended, the Employee Retirement Income Security Act of 1974, as\namended, the Age Discrimination in Employment Act, as amended, and the California Fair Employment and Housing Act, as amended. Reasonable\ndiscovery shall be permitted in any arbitration and the arbitrator shall issue a written statement of decision that shall articulate the factual and legal\ngrounds for the decision and award. It is agreed that the arbitration fees and costs shall be paid by the Employer, unless otherwise permitted by law,\nin which case such fees and costs shall be evenly shared. The Employee shall pay for her own attorney fees unless reimbursement is otherwise\ndirected by the Arbitrator as part of a remedy authorized by statute.\n12. Voluntary Agreement; No Other Inducement. By signing this Agreement, Employee acknowledges and agrees that Employee enters into\nthis Agreement knowingly and voluntarily, has had sufficient opportunity to consult with legal counsel of Employee’s choice (and she in fact has\nconsulted with counsel in connection with the negotiation of and signing of this Agreement), and does not rely, and has not relied, on any fact,\nrepresentation, statement or assumption other than as specifically set forth in this Agreement.\n \nIN WITNESS WHEREOF, the Parties have signed this Agreement as of the dates set forth below.\nSALESFORCE.COM, INC.\n/s/ Kenneth I. Juster\nBy: Kenneth I. Juster\nIts: Executive Vice President, Legal Affairs and Corporate\nDevelopment\nDated: May 17, 2005\nEMPLOYEE\n/s/ Patricia Sueltz\nPatricia Sueltz\nDated: May 17, 2005 EX-99.1 2 dex991.htm SEVERANCE AND CONFIDENTIALITY AGREEMENT\nEXHIBIT 99.1\nSEVERANCE AND CONFIDENTIALITY AGREEMENT\nAND GENERAL AND SPECIAL RELEASE\nThis Severance and Confidentiality Agreement and General and Special Release (the "Agreement") is entered into as of this 17th day of\nMay, 2005, by and between Patricia Sueltz (the "Employee"), on the one hand, and salesforce.com, inc. (together with its subsidiary and affiliated\ncorporations and entities, the "Company"), on the other hand (collectively, the "Parties").\nWHEREAS, Employee is employed by the Company in San Francisco, California at its headquarters location;\nWHEREAS, the Company and Employee mutually agree to resolve all outstanding differences and to terminate Employee's\nemployment relationship with the Company in an orderly manner. In addition, the Company wishes to continue to safeguard its proprietary and\nconfidential information;\nTHEREFORE, in consideration of the promises and mutual covenants contained herein, and for other good and valuable consideration,\nthe receipt and sufficiency of which are expressly acknowledged, the Parties agree as follows:\nAGREEMENT\n1. Employee's Resignation. Pursuant to this Agreement, Employee will voluntarily resign from her position with the Company as of May\n31, 2005 (the "Effective Date").\n2. Severance Payment. In consideration for Employee's (a) resignation, (b) release of any and all claims she may have against the\nCompany, if any, and (c) adherence to each of the terms and conditions of this Agreement, including, without limitation, Employee's obligations\nunder Section 3, and provided that Employee has signed this Agreement and has not later revoked it, the Parties agree as follows:\na) Severance Payment. Within ten (10) days after the later to occur of (i) the Effective Date, or (ii) the date on which Employee\nhas signed this Agreement and returned it to the Company, and provided that Employee has not revoked this Agreement pursuant to Section 4,\nbelow, the Company shall make a lump sum payment to Employee in the amount of Six Hundred and Fifty Thousand Dollars ($650,000.00) (the\n"Severance Payment"), less applicable taxes, withholdings, and deductions required by law.\nb) No Other Compensation or Benefits. Employee acknowledges and agrees that she has been paid by the Company all salary,\nbenefits or other compensation (including any accrued but unpaid vacation pay) to which Employee is entitled. Moreover, except as provided in this\nAgreement, Employee shall not be entitled to receive any other\ncompensation or benefits of any sort from the Company, its affiliates, or their officers, directors, employees, agents, insurance companies, attorneys,\nshareholders, or subsidiaries for, without limitation, salary, vacation, bonuses, stock, stock options, health care continuation coverage or any other\ncompensation or benefits.\nc) No Claims or Lawsuits. Employee represents that she has not filed or asserted any complaints, claims, or actions against the\nReleased Parties (defined below) with any state, federal, or local governmental agency or court or arbitrator and that she will not do so at any time\nhereafter, and that if any agency, court, or arbitrator assumes jurisdiction of any complaint, claim, or action against the Released Parties, Employee\nwill direct that agency, court, or arbitrator to withdraw from or dismiss with prejudice the matter;\nd) No Assistance. Employee understands that if this Agreement were not signed, she would have the right to voluntarily assist\nother individuals or entities in bringing claims against the Company. Employee further understands and agrees that she waives such right and she\nshall not aid or assist others in their pursuit of claims against the Company unless (1) Employee is required to provide such assistance pursuant to a\ncourt order, or (2) Employee's assistance is sought by the EEOC or any other federal, state or local governmental entity.\ne) No Admission. This Agreement and compliance with this Agreement shall not be construed as an admission by the Company\nof any liability whatsoever, or as an admission by the Company of any violation of the rights of Employee or any person, or any violation of any\norder, law, statute, duty, or contract whatsoever against Employee or any person. The Company specifically denies and disclaims any liability to\nEmployee or any other person for any alleged violation of the rights of Employee or any person, or for any alleged violation of any order, law,\nstatute, duty, or contract on the part of the Company, its employees or agents or affiliated entities or their employees or agents.\n3. General and Special Release. As a material inducement for the Company to enter into this Agreement, Employee hereby forever\nreleases and discharges the Company, its subsidiary and affiliated corporations and entities, and their respective past and present officers, directors,\nmanagers, employees, agents, attorneys, successors and assigns (collectively, "Released Parties") from any and all claims, charges, complaints, liens,\ndemands, causes of action, obligations, damages and liabilities, known or unknown, suspected or unsuspected, that Employee had,\nnow\nhas,\nor\nmay\nhereafter claim to have against the Released Parties, arising out of or relating in any way to Employee's hiring by, employment with, or separation\nfrom the Company or otherwise relating to any of the Released Parties from the beginning of time through the Effective Date. This release\nspecifically extends to, without limitation, claims or causes of action for wrongful termination, impairment of ability to compete in the open labor\nmarket, breach of an express or implied contract, breach of the covenant of good faith and fair dealing, breach of fiduciary duty, fraud,\nmisrepresentation, defamation, slander, infliction of emotional distress, discrimination, harassment, retaliation, disability, loss of future earnings, and\nclaims under the California Constitution, the United States Constitution, and applicable state and federal fair employment laws, federal equal\nemployment opportunity laws, and federal and state labor statutes and regulations, including, but not limited to, the Civil Rights Act of 1964, as\namended, the Fair Labor Standards Act, as amended, the Worker Retraining and Notification Act of 1988,\n2\nas amended, the Americans With Disabilities Act of 1990, as amended, the Rehabilitation Act of 1973, as amended, the Employee Retirement\nIncome Security Act of 1974, as amended, the Age Discrimination in Employment Act, as amended, and the California Fair Employment and\nHousing Act, as amended. However, nothing in this Agreement shall be construed as a release of the Company's obligations under this Agreement.\nFurthermore, nothing in this Agreement shall affect the U.S. Equal Employment Opportunity Commission's ("EEOC") rights and responsibilities to\nenforce the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act of 1967, as amended, or any other applicable law, nor\nshall anything in this Agreement be construed as a basis for interfering with Employee's protected right to file a charge with, or participate in an\ninvestigation or proceeding conducted by, the EEOC; or any other state, federal or local government entity; provided, however, if the EEOC or any\nother state, federal or local government entity commences an investigation on Employee's behalf, Employee specifically waives and releases her\nright, if any, to recover any monetary or other benefits of any sort whatsoever arising from any such investigation, nor will she seek reinstatement to\nher former position with the Company.\nEmployee expressly waives all rights afforded by Section 1542 of the Civil Code of the State of California ("Section 1542") with respect\nto Released Parties. Section 1542 states as follows:\nA GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT\nTO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE\nMATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.\nNotwithstanding the provisions of Section 1542, and for the purpose of implementing a full and complete release, Employee understands and agrees\nthat this Agreement is intended to include all claims, if any, which Employee may have and which Employee does not now know or suspect to exist\nin Employee's favor against the Released Parties and that this Agreement extinguishes those claims.\n4. Review and Revocation Period.\na) Employee acknowledges that the Company has advised her that she may consult with an attorney of her choosing prior\nto\nsigning this Agreement and that she has no less than twenty-one (21) days during which to consider the provisions of this Agreement, although she\nmay sign and return it sooner;\nb) Employee has carefully read (or has had this Agreement read to her) and fully understands all of the provisions of this\nAgreement, which is written in a manner that she does understand;\n3\nc) Employee is, through this Agreement, releasing the Company from any and all claims she may have against the Company\narising before the execution of this Agreement;\nd) Employee knowingly and voluntarily agrees to all of the terms in this Agreement;\ne) Employee knowingly and voluntarily intends to be legally bound by this Agreement;\nf) Employee was advised and hereby is advised in writing to consider the terms of this Agreement and consult with an attorney of\nher choosing prior to signing this Agreement;\ng) Employee understands that rights or claims under the Age Discrimination in Employment Act of 1967 (29 U.S.C. 88 621-634)\nthat may arise after the date this Agreement is signed are not waived;\nh) Employee understands that she has a period of seven (7) calendar days after the date that she signs this Agreement to revoke\nher acceptance of the terms of this Agreement by delivering a written notification in person, by messenger or by facsimile addressed to the Company\nat\nits\noffices\nin\nSan\nFrancisco,\nCalifornia\n(Attention:\nDavid\nSchellhase,\nGeneral\nCounsel)\nEmployee\nacknowledges\nand\nagrees\nthat,\nin\nthe\nevent\nthat\nEmployee revokes this Agreement, she will not be entitled to receive any of the benefits under this Agreement including, but not limited to, receipt\nof the Severance Payment.\n5. Confidentiality. of Proprietary Information. Employee understands that, by virtue of Employee's employment with the Company,\nEmployee has acquired or been exposed to Proprietary Information of the Company. "Proprietary Information" includes all ideas, information and\nmaterials, tangible or intangible, and know-how not generally known to the public, relating in any manner to the business of the Company, its\nproducts and services (including all trade secrets), its personnel (including its officers, directors, employees, and contractors), its clients, vendors and\nsuppliers and all others with whom it does business that Employee learned or acquired during Employee's employment with the Company. Upon\nEmployee's resignation on the Effective Date and thereafter, (a) Employee shall not use Proprietary Information, or disclose Proprietary Information\nto anyone, for any purpose, unless expressly requested to do so in writing by an authorized officer of the Company, (b) Employee shall not retain or\ntake with Employee any Proprietary Information in a Tangible Form (defined below), and (c) Employee shall immediately deliver to the Company\nany Proprietary Information in a Tangible Form that Employee may then or thereafter hold or control, as well as all other property, equipment,\ndocuments or things that Employee was issued or otherwise received or obtained during Employee's employment with the Company. "Tangible\nForm" includes ideas, information or materials in written or graphic form, on a computer disc (including computer hard drives, floppy discs, network\nservers and compact discs) or other medium, or otherwise stored in or available through electronic, magnetic, videotape or other form.\n4\n6. Cooperation. Employee agrees, upon request by the Company, to consult with and provide assistance to the Company or its subsidiary\ncorporations and their affiliates and their counsel in the investigation, defense, institution, and/or maintenance of a criminal, civil, and/or\nadministrative action, proceeding, investigation or audit by or against the Company or its subsidiary corporations and their affiliates arising out of or\nrelating to matters in which Employee was involved or of which she had or acquired knowledge during her employment by the Company, its\naffiliates, and their predecessors, successors or assigns, or may become involved or acquire knowledge in her performance of duties including,\nwithout limitation, attendance as a witness at depositions, trials or other similar proceedings. The Company agrees that the assistance required of\nEmployee under this Section 6 will be reasonable both in nature and in the amount of time to be devoted by Employee.\n7. No Disparagement. The Parties agree to make no public or private statements that are disparaging of Employee, the Company or any\nof the Released Parties.\n8. Binding Effect. This Agreement shall be binding upon the Parties and their respective heirs, administrators, representatives, executors,\nsuccessors and assigns, and shall inure to the benefit of the parties and their respective heirs, administrators, representatives, executors, successors\nand assigns.\n9. Governing Law. This Agreement shall be governed by and construed and enforced pursuant to the laws of the State of California\napplicable to contracts made and entirely to be performed therein.\n10. Entire Agreement; Modification. This Agreement constitutes the entire understanding among the Parties and may not be modified without\nthe express written consent of the Parties. This Agreement supercedes all prior written and/or oral and all contemporaneous oral agreements,\nunderstandings and negotiations regarding the subject matter hereof. Notwithstanding the foregoing sentence, Employee agrees to continue to be\nbound by the terms and conditions of the Employee Inventions and Proprietary Rights Assignment Agreement executed by the parties dated as\nof\nFebruary 27, 2004.\n11. Binding Arbitration of Disputes. Except as necessary to specifically enforce or enjoin the breach of any of the terms of this Agreement (as\na provisional remedy in aid of arbitration) and except as provided by applicable law, the Parties agree that any dispute that may arise in connection\nwith, arising out of or relating to this Agreement, or any dispute that relates in any way, in whole or in part, to Employee's hiring by, employment\nwith or separation from the Company, or any other dispute by and between the Parties, including the Released Parties, shall be submitted to binding\narbitration pursuant to the employment dispute resolution rules and procedures of the American Arbitration Association or such other rules and\nprocedures to which the Parties may otherwise agree. This arbitration obligation extends to any and all claims that may arise by and between the\nParties, including the Released Parties, and expressly extends to, without limitation, claims or causes of action for wrongful termination, impairment\nof ability to compete in the open labor market, breach of express or implied contract, breach of the covenant of good faith and fair dealing, breach of\nfiduciary duty, fraud, misrepresentation, defamation, slander, infliction of emotional distress, discrimination, harassment, disability, loss of future\n5\nearnings, and claims under the California Constitution, the United States Constitution, and applicable state and federal fair employment laws, federal\nequal employment opportunity laws, and federal and state labor statutes and regulations, including, but not limited to, the Civil Rights Act of 1964,\nas amended, the Fair Labor Standards Act, as amended, the Worker Retraining and Notification Act of 1988, as amended, the Americans With\nDisabilities Act of 1990, as amended, the Rehabilitation Act of 1973, as amended, the Employee Retirement Income Security Act of 1974, as\namended, the Age Discrimination in Employment Act, as amended, and the California Fair Employment and Housing Act, as amended. Reasonable\ndiscovery shall be permitted in any arbitration and the arbitrator shall issue a written statement of decision that shall articulate the factual and legal\ngrounds for the decision and award. It is agreed that the arbitration fees and costs shall be paid by the Employer, unless otherwise permitted by law,\nin which case such fees and costs shall be evenly shared. The Employee shall pay for her own attorney fees unless reimbursement is otherwise\ndirected by the Arbitrator as part of a remedy authorized by statute.\n12. Voluntary. Agreement; No Other Inducement. By signing this Agreement, Employee acknowledges and agrees that Employee enters into\nthis Agreement knowingly and voluntarily, has had sufficient opportunity to consult with legal counsel of Employee's choice (and she in fact has\nconsulted with counsel in connection with the negotiation of and signing of this Agreement), and does not rely, and has not relied, on any fact,\nrepresentation, statement or assumption other than as specifically set forth in this Agreement.\nIN WITNESS WHEREOF, the Parties have signed this Agreement as of the dates set forth below.\nSALESFORCE.COM, INC.\n/s/ Kenneth I. Juster\nBy: Kenneth I. Juster\nIts: Executive Vice President, Legal Affairs and Corporate\nDevelopment\nDated: May 17, 2005\nEMPLOYEE\n/s/ Patricia Sueltz\nPatricia Sueltz\nDated: May 17, 2005\n6 EX-99.1 2 dex991.htm SEVERANCE AND CONFIDENTIALITY AGREEMENT\nEXHIBIT 99.1\nSEVERANCE AND CONFIDENTIALITY AGREEMENT\nAND GENERAL AND SPECIAL RELEASE\nThis Severance and Confidentiality Agreement and General and Special Release (the “Agreement”) is entered into as of this 17th day of\nMay, 2005, by and between Patricia Sueltz (the “Employee”), on the one hand, and salesforce.com, inc. (together with its subsidiary and affiliated\ncorporations and entities, the “Company”), on the other hand (collectively, the “Parties”).\nWHEREAS, Employee is employed by the Company in San Francisco, California at its headquarters location;\nWHEREAS, the Company and Employee mutually agree to resolve all outstanding differences and to terminate Employee’s\nemployment relationship with the Company in an orderly manner. In addition, the Company wishes to continue to safeguard its proprietary and\nconfidential information;\nTHEREFORE, in consideration of the promises and mutual covenants contained herein, and for other good and valuable consideration,\nthe receipt and sufficiency of which are expressly acknowledged, the Parties agree as follows:\nAGREEMENT\n1. Employee’s Resignation. Pursuant to this Agreement, Employee will voluntarily resign from her position with the Company as of May\n31, 2005 (the “Effective Date”).\n2. Severance Payment. In consideration for Employee’s (a) resignation, (b) release of any and all claims she may have against the\nCompany, if any, and (c) adherence to each of the terms and conditions of this Agreement, including, without limitation, Employee’s obligations\nunder Section 3, and provided that Employee has signed this Agreement and has not later revoked it, the Parties agree as follows:\na) Severance Payment. Within ten (10) days after the later to occur of (i) the Effective Date, or (ii) the date on which Employee\nhas signed this Agreement and returned it to the Company, and provided that Employee has not revoked this Agreement pursuant to Section 4,\nbelow, the Company shall make a lump sum payment to Employee in the amount of Six Hundred and Fifty Thousand Dollars ($650,000.00) (the\n“Severance Payment”), less applicable taxes, withholdings, and deductions required by law.\nb) No Other Compensation or Benefits. Employee acknowledges and agrees that she has been paid by the Company all salary,\nbenefits or other compensation (including any accrued but unpaid vacation pay) to which Employee is entitled. Moreover, except as provided in this\nAgreement, Employee shall not be entitled to receive any other\ncompensation or benefits of any sort from the Company, its affiliates, or their officers, directors, employees, agents, insurance companies, attorneys,\nshareholders, or subsidiaries for, without limitation, salary, vacation, bonuses, stock, stock options, health care continuation coverage or any other\ncompensation or benefits.\nc) No Claims or Lawsuits. Employee represents that she has not filed or asserted any complaints, claims, or actions against the\nReleased Parties (defined below) with any state, federal, or local governmental agency or court or arbitrator and that she will not do so at any time\nhereafter, and that if any agency, court, or arbitrator assumes jurisdiction of any complaint, claim, or action against the Released Parties, Employee\nwill direct that agency, court, or arbitrator to withdraw from or dismiss with prejudice the matter;\nd) No Assistance. Employee understands that if this Agreement were not signed, she would have the right to voluntarily assist\nother individuals or entities in bringing claims against the Company. Employee further understands and agrees that she waives such right and she\nshall not aid or assist others in their pursuit of claims against the Company unless (1) Employee is required to provide such assistance pursuant to a\ncourt order, or (2) Employee’s assistance is sought by the EEOC or any other federal, state or local governmental entity.\ne) No Admission. This Agreement and compliance with this Agreement shall not be construed as an admission by the Company\nof any liability whatsoever, or as an admission by the Company of any violation of the rights of Employee or any person, or any violation of any\norder, law, statute, duty, or contract whatsoever against Employee or any person. The Company specifically denies and disclaims any liability to\nEmployee or any other person for any alleged violation of the rights of Employee or any person, or for any alleged violation of any order, law,\nstatute, duty, or contract on the part of the Company, its employees or agents or affiliated entities or their employees or agents.\n3. General and Special Release. As a material inducement for the Company to enter into this Agreement, Employee hereby forever\nreleases and discharges the Company, its subsidiary and affiliated corporations and entities, and their respective past and present officers, directors,\nmanagers, employees, agents, attorneys, successors and assigns (collectively, “Released Parties”) from any and all claims, charges, complaints, liens,\ndemands, causes of action, obligations, damages and liabilities, known or unknown, suspected or unsuspected, that Employee had, now has, or may\nhereafter claim to have against the Released Parties, arising out of or relating in any way to Employee’s hiring by, employment with, or separation\nfrom the Company or otherwise relating to any of the Released Parties from the beginning of time through the Effective Date. This release\nspecifically extends to, without limitation, claims or causes of action for wrongful termination, impairment of ability to compete in the open labor\nmarket, breach of an express or implied contract, breach of the covenant of good faith and fair dealing, breach of fiduciary duty, fraud,\nmisrepresentation, defamation, slander, infliction of emotional distress, discrimination, harassment, retaliation, disability, loss of future earnings, and\nclaims under the California Constitution, the United States Constitution, and applicable state and federal fair employment laws, federal equal\nemployment opportunity laws, and federal and state labor statutes and regulations, including, but not limited to, the Civil Rights Act of 1964, as\namended, the Fair Labor Standards Act, as amended, the Worker Retraining and Notification Act of 1988,\n2\nas amended, the Americans With Disabilities Act of 1990, as amended, the Rehabilitation Act of 1973, as amended, the Employee Retirement\nIncome Security Act of 1974, as amended, the Age Discrimination in Employment Act, as amended, and the California Fair Employment and\nHousing Act, as amended. However, nothing in this Agreement shall be construed as a release of the Company’s obligations under this Agreement.\nFurthermore, nothing in this Agreement shall affect the U.S. Equal Employment Opportunity Commission’s (“EEOC”) rights and responsibilities to\nenforce the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act of 1967, as amended, or any other applicable law, nor\nshall anything in this Agreement be construed as a basis for interfering with Employee’s protected right to file a charge with, or participate in an\ninvestigation or proceeding conducted by, the EEOC; or any other state, federal or local government entity; provided, however, if the EEOC or any\nother state, federal or local government entity commences an investigation on Employee’s behalf, Employee specifically waives and releases her\nright, if any, to recover any monetary or other benefits of any sort whatsoever arising from any such investigation, nor will she seek reinstatement to\nher former position with the Company.\nEmployee expressly waives all rights afforded by Section 1542 of the Civil Code of the State of California (“Section 1542”) with respect\nto Released Parties. Section 1542 states as follows:\nA GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT\nTO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE\nMATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.\nNotwithstanding the provisions of Section 1542, and for the purpose of implementing a full and complete release, Employee understands and agrees\nthat this Agreement is intended to include all claims, if any, which Employee may have and which Employee does not now know or suspect to exist\nin Employee’s favor against the Released Parties and that this Agreement extinguishes those claims.\n4. Review and Revocation Period.\na) Employee acknowledges that the Company has advised her that she may consult with an attorney of her choosing prior to\nsigning this Agreement and that she has no less than twenty-one (21) days during which to consider the provisions of this Agreement, although she\nmay sign and return it sooner;\nb) Employee has carefully read (or has had this Agreement read to her) and fully understands all of the provisions of this\nAgreement, which is written in a manner that she does understand;\n3\nc) Employee is, through this Agreement, releasing the Company from any and all claims she may have against the Company\narising before the execution of this Agreement;\nd) Employee knowingly and voluntarily agrees to all of the terms in this Agreement;\ne) Employee knowingly and voluntarily intends to be legally bound by this Agreement;\nf) Employee was advised and hereby is advised in writing to consider the terms of this Agreement and consult with an attorney of\nher choosing prior to signing this Agreement;\ng) Employee understands that rights or claims under the Age Discrimination in Employment Act of 1967 (29 U.S .C. §§ 621-634)\nthat may arise after the date this Agreement is signed are not waived;\nh) Employee understands that she has a period of seven (7) calendar days after the date that she signs this Agreement to revoke\nher acceptance of the terms of this Agreement by delivering a written notification in person, by messenger or by facsimile addressed to the Company\nat its offices in San Francisco, California (Attention: David Schellhase, General Counsel). Employee acknowledges and agrees that, in the event that\nEmployee revokes this Agreement, she will not be entitled to receive any of the benefits under this Agreement including, but not limited to, receipt\nof the Severance Payment.\n5. Confidentiality of Proprietary Information. Employee understands that, by virtue of Employee’s employment with the Company,\nEmployee has acquired or been exposed to Proprietary Information of the Company. “Proprietary Information” includes all ideas, information and\nmaterials, tangible or intangible, and know-how not generally known to the public, relating in any manner to the business of the Company, its\nproducts and services (including all trade secrets), its personnel (including its officers, directors, employees, and contractors), its clients, vendors and\nsuppliers and all others with whom it does business that Employee learned or acquired during Employee’s employment with the Company. Upon\nEmployee’s resignation on the Effective Date and thereafter, (a) Employee shall not use Proprietary Information, or disclose Proprietary Information\nto anyone, for any purpose, unless expressly requested to do so in writing by an authorized officer of the Company, (b) Employee shall not retain or\ntake with Employee any Proprietary Information in a Tangible Form (defined below), and (c) Employee shall immediately deliver to the Company\nany Proprietary Information in a Tangible Form that Employee may then or thereafter hold or control, as well as all other property, equipment,\ndocuments or things that Employee was issued or otherwise received or obtained during Employee’s employment with the Company. “Tangible\nForm” includes ideas, information or materials in written or graphic form, on a computer disc (including computer hard drives, floppy discs, network\nservers and compact discs) or other medium, or otherwise stored in or available through electronic, magnetic, videotape or other form.\n4\n6. Cooperation. Employee agrees, upon request by the Company, to consult with and provide assistance to the Company or its subsidiary\ncorporations and their affiliates and their counsel in the investigation, defense, institution, and/or maintenance of a criminal, civil, and/or\nadministrative action, proceeding, investigation or audit by or against the Company or its subsidiary corporations and their affiliates arising out of or\nrelating to matters in which Employee was involved or of which she had or acquired knowledge during her employment by the Company, its\naffiliates, and their predecessors, successors or assigns, or may become involved or acquire knowledge in her performance of duties including,\nwithout limitation, attendance as a witness at depositions, trials or other similar proceedings. The Company agrees that the assistance required of\nEmployee under this Section 6 will be reasonable both in nature and in the amount of time to be devoted by Employee.\n7. No Disparagement. The Parties agree to make no public or private statements that are disparaging of Employee, the Company or any\nof the Released Parties.\n8. Binding Effect. This Agreement shall be binding upon the Parties and their respective heirs, administrators, representatives, executors,\nsuccessors and assigns, and shall inure to the benefit of the parties and their respective heirs, administrators, representatives, executors, successors\nand assigns.\n9. Governing Law. This Agreement shall be governed by and construed and enforced pursuant to the laws of the State of California\napplicable to contracts made and entirely to be performed therein.\n10. Entire Agreement; Modification. This Agreement constitutes the entire understanding among the Parties and may not be modified without\nthe express written consent of the Parties. This Agreement supercedes all prior written and/or oral and all contemporaneous oral agreements,\nunderstandings and negotiations regarding the subject matter hereof. Notwithstanding the foregoing sentence, Employee agrees to continue to be\nbound by the terms and conditions of the Employee Inventions and Proprietary Rights Assignment Agreement executed by the parties dated as of\nFebruary 27, 2004.\n11. Binding Arbitration of Disputes. Except as necessary to specifically enforce or enjoin the breach of any of the terms of this Agreement (as\na provisional remedy in aid of arbitration) and except as provided by applicable law, the Parties agree that any dispute that may arise in connection\nwith, arising out of or relating to this Agreement, or any dispute that relates in any way, in whole or in part, to Employee’s hiring by, employment\nwith or separation from the Company, or any other dispute by and between the Parties, including the Released Parties, shall be submitted to binding\narbitration pursuant to the employment dispute resolution rules and procedures of the American Arbitration Association or such other rules and\nprocedures to which the Parties may otherwise agree. This arbitration obligation extends to any and all claims that may arise by and between the\nParties, including the Released Parties, and expressly extends to, without limitation, claims or causes of action for wrongful termination, impairment\nof ability to compete in the open labor market, breach of express or implied contract, breach of the covenant of good faith and fair dealing, breach of\nfiduciary duty, fraud, misrepresentation, defamation, slander, infliction of emotional distress, discrimination, harassment, disability, loss of future\n5\nearnings, and claims under the California Constitution, the United States Constitution, and applicable state and federal fair employment laws, federal\nequal employment opportunity laws, and federal and state labor statutes and regulations, including, but not limited to, the Civil Rights Act of 1964,\nas amended, the Fair Labor Standards Act, as amended, the Worker Retraining and Notification Act of 1988, as amended, the Americans With\nDisabilities Act of 1990, as amended, the Rehabilitation Act of 1973, as amended, the Employee Retirement Income Security Act of 1974, as\namended, the Age Discrimination in Employment Act, as amended, and the California Fair Employment and Housing Act, as amended. Reasonable\ndiscovery shall be permitted in any arbitration and the arbitrator shall issue a written statement of decision that shall articulate the factual and legal\ngrounds for the decision and award. It is agreed that the arbitration fees and costs shall be paid by the Employer, unless otherwise permitted by law,\nin which case such fees and costs shall be evenly shared. The Employee shall pay for her own attorney fees unless reimbursement is otherwise\ndirected by the Arbitrator as part of a remedy authorized by statute.\n12. Voluntary Agreement; No Other Inducement. By signing this Agreement, Employee acknowledges and agrees that Employee enters into\nthis Agreement knowingly and voluntarily, has had sufficient opportunity to consult with legal counsel of Employee’s choice (and she in fact has\nconsulted with counsel in connection with the negotiation of and signing of this Agreement), and does not rely, and has not relied, on any fact,\nrepresentation, statement or assumption other than as specifically set forth in this Agreement.\nIN WITNESS WHEREOF, the Parties have signed this Agreement as of the dates set forth below.\nSALESFORCE.COM, INC.\n/s/ Kenneth I. Juster\nBy: Kenneth I. Juster\nIts: Executive Vice President, Legal Affairs and Corporate\nDevelopment\nDated: May 17, 2005\nEMPLOYEE\n/s/ Patricia Sueltz\nPatricia Sueltz\nDated: May 17, 2005\n6 5829a2f85d47530983ab21b078f2747f.pdf effective_date jurisdiction party term EX-99.(D)(2) 11 a2236490zex-99_d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (this “Agreement”) by and between Jamba, Inc., a Delaware corporation, including on behalf of\nits affiliates (the “Company”), and FOCUS Brands Inc., a Delaware corporation, including on behalf of its subsidiaries (the “Participant” and\ntogether with the Company, each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto (the\n“Effective Date”).\n1.\nGeneral. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the\nParties, each Party (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Party (in its\ncapacity as a recipient of information hereunder, a “Recipient”) certain Evaluation Material (as defined in Section 2 below) in accordance with\nthe provisions of this Agreement, and hereby agrees to take or abstain from taking certain other actions as hereinafter set forth.\n2.\nDefinitions.\n(a) The term “affiliates” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled\nby, or under common control with such Person.\n(b) The term “Beneficial Ownership” when used with reference to a security shall have the meaning ascribed to it under the\nSecurities Exchange Act of 1934, as amended (the “1934 Act”), except that for purposes of this definition, the term security shall include any\noption, warrant, or convertible security regardless of exercise or conversion date, and also include any stock appreciation right, or similar right\nwith an exercise or conversion privilege or a settlement payment or mechanism at a price related to the security or with a value derived in whole\nor in part from the value of the security, whether or not such instrument or right shall be subject to settlement in securities or otherwise and any\nother direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of the security.\n(c) The term “Evaluation Material” means information (whether oral, written, electronic or otherwise) concerning Provider\nwhich has been or is furnished to Recipient or its Representatives (as defined below) by or on behalf of Provider in connection with Recipient’s\nevaluation of a Possible Transaction, including Provider ’s business, financial condition, operations, assets, liabilities, personnel and contracts,\nand includes all notes, analyses, compilations, studies, interpretations or other documents prepared by Recipient or its Representatives which\ncontain or are based upon, in whole or in part, the information furnished by the Provider hereunder. The term Evaluation Material does not\ninclude information which (i) is or becomes generally available to the public other than as a result of a disclosure by Recipient or any of its\nRepresentatives in breach of this Agreement, (ii) was within a Recipient’s or its Representatives’ (on behalf of Recipient) possession, prior to its\nbeing furnished to Recipient or its Representatives by or on behalf of Provider or (iii) is or becomes available to Recipient or its Representatives\n(on behalf of Recipient) from a source other than the Provider or its Representatives, provided that the source of such information was not bound\nby a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, Provider with respect to such\ninformation or (iv) Recipient can reasonably show was independently developed by Recipient or Recipient’s Representatives without the use of\nor reference to any Evaluation Material provided by or on behalf of Provider or its Representatives.\n(d) The term “Representatives” shall include the directors, officers, employees, potential financing sources, partners, agents\nand advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of a Party who have a need to\nknow the Evaluation Material for purposes of evaluating a Possible Transaction, but only those of the foregoing\nwho actually receive Evaluation Material directly from or at the direction of such Party. For the avoidance of doubt, Roark Capital Acquisition\nLLC shall be a Representative of FOCUS Brands Inc. under this Agreement.\n(e) The term “Person” includes the media and any corporation, partnership, group, individual or other entity.\n3.\nUse of Evaluation Material. Each Recipient shall, and shall cause its Representatives to, (i) use the Evaluation Material solely\nfor the purpose of evaluating a Possible Transaction and (ii) keep the Evaluation Material confidential, and, subject to Section 5, will not, and\nwill cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such\ninformation may be disclosed to Recipient’s Representatives who need to know such information for the sole purpose of helping Recipient\nevaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s\nRepresentatives.\nThis Agreement does not grant Recipient or any of its Representatives any license to use Provider ’s Evaluation Material except as\nprovided herein. In addition, all proprietary and intellectual property rights in and to the Evaluation Material shall remain the sole property of\nProvider, and nothing in this Agreement shall be construed in any way to grant to Recipient or its Representatives or any other Person any\nexpress or implied option, license or other right, title or interest in or to any Evaluation Material, or to any intellectual property rights embodied\nin such Evaluation Material.\n4.\nNon-Disclosure of Discussions. Subject to Section 5, each Party agrees that, without the prior written consent of the other\nParty, such Party will not, and will cause its Representative not to, disclose to any other Person (i) that Evaluation Material has been exchanged\nbetween the Parties, (ii) that discussions or negotiations are taking place between the Parties concerning a Possible Transaction or any other\ntransaction between the Parties or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof) ; provided,\nhowever, that nothing contained herein shall be deemed to inhibit, impair or restrict the ability of Recipient or its Representatives from having\ndiscussions or negotiations with other persons relating to potential financing in connection with the Possible Transaction so long as each of such\nPersons agrees in writing to be bound by the terms of this Agreement applicable to Representatives.\n5.\nLegally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions,\ninterrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process)\nto disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall\nprovide Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so\nthat Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the\nabsence of a protective order or other remedy or the receipt of a waiver by Provider, a Recipient or any of its Representatives is nonetheless\nlegally compelled or required to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or would be\nliable for contempt or suffer other censure or penalty, such Recipient or its respective Representatives may, without liability hereunder, disclose\nto such requiring Person only that portion of such Evaluation Material or any such facts which Recipient or its Representatives is legally\ncompelled or required to disclose, provided that Recipient and/or its Representatives cooperate with Provider to obtain an appropriate protective\norder or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the\nmaterial. Notwithstanding anything in this Agreement to the contrary, neither Recipient nor Recipient’s Representatives shall be required to\nprovide notice or seek consent to disclose any information in connection with a routine audit by, or blanket request from, a regulatory or\ngovernmental entity with jurisdiction over Recipient or Recipient’s Representatives, and not directed at the Company or the Possible Transaction;\nprovided that the Recipient or its Representatives, as applicable, inform any such authority of the confidential nature of the information disclosed\nto them and to keep such information confidential in accordance with such authority’s policies or procedures.\n6.\n“Click Through” Agreements. The terms of this Agreement shall control over any additional purported confidentiality\nrequirements imposed by an offering memorandum or electronic database, dataroom, or similar repository of Evaluation Material to which\nRecipient or its Representatives are granted access in connection with this Agreement or a Possible Transaction, notwithstanding acceptance of\nsuch an offering memorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such\nadditional confidentiality conditions, it being understood and agreed that Recipient’s and its Representatives’ confidentiality obligations with\nrespect to the Evaluation Material are exclusively governed by this Agreement and may not be reduced or enlarged except by an agreement\nexecuted by the Parties hereto in traditional written format.\n7.\nReturn or Destruction of Evaluation Material. At any time upon the request of a Provider for any reason, a Recipient will, and\nwill direct its Representatives to, promptly, but not later than 10 business days, after receipt of such notice or request, destroy or return (at\nRecipient’s option) all Evaluation Material and all documents that incorporate Evaluation Material, and no copy or extract thereof (including\nelectronic copies) shall be retained, except that Recipient and its Representatives may retain one copy to be kept confidential and used solely for\narchival, legal, and compliance purposes. Recipient shall provide to the Provider written confirmation of destruction signed by an authorized\nrepresentative of Recipient. Notwithstanding the return or destruction of the Evaluation Material, Recipient and its Representatives will continue\nto be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material.\n8.\nNo Solicitation. Recipient will not, within eighteen months from the date of this Agreement, directly or indirectly solicit the\nemployment or consulting services of or employ or engage as a consultant any of the senior or key employees of the Provider or any of its\nsubsidiaries nor any other employee of the Provider or any if its subsidiaries with whom Recipient has had direct contact in connection with its\nevaluation of a Possible Transaction or of whom it has become aware as a result of its receipt of any Evaluation Material, so long as they are\nemployed by the Provider or any of its subsidiaries and for two months thereafter. For the purposes of clarification, the mere receipt of\nProvider ’s employee list by Recipient shall not be considered a solicitation of or a direct contact with such employees pursuant to this section. A\nRecipient is not prohibited from: (i) soliciting by means of a general advertisement not directed at any particular individual or the employees of\nthe Provider or its subsidiaries generally or (ii) engaging any recruiting firm or similar organization to identify or solicit individuals for\nemployment on behalf of such Recipient (and soliciting any person identified by any such recruiting firm or organization) so long as such\nRecipient does not identify either Provider or any of the individuals employed by Provider to be solicited by such recruiting firm or\norganization. The provisions of this Section 8 shall terminate and be of no further effect upon the acquisition of such Provider by a third party.\n9.\nStandstill. Participant does not own any of the capital stock of the Company as of the Effective Date. Participant agrees that,\nfor a period of one year after the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the Company, neither\nit nor (1) any of its majority-owned subsidiaries, (2) its Representatives (acting on its behalf), or (3) Roark Capital Acquisition LLC or its\naffiliates who receive Evaluation Material directly from Roark Capital Acquisition LLC or Participant or at their direction, will in any manner,\ndirectly or indirectly:\n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any\nother Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n(i)\nany acquisition of any securities (or any acquisition of Beneficial Ownership thereof) or assets of the Company or\nany of its subsidiaries,\n(ii)\nany tender or exchange offer, merger or other business combination involving the Company or any of its\nsubsidiaries,\n(iii)\nany recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the\nCompany or any of its subsidiaries, or\n(iv)\nany “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange\nCommission) or consents to vote any voting securities of the Company;\n(b) form, join or in any way participate in a “group” (as defined under the Act) with respect to the securities of the Company;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without\ncondition), any extraordinary transaction involving the Company or its securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or\npolicies of the Company;\n(e) take any action which may reasonably be expected to force the Company to make a public announcement regarding any of\nthe types of matters set forth in (a) above; or\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing.\nParticipant also agrees, and will cause its Representatives to agree, during the Standstill Period, not to request the Company (or its directors,\nofficers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 9 (including this sentence).\nNotwithstanding anything in this Section 9 to the contrary, if, at any time during the Standstill Period, a public announcement is made\nby the Company or any other Person (other than Participant or its Representatives) that a third party (other than Participant or its\nRepresentatives) intends to acquire at least twenty percent (20%) of the outstanding capital stock of the Company, voting control or a material\npart of the Company’s assets (by way of a tender offer, exchange offer, proxy contest, acquisition or other similar transaction), or if a definitive\nagreement is executed by the Company with a third party relating to such an acquisition of capital stock or assets, the restrictions set forth in this\nSection 9 shall immediately terminate and cease to be of any further effect on Participant.\nParticipant further agrees, and will cause its Representatives to agree, that unless otherwise directed by the Company in writing (i) all\ncommunications with the Company regarding a Possible Transaction, (ii) requests for additional information, facility tours, or management\nmeetings, and (iii) discussions or questions regarding procedures with respect to a Possible Transaction, will be submitted or\ndirected by Participant or its Representatives only to David Pace, the Company’s Chief Executive Officer, or a person or persons designated in\nwriting by David Pace. Further, except upon the Company’s prior written consent, neither Participant nor its Representatives acting on behalf of\nParticipant involved with a Possible Transaction or who have received Evaluation Material will, directly or indirectly, contact any stockholder,\ndirector, officer, employee or agent of the Company, or any customer or supplier of the Company, regarding the Evaluation Material or a Possible\nTransaction. Nothing contained herein shall prevent Participant or its Representatives from maintaining any contacts in the ordinary course of\nbusiness unrelated to a Possible Transaction or from conducting consumer surveys or other due diligence, in each case, without disclosing or\nrelying on any Evaluation Material.\n10.\nMaintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege,\nwork product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each\nParty understands and agrees that the Parties have a commonality of interest with respect to such matters and it is the desire, intention and mutual\nunderstanding of the Parties that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of\nsuch material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation\nMaterial that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled\nto such protection under these privileges, this Agreement, and under the joint defense doctrine.\n11.\nCompliance with Securities Laws. Each Recipient acknowledges that the Evaluation Material may include material nonpublic\ninformation (within the meaning of the securities laws of the United States) with respect to Provider. Each Recipient agrees not to use and will\ncause its Representatives to agree not to use any Evaluation Material of Provider in violation of applicable securities laws.\n12.\nNot a Transaction Agreement. Each Party understands and agrees that no contract or agreement providing for a Possible\nTransaction exists between the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered,\nand each Party hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible\nTransaction unless and until both Parties shall have entered into a final definitive agreement for a Possible Transaction. Each Party also agrees\nthat, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Party will be under\nany legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters\nspecifically agreed to herein. Neither Party is under any obligation to accept any proposal regarding a Possible Transaction and either Party may\nterminate discussions and negotiations with the other Party at any time.\n13.\nNo Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither\nProvider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation\nMaterial furnished by or on behalf of Provider and shall have no liability to Recipient, its Representatives or any other Person relating to or\nresulting from the use of the Evaluation Material furnished to a Recipient or its respective Representatives or any errors therein or omissions\ntherefrom. As to the information delivered to Recipient, Provider will only be liable for those representations or warranties which are made in a\nfinal definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be\nspecified therein. Nothing in this Agreement shall be construed as obligating Provider to provide, or to continue to provide, any information to\nany Person.\n14.\nModifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by\nwritten consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No\nfailure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n15.\nRemedies. Each Party understands and agrees that money damages may not be a sufficient remedy for any breach of this\nAgreement by either Party or any of its Representatives and that the Party against which such breach is committed shall be entitled to seek\nequitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be\ndeemed to be the exclusive remedies for a breach by either Party of this Agreement, but shall be in addition to all other remedies available at law\nor equity to the Party against which such breach is committed.\n16.\nLegal Fees. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either\nParty or its Representatives has breached this Agreement, then the Party which is, or the Party whose Representatives are, determined to have so\nbreached shall be liable and pay to the other Party the reasonable legal fees and costs incurred by the other Party in connection with such\nlitigation, including any appeal therefrom.\n17.\nGoverning Law. This Agreement is for the benefit of each Party and shall be governed by and construed in accordance with\nthe laws of the State of Delaware applicable to agreements made and to be performed entirely within such state.\n18.\nSeverability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent\njurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement\nshall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be\nunenforceable by reason of its extent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority\nmaking that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and\nenforce them in their modified form for all purposes of this Agreement.\n19.\nConstruction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or\nquestion of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of\nproof shall arise favoring or disfavoring either Party by virtue of the authorship at any of the provisions of this Agreement.\n20.\nTerm. This Agreement, and all obligations and other provisions hereunder, shall terminate two years after the date of this\nAgreement.\n21.\nEntire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and\nsupersedes all prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter.\n22.\nCounterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which\ntogether shall be deemed to constitute a single instrument.\n23.\nConsent to Representation. This agreement also constitutes notice to Participant that the Company has engaged DLA Piper\nLLP (US) and its affiliated firms as its legal counsel in connection with the Possible Transaction, and Participant hereby (i) consents to the\ncontinued representation of the Company by DLA Piper LLP (US) and its affiliated firms in relation to the Possible Transaction notwithstanding\nthe fact that DLA Piper LLP (US) may have represented, and may currently or in the future represent, Participant and/or any of its respective\naffiliates with respect to unrelated matters and (ii) waive any actual or alleged conflict and actual or alleged violation of ethical or comparable\nrules applicable to DLA Piper LLP (US) and its affiliated firms that may arise from its representation of the Company in connection with the\nPossible Transaction, including but not limited to representing the Company against Participant and/or its affiliates in litigation, arbitration, or\nmediation in connection therewith. Notwithstanding the foregoing, in the event of any dispute (including litigation, arbitration, or mediation)\nbetween the Parties related to this Agreement, DLA Piper LLP (US) and its affiliated firms will not represent either Party. In addition, Participant\nhereby acknowledges that the consent and waiver under this paragraph is voluntary and informed, and that Participant has obtained independent\nlegal advice with respect to this consent and waiver. Participant further agrees that they are each aware of the extent of their respective\nrelationships, if any, with DLA Piper LLP (US) and its affiliate firms, and do not require additional information from DLA Piper LLP (US) in\norder to understand the nature of this consent. Each of DLA Piper LLP (US) and its affiliated firms are an express third party beneficiary of this\nparagraph.\nIN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative\nas of the date written below.\nJAMBA, INC.\nFOCUS BRANDS INC.\nBy:\n/s/ David Pace\nBy: /s/ Sarah Powell\nName: Dave Pace\nName: Sarah Powell\nTitle:\nCEO\nTitle: EVP, General Counsel & Secretary\nDate: March 30, 2018\nDate: March 29, 2018 EX-99.(D)(2) 11 a2236490zex-99_d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (this “Agreement”) by and between Jamba, Inc., a Delaware corporation, including on behalf of\nits affiliates (the “Company”), and FOCUS Brands Inc., a Delaware corporation, including on behalf of its subsidiaries (the “Participant” and\ntogether with the Company, each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto (the\n“Effective Date”).\n1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the\nParties, each Party (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Party (in its\ncapacity as a recipient of information hereunder, a “Recipient”) certain Evaluation Material (as defined in Section 2 below) in accordance with\nthe provisions of this Agreement, and hereby agrees to take or abstain from taking certain other actions as hereinafter set forth.\n2. Definitions.\n(a) The term “dffiliates” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled\nby, or under common control with such Person.\n(b) The term “Beneficial Ownership” when used with reference to a security shall have the meaning ascribed to it under the\nSecurities Exchange Act of 1934, as amended (the “1934 Act”), except that for purposes of this definition, the term security shall include any\noption, warrant, or convertible security regardless of exercise or conversion date, and also include any stock appreciation right, or similar right\nwith an exercise or conversion privilege or a settlement payment or mechanism at a price related to the security or with a value derived in whole\nor in part from the value of the security, whether or not such instrument or right shall be subject to settlement in securities or otherwise and any\nother direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of the security.\n(c) The term “Evaluation Material” means information (whether oral, written, electronic or otherwise) concerning Provider\nwhich has been or is furnished to Recipient or its Representatives (as defined below) by or on behalf of Provider in connection with Recipient’s\nevaluation of a Possible Transaction, including Provider’s business, financial condition, operations, assets, liabilities, personnel and contracts,\nand includes all notes, analyses, compilations, studies, interpretations or other documents prepared by Recipient or its Representatives which\ncontain or are based upon, in whole or in part, the information furnished by the Provider hereunder. The term Evaluation Material does not\ninclude information which (i) is or becomes generally available to the public other than as a result of a disclosure by Recipient or any of its\nRepresentatives in breach of this Agreement, (ii) was within a Recipient’s or its Representatives’ (on behalf of Recipient) possession, prior to its\nbeing furnished to Recipient or its Representatives by or on behalf of Provider or (iii) is or becomes available to Recipient or its Representatives\n(on behalf of Recipient) from a source other than the Provider or its Representatives, provided that the source of such information was not bound\nby a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, Provider with respect to such\ninformation or (iv) Recipient can reasonably show was independently developed by Recipient or Recipient’s Representatives without the use of\nor reference to any Evaluation Material provided by or on behalf of Provider or its Representatives.\n(d) The term “Representatives” shall include the directors, officers, employees, potential financing sources, partners, agents\nand advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of a Party who have a need to\nknow the Evaluation Material for purposes of evaluating a Possible Transaction, but only those of the foregoing\n \nwho actually receive Evaluation Material directly from or at the direction of such Party. For the avoidance of doubt, Roark Capital Acquisition\nLLC shall be a Representative of FOCUS Brands Inc. under this Agreement.\n(e) The term “Person” includes the media and any corporation, partnership, group, individual or other entity.\n3. Use of Evaluation Material. Each Recipient shall, and shall cause its Representatives to, (i) use the Evaluation Material solely\nfor the purpose of evaluating a Possible Transaction and (ii) keep the Evaluation Material confidential, and, subject to Section 5, will not, and\nwill cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such\ninformation may be disclosed to Recipient’s Representatives who need to know such information for the sole purpose of helping Recipient\nevaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s\nRepresentatives.\nThis Agreement does not grant Recipient or any of its Representatives any license to use Provider’s Evaluation Material except as\nprovided herein. In addition, all proprietary and intellectual property rights in and to the Evaluation Material shall remain the sole property of\nProvider, and nothing in this Agreement shall be construed in any way to grant to Recipient or its Representatives or any other Person any\nexpress or implied option, license or other right, title or interest in or to any Evaluation Material, or to any intellectual property rights embodied\nin such Evaluation Material.\n4. Non-Disclosure of Discussions. Subject to Section 5, each Party agrees that, without the prior written consent of the other\nParty, such Party will not, and will cause its Representative not to, disclose to any other Person (i) that Evaluation Material has been exchanged\nbetween the Parties, (ii) that discussions or negotiations are taking place between the Parties concerning a Possible Transaction or any other\ntransaction between the Parties or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof) ; provided,\nhowever, that nothing contained herein shall be deemed to inhibit, impair or restrict the ability of Recipient or its Representatives from having\ndiscussions or negotiations with other persons relating to potential financing in connection with the Possible Transaction so long as each of such\nPersons agrees in writing to be bound by the terms of this Agreement applicable to Representatives.\n5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions,\ninterrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process)\nto disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall\nprovide Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so\nthat Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the\nabsence of a protective order or other remedy or the receipt of a waiver by Provider, a Recipient or any of its Representatives is nonetheless\nlegally compelled or required to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or would be\nliable for contempt or suffer other censure or penalty, such Recipient or its respective Representatives may, without liability hereunder, disclose\nto such requiring Person only that portion of such Evaluation Material or any such facts which Recipient or its Representatives is legally\ncompelled or required to disclose, provided that Recipient and/or its Representatives cooperate with Provider to obtain an appropriate protective\norder or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the\nmaterial. Notwithstanding anything in this Agreement to the contrary, neither Recipient nor Recipient’s Representatives shall be required to\nprovide notice or seek consent to disclose any information in connection with a routine audit by, or blanket request from, a regulatory or\n \ngovernmental entity with jurisdiction over Recipient or Recipient’s Representatives, and not directed at the Company or the Possible Transaction;\nprovided that the Recipient or its Representatives, as applicable, inform any such authority of the confidential nature of the information disclosed\nto them and to keep such information confidential in accordance with such authority’s policies or procedures.\n6. “Click Through” Agreements. The terms of this Agreement shall control over any additional purported confidentiality\nrequirements imposed by an offering memorandum or electronic database, dataroom, or similar repository of Evaluation Material to which\nRecipient or its Representatives are granted access in connection with this Agreement or a Possible Transaction, notwithstanding acceptance of\nsuch an offering memorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such\nadditional confidentiality conditions, it being understood and agreed that Recipient’s and its Representatives’ confidentiality obligations with\nrespect to the Evaluation Material are exclusively governed by this Agreement and may not be reduced or enlarged except by an agreement\nexecuted by the Parties hereto in traditional written format.\n \n7. Return or Destruction of Evaluation Material. At any time upon the request of a Provider for any reason, a Recipient will, and\nwill direct its Representatives to, promptly, but not later than 10 business days, after receipt of such notice or request, destroy or return (at\nRecipient’s option) all Evaluation Material and all documents that incorporate Evaluation Material, and no copy or extract thereof (including\nelectronic copies) shall be retained, except that Recipient and its Representatives may retain one copy to be kept confidential and used solely for\narchival, legal, and compliance purposes. Recipient shall provide to the Provider written confirmation of destruction signed by an authorized\nrepresentative of Recipient. Notwithstanding the return or destruction of the Evaluation Material, Recipient and its Representatives will continue\nto be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material.\n8. No Solicitation. Recipient will not, within eighteen months from the date of this Agreement, directly or indirectly solicit the\nemployment or consulting services of or employ or engage as a consultant any of the senior or key employees of the Provider or any of its\nsubsidiaries nor any other employee of the Provider or any if its subsidiaries with whom Recipient has had direct contact in connection with its\nevaluation of a Possible Transaction or of whom it has become aware as a result of its receipt of any Evaluation Material, so long as they are\nemployed by the Provider or any of its subsidiaries and for two months thereafter. For the purposes of clarification, the mere receipt of\nProvider’s employee list by Recipient shall not be considered a solicitation of or a direct contact with such employees pursuant to this section. A\nRecipient is not prohibited from: (i) soliciting by means of a general advertisement not directed at any particular individual or the employees of\nthe Provider or its subsidiaries generally or (ii) engaging any recruiting firm or similar organization to identify or solicit individuals for\nemployment on behalf of such Recipient (and soliciting any person identified by any such recruiting firm or organization) so long as such\nRecipient does not identify either Provider or any of the individuals employed by Provider to be solicited by such recruiting firm or\norganization. The provisions of this Section 8 shall terminate and be of no further effect upon the acquisition of such Provider by a third party.\n9. Standstill. Participant does not own any of the capital stock of the Company as of the Effective Date. Participant agrees that,\nfor a period of one year after the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the Company, neither\nit nor (1) any of its majority-owned subsidiaries, (2) its Representatives (acting on its behalf), or (3) Roark Capital Acquisition LLC or its\naffiliates who receive Evaluation Material directly from Roark Capital Acquisition LLC or Participant or at their direction, will in any manner,\ndirectly or indirectly:\n \n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any\nother Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n@) any acquisition of any securities (or any acquisition of Beneficial Ownership thereof) or assets of the Company or\nany of its subsidiaries,\n(ii) any tender or exchange offer, merger or other business combination involving the Company or any of its\nsubsidiaries,\n(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the\nCompany or any of its subsidiaries, or\n@iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange\nCommission) or consents to vote any voting securities of the Company;\n(b) form, join or in any way participate in a “group” (as defined under the Act) with respect to the securities of the Company;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without\ncondition), any extraordinary transaction involving the Company or its securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or\npolicies of the Company;\n(e) take any action which may reasonably be expected to force the Company to make a public announcement regarding any of\nthe types of matters set forth in (a) above; or\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing.\nParticipant also agrees, and will cause its Representatives to agree, during the Standstill Period, not to request the Company (or its directors,\nofficers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 9 (including this sentence).\nNotwithstanding anything in this Section 9 to the contrary, if, at any time during the Standstill Period, a public announcement is made\nby the Company or any other Person (other than Participant or its Representatives) that a third party (other than Participant or its\nRepresentatives) intends to acquire at least twenty percent (20%) of the outstanding capital stock of the Company, voting control or a material\npart of the Company’s assets (by way of a tender offer, exchange offer, proxy contest, acquisition or other similar transaction), or if a definitive\nagreement is executed by the Company with a third party relating to such an acquisition of capital stock or assets, the restrictions set forth in this\nSection 9 shall immediately terminate and cease to be of any further effect on Participant.\nParticipant further agrees, and will cause its Representatives to agree, that unless otherwise directed by the Company in writing (i) all\ncommunications with the Company regarding a Possible Transaction, (ii) requests for additional information, facility tours, or management\nmeetings, and (iii) discussions or questions regarding procedures with respect to a Possible Transaction, will be submitted or\n \ndirected by Participant or its Representatives only to David Pace, the Company’s Chief Executive Officer, or a person or persons designated in\nwriting by David Pace. Further, except upon the Company’s prior written consent, neither Participant nor its Representatives acting on behalf of\nParticipant involved with a Possible Transaction or who have received Evaluation Material will, directly or indirectly, contact any stockholder,\ndirector, officer, employee or agent of the Company, or any customer or supplier of the Company, regarding the Evaluation Material or a Possible\nTransaction. Nothing contained herein shall prevent Participant or its Representatives from maintaining any contacts in the ordinary course of\nbusiness unrelated to a Possible Transaction or from conducting consumer surveys or other due diligence, in each case, without disclosing or\nrelying on any Evaluation Material.\n10. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege,\nwork product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each\nParty understands and agrees that the Parties have a commonality of interest with respect to such matters and it is the desire, intention and mutual\nunderstanding of the Parties that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of\nsuch material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation\nMaterial that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled\nto such protection under these privileges, this Agreement, and under the joint defense doctrine.\n11. Compliance with Securities Laws. Each Recipient acknowledges that the Evaluation Material may include material nonpublic\ninformation (within the meaning of the securities laws of the United States) with respect to Provider. Each Recipient agrees not to use and will\ncause its Representatives to agree not to use any Evaluation Material of Provider in violation of applicable securities laws.\n12. Not a Transaction Agreement. Each Party understands and agrees that no contract or agreement providing for a Possible\nTransaction exists between the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered,\nand each Party hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible\nTransaction unless and until both Parties shall have entered into a final definitive agreement for a Possible Transaction. Each Party also agrees\nthat, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Party will be under\nany legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters\nspecifically agreed to herein. Neither Party is under any obligation to accept any proposal regarding a Possible Transaction and either Party may\nterminate discussions and negotiations with the other Party at any time.\n13. No Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither\nProvider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation\nMaterial furnished by or on behalf of Provider and shall have no liability to Recipient, its Representatives or any other Person relating to or\nresulting from the use of the Evaluation Material furnished to a Recipient or its respective Representatives or any errors therein or omissions\ntherefrom. As to the information delivered to Recipient, Provider will only be liable for those representations or warranties which are made in a\nfinal definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be\nspecified therein. Nothing in this Agreement shall be construed as obligating Provider to provide, or to continue to provide, any information to\nany Person.\n \n14. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by\nwritten consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No\nfailure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n15. Remedies. Each Party understands and agrees that money damages may not be a sufficient remedy for any breach of this\nAgreement by either Party or any of its Representatives and that the Party against which such breach is committed shall be entitled to seek\nequitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be\ndeemed to be the exclusive remedies for a breach by either Party of this Agreement, but shall be in addition to all other remedies available at law\nor equity to the Party against which such breach is committed.\n16. Legal Fees. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either\nParty or its Representatives has breached this Agreement, then the Party which is, or the Party whose Representatives are, determined to have so\nbreached shall be liable and pay to the other Party the reasonable legal fees and costs incurred by the other Party in connection with such\nlitigation, including any appeal therefrom.\n17. Governing Law. This Agreement is for the benefit of each Party and shall be governed by and construed in accordance with\nthe laws of the State of Delaware applicable to agreements made and to be performed entirely within such state.\n18. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent\njurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement\nshall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be\nunenforceable by reason of its extent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority\nmaking that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and\nenforce them in their modified form for all purposes of this Agreement.\n19. Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or\nquestion of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of\nproof shall arise favoring or disfavoring either Party by virtue of the authorship at any of the provisions of this Agreement.\n20. Term. This Agreement, and all obligations and other provisions hereunder, shall terminate two years after the date of this\nAgreement.\n21. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and\nsupersedes all prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter.\n22. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which\ntogether shall be deemed to constitute a single instrument.\n \n23. Consent to Representation. This agreement also constitutes notice to Participant that the Company has engaged DL A Piper\nLLP (US) and its affiliated firms as its legal counsel in connection with the Possible Transaction, and Participant hereby (i) consents to the\ncontinued representation of the Company by DLA Piper LLP (US) and its affiliated firms in relation to the Possible Transaction notwithstanding\nthe fact that DLA Piper LLP (US) may have represented, and may currently or in the future represent, Participant and/or any of its respective\naffiliates with respect to unrelated matters and (ii) waive any actual or alleged conflict and actual or alleged violation of ethical or comparable\nrules applicable to DLA Piper LLP (US) and its affiliated firms that may arise from its representation of the Company in connection with the\nPossible Transaction, including but not limited to representing the Company against Participant and/or its affiliates in litigation, arbitration, or\nmediation in connection therewith. Notwithstanding the foregoing, in the event of any dispute (including litigation, arbitration, or mediation)\nbetween the Parties related to this Agreement, DLA Piper LLP (US) and its affiliated firms will not represent either Party. In addition, Participant\nhereby acknowledges that the consent and waiver under this paragraph is voluntary and informed, and that Participant has obtained independent\nlegal advice with respect to this consent and waiver. Participant further agrees that they are each aware of the extent of their respective\nrelationships, if any, with DLA Piper LLP (US) and its affiliate firms, and do not require additional information from DL A Piper LLP (US) in\norder to understand the nature of this consent. Each of DL A Piper LLP (US) and its affiliated firms are an express third party beneficiary of this\nparagraph.\n \nIN WITNESS WHEREOQF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative\nas of the date written below.\nJAMBA, INC. FOCUS BRANDS INC.\nBy: /s/ David Pace By: /s/ Sarah Powell\nName: Dave Pace Name: Sarah Powell\nTitle: CEO Title: EVP, General Counsel & Secretary\nDate: March 30, 2018 Date: March 29, 2018\n EX-99.(D)(2) 11 a2236490zex-99_d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (this "Agreement") by and between Jamba, Inc., a Delaware corporation, including on behalf of\nits affiliates (the "Company"), and FOCUS Brands Inc., a Delaware corporation, including on behalf of its subsidiaries (the "Participant" and\ntogether with the Company, each a "Party" and collectively, the "Parties"), is dated as of the latest date set forth on the signature page hereto (the\n"Effective Date").\n1.\nGeneral. In connection with the consideration of a possible negotiated transaction (a "Possible Transaction") between the\nParties, each Party (in its capacity as a provider of information hereunder, a "Provider") is prepared to make available to the other Party (in its\ncapacity as a recipient of information hereunder, a "Recipient") certain Evaluation Material (as defined in Section 2 below) in accordance with\nthe provisions of this Agreement, and hereby agrees to take or abstain from taking certain other actions as hereinafter set forth.\n2.\nDefinitions.\n(a) The term "affiliates" shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled\nby, or under common control with such Person.\n(b) The term "Beneficial Ownership" when used with reference to a security shall have the meaning ascribed to it under the\nSecurities Exchange Act of 1934, as amended (the "1934 Act"), except that for purposes of this definition, the term security shall include any\noption,\nwarrant, or convertible security regardless of exercise or conversion date, and also include any stock appreciation right, or similar right\nwith an exercise or conversion privilege or a settlement payment or mechanism at a price related to the security or with a value derived in whole\nor in part from the value of the security, whether or not such instrument or right shall be subject to settlement in securities or otherwise and any\nother direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of the security.\n(c) The term "Evaluation Material" means information (whether oral, written, electronic or otherwise) concerning Provider\nwhich\nhas\nbeen\nor\nis\nfurnished\nto\nRecipient\nor\nits\nRepresentatives\n(as\ndefined\nbelow)\nby\nor\non\nbehalf\nof\nProvider\nin\nconnection\nwith\nRecipient's\nevaluation of a Possible Transaction, including Provider's business, financial condition, operations, assets, liabilities, personnel and contracts,\nand includes all notes, analyses, compilations, studies, interpretations or other documents prepared by Recipient or its Representatives which\ncontain or are based upon, in whole or in part, the information furnished by the Provider hereunder. The term Evaluation Material does not\ninclude information which (i) is or becomes generally available to the public other than as a result of a disclosure by Recipient or any of its\nRepresentatives in breach of this Agreement, (ii) was within a Recipient's or its Representatives' (on behalf of Recipient) possession, prior to its\nbeing furnished to Recipient or its Representatives by or on behalf of Provider or (iii) is or becomes available to Recipient or its Representatives\n(on behalf of Recipient) from a source other than the Provider or its Representatives, provided that the source of such information was not bound\nby a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, Provider with respect to such\ninformation or (iv) Recipient can reasonably show was independently developed by Recipient or Recipient's Representatives without the use\nof\nor reference to any Evaluation Material provided by or on behalf of Provider or its Representatives.\n(d) The term "Representatives" shall include the directors, officers, employees, potential financing sources, partners, agents\nand advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of a Party who have a need to\nknow the Evaluation Material for purposes of evaluating a Possible Transaction, but only those of the foregoing\nwho actually receive Evaluation Material directly from or at the direction of such Party. For the avoidance of doubt, Roark Capital Acquisition\nLLC shall be a Representative of FOCUS Brands Inc. under this Agreement.\n(e) The term "Person" includes the media and any corporation, partnership, group, individual or other entity.\n3.\nUse of Evaluation Material. Each Recipient shall, and shall cause its Representatives to, (i) use the Evaluation Material solely\nfor the purpose of evaluating a Possible Transaction and (ii) keep the Evaluation Material confidential, and, subject to Section 5, will not, and\nwill cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such\ninformation may be disclosed to Recipient's Representatives who need to know such information for the sole purpose of helping Recipient\nevaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient's\nRepresentatives.\nThis Agreement does not grant Recipient or any of its Representatives any license to use Provider's Evaluation Material except as\nprovided herein. In addition, all proprietary and intellectual property rights in and to the Evaluation Material shall remain the sole property\nof\nProvider, and nothing in this Agreement shall be construed in any way to grant to Recipient or its Representatives or any other Person any\nexpress or implied option, license or other right, title or interest in or to any Evaluation Material, or to any intellectual property rights embodied\nin such Evaluation Material.\n4.\nNon-Disclosure of Discussions. Subject to Section 5, each Party agrees that, without the prior written consent of the other\nParty, such Party will not, and will cause its Representative not to, disclose to any other Person (i) that Evaluation Material has been exchanged\nbetween the Parties, (ii) that discussions or negotiations are taking place between the Parties concerning a Possible Transaction or any other\ntransaction between the Parties or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof) provided,\nhowever, that nothing contained herein shall be deemed to inhibit, impair or restrict the ability of Recipient or its Representatives from having\ndiscussions or negotiations with other persons relating to potential financing in connection with the Possible Transaction so long as each of such\nPersons agrees in writing to be bound by the terms of this Agreement applicable to Representatives.\n5.\nLegally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions,\ninterrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process)\nto disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall\nprovide Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed\nso\nthat\nProvider\nmay\nseek\na\nprotective\norder\nor\nother\nappropriate\nremedy\nand/or\nwaive\ncompliance\nwith\nthe\nprovisions\nof\nthis\nAgreement.\nIf,\nin\nthe\nabsence of a protective order or other remedy or the receipt of a waiver by Provider, a Recipient or any of its Representatives is nonetheless\nlegally compelled or required to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or would be\nliable for contempt or suffer other censure or penalty, such Recipient or its respective Representatives may, without liability hereunder, disclose\nto\nsuch requiring Person only that portion of such Evaluation Material or any such facts which Recipient or its Representatives is legally\ncompelled or required to disclose, provided that Recipient and/or its Representatives cooperate with Provider to obtain an appropriate protective\norder or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving\nthe\nmaterial. Notwithstanding anything in this Agreement to the contrary, neither Recipient nor Recipient's Representatives shall be required to\nprovide notice or seek consent to disclose any information in connection with a routine audit by, or blanket request from, a regulatory or\ngovernmental entity with jurisdiction over Recipient or Recipient's Representatives, and not directed at the Company or the Possible Transaction;\nprovided that the Recipient or its Representatives, as applicable, inform any such authority of the confidential nature of the information disclosed\nto them and to keep such information confidential in accordance with such authority's policies or procedures.\n6.\n"Click Through" Agreements. The terms of this Agreement shall control over any additional purported confidentiality\nrequirements imposed by an offering memorandum or electronic database, dataroom, or similar repository of Evaluation Material to which\nRecipient or its Representatives are granted access in connection with this Agreement or a Possible Transaction, notwithstanding acceptance of\nsuch\nan\noffering\nmemorandum\nor\nsubmission\nof\nan\nelectronic\nsignature,\n"clicking"\non\nan\n"I\nAgree"\nicon\nor\nother\nindication\nof\nassent\nto\nsuch\nadditional confidentiality conditions, it being understood and agreed that Recipient's and its Representatives' confidentiality obligations with\nrespect to the Evaluation Material are exclusively governed by this Agreement and may not be reduced or enlarged except by an agreement\nexecuted by the Parties hereto in traditional written format.\n7.\nReturn or Destruction of Evaluation Material. At any time upon the request of a Provider for any reason, a Recipient will, and\nwill direct its Representatives to, promptly, but not later than 10 business days, after receipt of such notice or request, destroy or return (at\nRecipient's option) all Evaluation Material and all documents that incorporate Evaluation Material, and no copy or extract thereof (including\nelectronic copies) shall be retained, except that Recipient and its Representatives may retain one copy to be kept confidential and used solely for\narchival,\nlegal,\nand\ncompliance\npurposes.\nRecipient\nshall\nprovide\nto\nthe\nProvider\nwritten\nconfirmation\nof\ndestruction\nsigned\nby\nan\nauthorized\nrepresentative of Recipient. Notwithstanding the return or destruction of the Evaluation Material, Recipient and its Representatives will continue\nto be bound by such Recipient's obligations hereunder with respect to such Evaluation Material.\n8.\nNo Solicitation. Recipient will not, within eighteen months from the date of this Agreement, directly or indirectly solicit the\nemployment or consulting services of or employ or engage as a consultant any of the senior or key employees of the Provider or any of its\nsubsidiaries nor any other employee of the Provider or any if its subsidiaries with whom Recipient has had direct contact in connection with\nits\nevaluation of a Possible Transaction or of whom it has become aware as a result of its receipt of any Evaluation Material, so long as they are\nemployed by the Provider or any of its subsidiaries and for two months thereafter. For the purposes of clarification, the mere receipt of\nProvider's employee list by Recipient shall not be considered a solicitation of or a direct contact with such employees pursuant to this section.\nA\nRecipient is not prohibited from: (i) soliciting by means of a general advertisement not directed at any particular individual or the employees of\nthe Provider or its subsidiaries generally or (ii) engaging any recruiting firm or similar organization to identify or solicit individuals for\nemployment on behalf of such Recipient (and soliciting any person identified by any such recruiting firm or organization) so long as such\nRecipient does not identify either Provider or any of the individuals employed by Provider to be solicited by such recruiting firm or\norganization. The provisions of this Section 8 shall terminate and be of no further effect upon the acquisition of such Provider by a third party.\n9.\nStandstill. Participant does not own any of the capital stock of the Company as of the Effective Date. Participant agrees that,\nfor a period of one year after the date of this Agreement (the "Standstill Period"), unless specifically invited in writing by the Company, neither\nit nor (1) any of its majority-owned subsidiaries, (2) its Representatives (acting on its behalf), or (3) Roark Capital Acquisition LLC or its\naffiliates who receive Evaluation Material directly from Roark Capital Acquisition LLC or Participant or at their direction, will in any manner,\ndirectly or indirectly:\n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any\nother Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n(i)\nany acquisition of any securities (or any acquisition of Beneficial Ownership thereof) or assets of the Company or\nany of its subsidiaries,\n(ii)\nany tender or exchange offer, merger or other business combination involving the Company or any of\nits\nsubsidiaries,\n(iii)\nany recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the\nCompany or any of its subsidiaries, or\n(iv)\nany "solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and Exchange\nCommission) or consents to vote any voting securities of the Company;\n(b) form, join or in any way participate in a "group" (as defined under the Act) with respect to the securities of the Company;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without\ncondition), any extraordinary transaction involving the Company or its securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or\npolicies of the Company;\n(e) take any action which may reasonably be expected to force the Company to make a public announcement regarding any of\nthe types of matters set forth in (a) above; or\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing.\nParticipant also agrees, and will cause its Representatives to agree, during the Standstill Period, not to request the Company (or its directors,\nofficers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 9 (including this sentence).\nNotwithstanding anything in this Section 9 to the contrary, if, at any time during the Standstill Period, a public announcement is made\nby the Company or any other Person (other than Participant or its Representatives) that a third party (other than Participant or its\nRepresentatives) intends to acquire at least twenty percent (20%) of the outstanding capita stock of the Company, voting control or a material\npart of the Company's assets (by way of a tender offer, exchange offer, proxy contest, acquisition or other similar transaction), or if a definitive\nagreement is executed by the Company with a third party relating to such an acquisition of capital stock or assets, the restrictions set forth in this\nSection 9 shall immediately terminate and cease to be of any further effect on Participant.\nParticipant further agrees, and will cause its Representatives to agree, that unless otherwise directed by the Company in writing (i) all\ncommunications with the Company regarding a Possible Transaction, (ii) requests for additional information, facility tours, or management\nmeetings, and (iii) discussions or questions regarding procedures with respect to a Possible Transaction, will be submitted or\ndirected by Participant or its Representatives only to David Pace, the Company's Chief Executive Officer, or a person or persons designated in\nwriting by David Pace. Further, except upon the Company's prior written consent, neither Participant nor its Representatives acting on behalf\nof\nParticipant involved with a Possible Transaction or who have received Evaluation Material will, directly or indirectly, contact any stockholder,\ndirector, officer, employee or agent of the Company, or any customer or supplier of the Company, regarding the Evaluation Material or a Possible\nTransaction. Nothing contained herein shall prevent Participant or its Representatives from maintaining any contacts in the ordinary course of\nbusiness unrelated to a Possible Transaction or from conducting consumer surveys or other due diligence, in each case, without disclosing or\nrelying on any Evaluation Material.\n10.\nMaintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege,\nwork product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each\nParty understands and agrees that the Parties have a commonality of interest with respect to such matters and it is the desire, intention and mutual\nunderstanding of the Parties that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of\nsuch material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation\nMaterial that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled\nto such protection under these privileges, this Agreement, and under the joint defense doctrine.\n11.\nCompliance with Securities Laws. Each Recipient acknowledges that the Evaluation Material may include material nonpublic\ninformation (within the meaning of the securities laws of the United States) with respect to Provider. Each Recipient agrees not to use and will\ncause its Representatives to agree not to use any Evaluation Material of Provider in violation of applicable securities laws.\n12.\nNot a Transaction Agreement. Each Party understands and agrees that no contract or agreement providing for a Possible\nTransaction exists between the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered,\nand each Party hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible\nTransaction unless and until both Parties shall have entered into a final definitive agreement for a Possible Transaction. Each Party also agrees\nthat,\nunless\nand\nuntil\na\nfinal\ndefinitive\nagreement\nregarding\na\nPossible\nTransaction\nhas\nbeen\nexecuted\nand\ndelivered,\nneither\nParty\nwill\nbe\nunder\nany legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters\nspecifically agreed to herein. Neither Party is under any obligation to accept any proposal regarding a Possible Transaction and either Party may\nterminate discussions and negotiations with the other Party at any time.\n13.\nNO Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither\nProvider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation\nMaterial furnished by or on behalf of Provider and shall have no liability to Recipient, its Representatives or any other Person relating to or\nresulting from the use of the Evaluation Material furnished to a Recipient or its respective Representatives or any errors therein or omissions\ntherefrom. As to the information delivered to Recipient, Provider will only be liable for those representations or warranties which are made in a\nfinal definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be\nspecified therein. Nothing in this Agreement shall be construed as obligating Provider to provide, or to continue to provide, any information to\nany Person.\n14.\nModifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by\nwritten consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No\nfailure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n15.\nRemedies. Each Party understands and agrees that money damages may not be a sufficient remedy for any breach of this\nAgreement by either Party or any of its Representatives and that the Party against which such breach is committed shall be entitled to seek\nequitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be\ndeemed to be the exclusive remedies for a breach by either Party of this Agreement, but shall be in addition to all other remedies available at\nlaw\nor equity to the Party against which such breach is committed.\n16.\nLegal Fees. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either\nParty or its Representatives has breached this Agreement, then the Party which is, or the Party whose Representatives are, determined to have so\nbreached shall be liable and pay to the other Party the reasonable legal fees and costs incurred by the other Party in connection with such\nlitigation, including any appeal therefrom.\n17.\nGoverning Law. This Agreement is for the benefit of each Party and shall be governed by and construed in accordance with\nthe laws of the State of Delaware applicable to agreements made and to be performed entirely within such state.\n18.\nSeverability.. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent\njurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement\nshall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to\nbe\nunenforceable by reason of its extent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority\nmaking that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and\nenforce them in their modified form for all purposes of this Agreement.\n19.\nConstruction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or\nquestion of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of\nproof shall arise favoring or disfavoring either Party by virtue of the authorship at any of the provisions of this Agreement.\n20.\nTerm. This Agreement, and all obligations and other provisions hereunder, shall terminate two years after the date of this\nAgreement.\n21.\nEntire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and\nsupersedes all prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter.\n22.\nCounterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which\ntogether shall be deemed to constitute a single instrument.\n23.\nConsent to Representation. This agreement also constitutes notice to Participant that the Company has engaged DLA Piper\nLLP (US) and its affiliated firms as its legal counsel in connection with the Possible Transaction, and Participant hereby (i) consents to the\ncontinued representation of the Company by DLA Piper LLP (US) and its affiliated firms in relation to the Possible Transaction notwithstanding\nthe\nfact\nthat\nDLA\nPiper\nLLP\n(US)\nmay\nhave\nrepresented,\nand\nmay\ncurrently\nor\nin\nthe\nfuture\nrepresent,\nParticipant\nand/or\nany\nof\nits\nrespective\naffiliates with respect to unrelated matters and (ii) waive any actual or alleged conflict and actual or alleged violation of ethical or comparable\nrules applicable to DLA Piper LLP (US) and its affiliated firms that may arise from its representation of the Company in connection with the\nPossible Transaction, including but not limited to representing the Company against Participant and/or its affiliates in litigation, arbitration, or\nmediation in connection therewith. Notwithstanding the foregoing, in the event of any dispute (including litigation, arbitration, or mediation)\nbetween the Parties related to this Agreement, DLA Piper LLP (US) and its affiliated firms will not represent either Party. In addition, Participant\nhereby acknowledges that the consent and waiver under this paragraph is voluntary and informed, and that Participant has obtained independent\nlegal advice with respect to this consent and waiver. Participant further agrees that they are each aware of the extent of their respective\nrelationships, if any, with DLA Piper LLP (US) and its affiliate firms, and do not require additional information from DLA Piper LLP (US)\nin\norder to understand the nature of this consent. Each of DLA Piper LLP (US) and its affiliated firms are an express third party beneficiary of this\nparagraph.\nIN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative\nas of the date written below.\nJAMBA, INC.\nFOCUS BRANDS INC.\nBy:\n/s/ David Pace\nBy:\n/s/ Sarah Powell\nName: Dave Pace\nName:\nSarah Powell\nTitle: CEO\nTitle:\nEVP, General Counsel & Secretary\nDate: March 30, 2018\nDate: March 29, 2018 EX-99.(D)(2) 11 a2236490zex-99_d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (this “Agreement”) by and between Jamba, Inc., a Delaware corporation, including on behalf of\nits affiliates (the “Company”), and FOCUS Brands Inc., a Delaware corporation, including on behalf of its subsidiaries (the “Participant” and\ntogether with the Company, each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto (the\n“Effective Date”).\n1.\nGeneral. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the\nParties, each Party (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Party (in its\ncapacity as a recipient of information hereunder, a “Recipient”) certain Evaluation Material (as defined in Section 2 below) in accordance with\nthe provisions of this Agreement, and hereby agrees to take or abstain from taking certain other actions as hereinafter set forth.\n2.\nDefinitions.\n(a) The term “affiliates” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled\nby, or under common control with such Person.\n(b) The term “Beneficial Ownership” when used with reference to a security shall have the meaning ascribed to it under the\nSecurities Exchange Act of 1934, as amended (the “1934 Act”), except that for purposes of this definition, the term security shall include any\noption, warrant, or convertible security regardless of exercise or conversion date, and also include any stock appreciation right, or similar right\nwith an exercise or conversion privilege or a settlement payment or mechanism at a price related to the security or with a value derived in whole\nor in part from the value of the security, whether or not such instrument or right shall be subject to settlement in securities or otherwise and any\nother direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of the security.\n(c) The term “Evaluation Material” means information (whether oral, written, electronic or otherwise) concerning Provider\nwhich has been or is furnished to Recipient or its Representatives (as defined below) by or on behalf of Provider in connection with Recipient’s\nevaluation of a Possible Transaction, including Provider ’s business, financial condition, operations, assets, liabilities, personnel and contracts,\nand includes all notes, analyses, compilations, studies, interpretations or other documents prepared by Recipient or its Representatives which\ncontain or are based upon, in whole or in part, the information furnished by the Provider hereunder. The term Evaluation Material does not\ninclude information which (i) is or becomes generally available to the public other than as a result of a disclosure by Recipient or any of its\nRepresentatives in breach of this Agreement, (ii) was within a Recipient’s or its Representatives’ (on behalf of Recipient) possession, prior to its\nbeing furnished to Recipient or its Representatives by or on behalf of Provider or (iii) is or becomes available to Recipient or its Representatives\n(on behalf of Recipient) from a source other than the Provider or its Representatives, provided that the source of such information was not bound\nby a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, Provider with respect to such\ninformation or (iv) Recipient can reasonably show was independently developed by Recipient or Recipient’s Representatives without the use of\nor reference to any Evaluation Material provided by or on behalf of Provider or its Representatives.\n(d) The term “Representatives” shall include the directors, officers, employees, potential financing sources, partners, agents\nand advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of a Party who have a need to\nknow the Evaluation Material for purposes of evaluating a Possible Transaction, but only those of the foregoing\nwho actually receive Evaluation Material directly from or at the direction of such Party. For the avoidance of doubt, Roark Capital Acquisition\nLLC shall be a Representative of FOCUS Brands Inc. under this Agreement.\n(e) The term “Person” includes the media and any corporation, partnership, group, individual or other entity.\n3.\nUse of Evaluation Material. Each Recipient shall, and shall cause its Representatives to, (i) use the Evaluation Material solely\nfor the purpose of evaluating a Possible Transaction and (ii) keep the Evaluation Material confidential, and, subject to Section 5, will not, and\nwill cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such\ninformation may be disclosed to Recipient’s Representatives who need to know such information for the sole purpose of helping Recipient\nevaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s\nRepresentatives.\nThis Agreement does not grant Recipient or any of its Representatives any license to use Provider ’s Evaluation Material except as\nprovided herein. In addition, all proprietary and intellectual property rights in and to the Evaluation Material shall remain the sole property of\nProvider, and nothing in this Agreement shall be construed in any way to grant to Recipient or its Representatives or any other Person any\nexpress or implied option, license or other right, title or interest in or to any Evaluation Material, or to any intellectual property rights embodied\nin such Evaluation Material.\n4.\nNon-Disclosure of Discussions. Subject to Section 5, each Party agrees that, without the prior written consent of the other\nParty, such Party will not, and will cause its Representative not to, disclose to any other Person (i) that Evaluation Material has been exchanged\nbetween the Parties, (ii) that discussions or negotiations are taking place between the Parties concerning a Possible Transaction or any other\ntransaction between the Parties or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof) ; provided,\nhowever, that nothing contained herein shall be deemed to inhibit, impair or restrict the ability of Recipient or its Representatives from having\ndiscussions or negotiations with other persons relating to potential financing in connection with the Possible Transaction so long as each of such\nPersons agrees in writing to be bound by the terms of this Agreement applicable to Representatives.\n5.\nLegally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions,\ninterrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process)\nto disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall\nprovide Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so\nthat Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the\nabsence of a protective order or other remedy or the receipt of a waiver by Provider, a Recipient or any of its Representatives is nonetheless\nlegally compelled or required to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or would be\nliable for contempt or suffer other censure or penalty, such Recipient or its respective Representatives may, without liability hereunder, disclose\nto such requiring Person only that portion of such Evaluation Material or any such facts which Recipient or its Representatives is legally\ncompelled or required to disclose, provided that Recipient and/or its Representatives cooperate with Provider to obtain an appropriate protective\norder or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the\nmaterial. Notwithstanding anything in this Agreement to the contrary, neither Recipient nor Recipient’s Representatives shall be required to\nprovide notice or seek consent to disclose any information in connection with a routine audit by, or blanket request from, a regulatory or\ngovernmental entity with jurisdiction over Recipient or Recipient’s Representatives, and not directed at the Company or the Possible Transaction;\nprovided that the Recipient or its Representatives, as applicable, inform any such authority of the confidential nature of the information disclosed\nto them and to keep such information confidential in accordance with such authority’s policies or procedures.\n6.\n“Click Through” Agreements. The terms of this Agreement shall control over any additional purported confidentiality\nrequirements imposed by an offering memorandum or electronic database, dataroom, or similar repository of Evaluation Material to which\nRecipient or its Representatives are granted access in connection with this Agreement or a Possible Transaction, notwithstanding acceptance of\nsuch an offering memorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such\nadditional confidentiality conditions, it being understood and agreed that Recipient’s and its Representatives’ confidentiality obligations with\nrespect to the Evaluation Material are exclusively governed by this Agreement and may not be reduced or enlarged except by an agreement\nexecuted by the Parties hereto in traditional written format.\n7.\nReturn or Destruction of Evaluation Material. At any time upon the request of a Provider for any reason, a Recipient will, and\nwill direct its Representatives to, promptly, but not later than 10 business days, after receipt of such notice or request, destroy or return (at\nRecipient’s option) all Evaluation Material and all documents that incorporate Evaluation Material, and no copy or extract thereof (including\nelectronic copies) shall be retained, except that Recipient and its Representatives may retain one copy to be kept confidential and used solely for\narchival, legal, and compliance purposes. Recipient shall provide to the Provider written confirmation of destruction signed by an authorized\nrepresentative of Recipient. Notwithstanding the return or destruction of the Evaluation Material, Recipient and its Representatives will continue\nto be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material.\n8.\nNo Solicitation. Recipient will not, within eighteen months from the date of this Agreement, directly or indirectly solicit the\nemployment or consulting services of or employ or engage as a consultant any of the senior or key employees of the Provider or any of its\nsubsidiaries nor any other employee of the Provider or any if its subsidiaries with whom Recipient has had direct contact in connection with its\nevaluation of a Possible Transaction or of whom it has become aware as a result of its receipt of any Evaluation Material, so long as they are\nemployed by the Provider or any of its subsidiaries and for two months thereafter. For the purposes of clarification, the mere receipt of\nProvider ’s employee list by Recipient shall not be considered a solicitation of or a direct contact with such employees pursuant to this section. A\nRecipient is not prohibited from: (i) soliciting by means of a general advertisement not directed at any particular individual or the employees of\nthe Provider or its subsidiaries generally or (ii) engaging any recruiting firm or similar organization to identify or solicit individuals for\nemployment on behalf of such Recipient (and soliciting any person identified by any such recruiting firm or organization) so long as such\nRecipient does not identify either Provider or any of the individuals employed by Provider to be solicited by such recruiting firm or\norganization. The provisions of this Section 8 shall terminate and be of no further effect upon the acquisition of such Provider by a third party.\n9.\nStandstill. Participant does not own any of the capital stock of the Company as of the Effective Date. Participant agrees that,\nfor a period of one year after the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the Company, neither\nit nor (1) any of its majority-owned subsidiaries, (2) its Representatives (acting on its behalf), or (3) Roark Capital Acquisition LLC or its\naffiliates who receive Evaluation Material directly from Roark Capital Acquisition LLC or Participant or at their direction, will in any manner,\ndirectly or indirectly:\n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any\nother Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n(i)\nany acquisition of any securities (or any acquisition of Beneficial Ownership thereof) or assets of the Company or\nany of its subsidiaries,\n(ii)\nany tender or exchange offer, merger or other business combination involving the Company or any of its\nsubsidiaries,\n(iii)\nany recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the\nCompany or any of its subsidiaries, or\n(iv)\nany “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange\nCommission) or consents to vote any voting securities of the Company;\n(b) form, join or in any way participate in a “group” (as defined under the Act) with respect to the securities of the Company;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without\ncondition), any extraordinary transaction involving the Company or its securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or\npolicies of the Company;\n(e) take any action which may reasonably be expected to force the Company to make a public announcement regarding any of\nthe types of matters set forth in (a) above; or\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing.\nParticipant also agrees, and will cause its Representatives to agree, during the Standstill Period, not to request the Company (or its directors,\nofficers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 9 (including this sentence).\nNotwithstanding anything in this Section 9 to the contrary, if, at any time during the Standstill Period, a public announcement is made\nby the Company or any other Person (other than Participant or its Representatives) that a third party (other than Participant or its\nRepresentatives) intends to acquire at least twenty percent (20%) of the outstanding capital stock of the Company, voting control or a material\npart of the Company’s assets (by way of a tender offer, exchange offer, proxy contest, acquisition or other similar transaction), or if a definitive\nagreement is executed by the Company with a third party relating to such an acquisition of capital stock or assets, the restrictions set forth in this\nSection 9 shall immediately terminate and cease to be of any further effect on Participant.\nParticipant further agrees, and will cause its Representatives to agree, that unless otherwise directed by the Company in writing (i) all\ncommunications with the Company regarding a Possible Transaction, (ii) requests for additional information, facility tours, or management\nmeetings, and (iii) discussions or questions regarding procedures with respect to a Possible Transaction, will be submitted or\ndirected by Participant or its Representatives only to David Pace, the Company’s Chief Executive Officer, or a person or persons designated in\nwriting by David Pace. Further, except upon the Company’s prior written consent, neither Participant nor its Representatives acting on behalf of\nParticipant involved with a Possible Transaction or who have received Evaluation Material will, directly or indirectly, contact any stockholder,\ndirector, officer, employee or agent of the Company, or any customer or supplier of the Company, regarding the Evaluation Material or a Possible\nTransaction. Nothing contained herein shall prevent Participant or its Representatives from maintaining any contacts in the ordinary course of\nbusiness unrelated to a Possible Transaction or from conducting consumer surveys or other due diligence, in each case, without disclosing or\nrelying on any Evaluation Material.\n10.\nMaintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege,\nwork product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each\nParty understands and agrees that the Parties have a commonality of interest with respect to such matters and it is the desire, intention and mutual\nunderstanding of the Parties that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of\nsuch material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation\nMaterial that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled\nto such protection under these privileges, this Agreement, and under the joint defense doctrine.\n11.\nCompliance with Securities Laws. Each Recipient acknowledges that the Evaluation Material may include material nonpublic\ninformation (within the meaning of the securities laws of the United States) with respect to Provider. Each Recipient agrees not to use and will\ncause its Representatives to agree not to use any Evaluation Material of Provider in violation of applicable securities laws.\n12.\nNot a Transaction Agreement. Each Party understands and agrees that no contract or agreement providing for a Possible\nTransaction exists between the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered,\nand each Party hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible\nTransaction unless and until both Parties shall have entered into a final definitive agreement for a Possible Transaction. Each Party also agrees\nthat, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Party will be under\nany legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters\nspecifically agreed to herein. Neither Party is under any obligation to accept any proposal regarding a Possible Transaction and either Party may\nterminate discussions and negotiations with the other Party at any time.\n13.\nNo Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither\nProvider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation\nMaterial furnished by or on behalf of Provider and shall have no liability to Recipient, its Representatives or any other Person relating to or\nresulting from the use of the Evaluation Material furnished to a Recipient or its respective Representatives or any errors therein or omissions\ntherefrom. As to the information delivered to Recipient, Provider will only be liable for those representations or warranties which are made in a\nfinal definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be\nspecified therein. Nothing in this Agreement shall be construed as obligating Provider to provide, or to continue to provide, any information to\nany Person.\n14.\nModifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by\nwritten consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No\nfailure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n15.\nRemedies. Each Party understands and agrees that money damages may not be a sufficient remedy for any breach of this\nAgreement by either Party or any of its Representatives and that the Party against which such breach is committed shall be entitled to seek\nequitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be\ndeemed to be the exclusive remedies for a breach by either Party of this Agreement, but shall be in addition to all other remedies available at law\nor equity to the Party against which such breach is committed.\n16.\nLegal Fees. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either\nParty or its Representatives has breached this Agreement, then the Party which is, or the Party whose Representatives are, determined to have so\nbreached shall be liable and pay to the other Party the reasonable legal fees and costs incurred by the other Party in connection with such\nlitigation, including any appeal therefrom.\n17.\nGoverning Law. This Agreement is for the benefit of each Party and shall be governed by and construed in accordance with\nthe laws of the State of Delaware applicable to agreements made and to be performed entirely within such state.\n18.\nSeverability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent\njurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement\nshall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be\nunenforceable by reason of its extent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority\nmaking that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and\nenforce them in their modified form for all purposes of this Agreement.\n19.\nConstruction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or\nquestion of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of\nproof shall arise favoring or disfavoring either Party by virtue of the authorship at any of the provisions of this Agreement.\n20.\nTerm. This Agreement, and all obligations and other provisions hereunder, shall terminate two years after the date of this\nAgreement.\n21.\nEntire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and\nsupersedes all prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter.\n22.\nCounterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which\ntogether shall be deemed to constitute a single instrument.\n23.\nConsent to Representation. This agreement also constitutes notice to Participant that the Company has engaged DLA Piper\nLLP (US) and its affiliated firms as its legal counsel in connection with the Possible Transaction, and Participant hereby (i) consents to the\ncontinued representation of the Company by DLA Piper LLP (US) and its affiliated firms in relation to the Possible Transaction notwithstanding\nthe fact that DLA Piper LLP (US) may have represented, and may currently or in the future represent, Participant and/or any of its respective\naffiliates with respect to unrelated matters and (ii) waive any actual or alleged conflict and actual or alleged violation of ethical or comparable\nrules applicable to DLA Piper LLP (US) and its affiliated firms that may arise from its representation of the Company in connection with the\nPossible Transaction, including but not limited to representing the Company against Participant and/or its affiliates in litigation, arbitration, or\nmediation in connection therewith. Notwithstanding the foregoing, in the event of any dispute (including litigation, arbitration, or mediation)\nbetween the Parties related to this Agreement, DLA Piper LLP (US) and its affiliated firms will not represent either Party. In addition, Participant\nhereby acknowledges that the consent and waiver under this paragraph is voluntary and informed, and that Participant has obtained independent\nlegal advice with respect to this consent and waiver. Participant further agrees that they are each aware of the extent of their respective\nrelationships, if any, with DLA Piper LLP (US) and its affiliate firms, and do not require additional information from DLA Piper LLP (US) in\norder to understand the nature of this consent. Each of DLA Piper LLP (US) and its affiliated firms are an express third party beneficiary of this\nparagraph.\nIN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative\nas of the date written below.\nJAMBA, INC.\nFOCUS BRANDS INC.\nBy:\n/s/ David Pace\nBy: /s/ Sarah Powell\nName: Dave Pace\nName: Sarah Powell\nTitle:\nCEO\nTitle: EVP, General Counsel & Secretary\nDate: March 30, 2018\nDate: March 29, 2018 58bb4bcceda75d910f8c87563aeedec7.pdf effective_date jurisdiction party EX-10 .2 3 a13-15982 _1ex10d2.htm EX-10.2\nExhibit 10.2\nEMPLOYMENT NON-COMPETE , NON -SOLICIT AND CONFIDENTIALITY AGREEMENT\nThis Employment Non-Compete, Non-Solicit and Confidentiality Agreement (“Agreement”) is entered into between Citi Trends, Inc. ( “Company”), and Ivy Council (“Employee”), effective as of the 1st day of May, 2013.\nFor and in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree:\n1.\nEmployment; Scope of Services. Company shall employ Employee, and Employee shall be employed by Company, as Executive Vice President, Human Resources (“EVPHR”). Employee shall use his/her best efforts\nand shall devote his/her full time, attention, knowledge and skills to the faithful performance of his/her duties and responsibilities as a Company employee. Employee shall have such authority and such other duties and responsibilities as\nassigned by the Chief Executive Officer. Employee shall comply with Company’s policies and procedures, shall conduct him/herself as an ethical business professional, and shall comply with federal, state and local laws.\n2.\nAt-Will Employment. Nothing in this Agreement alters the at-will employment relationship between Employee and Company. Employment with Company is “at-will” which means that either Employee or Company\nmay terminate the employment relationship at any time, with or without notice, with or without cause. The date of Employee’s cessation of employment for any reason is the “Separation Date.”\n3.\nConfidentiality.\n(a)\nEmployee acknowledges and agrees that (1) the retail sale of value-priced/off- price family apparel is an extremely competitive industry; (2) Company has an ongoing strategy for expansion of its business\nin the United States; (3) Company’s major competitors operate throughout the United States and some internationally; and (4) because of Employee’s position as EVPHR, he/she will have access to, knowledge of, and be entrusted with,\nhighly sensitive and competitive Confidential Information (as defined in subsection (b) below) of Company, including without limitation information regarding sales margins, purchasing and pricing strategies, marketing strategies,\nvendors and suppliers, plans for expansion and placement of stores, and also specific information about Company’s districts and stores, such as staffing, budgets, profits and the financial success of individual districts and stores.\n(b)\nAs used herein, “Confidential Information” means and includes any and all Company data and information in any form whatsoever (tangible or intangible) which: (1) relates to the business of Company,\nirrespective of whether the data or information constitutes a “trade secret” (as defined by applicable law); (2) is disclosed to Employee or which Employee obtains or becomes aware of as a consequence of Employee’s relationship with\nCompany; (3) has value to Company; and (4) is not generally known to Company’s competitors. “ Confidential Information” includes (but is not limited to) technical or sales data, formulas, patterns, compilations, programs, devices,\nmethods, techniques, drawings, processes, financial data and\n1\nstatements, financial plans and strategies, product plans, sales or advertising information and plans, marketing information and plans, pricing information, the identity or lists of employees, vendors and suppliers of Company, and\nconfidential or proprietary information of such employees, vendors and suppliers. Employee acknowledges and agrees that all Confidential Information is and remains the sole and exclusive property of Company.\n(c)\nEmployee agrees that he/she shall hold all Confidential Information in strictest confidence, and that he/she shall protect such Confidential Information from disclosure by or to others. Employee further\nagrees that he/she shall not at any time (except as authorized by Company in connection with Employee’s duties and responsibilities as an employee): (1) disclose, publish, transfer, or communicate Confidential Information to any\nperson or entity, other than authorized Company personnel; or (2) use or reproduce Confidential Information for personal benefit or for any purpose or reason other than furthering the legitimate business interest of Company within the\nscope of Employee’s duties with Company; or (3) remove or transfer any Confidential Information from Company’s premises or systems (by any method or means) except for use in Company’s business and consistent with Employee’s\nduties with the Company. The foregoing covenants and obligations are in addition to, and do not limit, any common law or statutory rights and/or protections afforded to Company.\n(d)\nEmployee acknowledges that Company has provided or will provide Employee with Company property, including without limitation, employee handbooks, policy manuals, price lists, financial reports, and\nvendor and supplier information, among other items. Upon the Separation Date, or upon the request of Company, Employee shall immediately deliver to Company all property belonging to Company, including without limitation, all\nConfidential Information and any property related to Company, whether in electronic or other format, as well as any copies thereof, then in Employee’s custody, control or possession. Upon the Separation Date, Employee shall provide\nCompany with a declaration certifying that all Confidential Information and any other Company property have been returned to Company, that Employee has not kept any copies of such items or distributed such items to any third party,\nand that Employee has otherwise complied with the terms of Section 3 of this Agreement.\n4.\nCovenant Not to Compete. Employee agrees that he/she will not, at any point during his/her employment with Company, work for or engage or participate in any business, enterprise, or endeavor that in any way\ncompetes with any aspect of Company’s business or that otherwise conflicts with Company’s interest. In addition, for a period of one (1) year following the Separation Date, and regardless of the reason for separation, Employee shall not,\nwithin the continental United States: (a) become employed by or work for a “Competitor” (as defined below) in any position or capacity involving duties and/or responsibilities which are the same as or substantially similar to any of the\nduties and/or responsibilities Employee had with and/or performed for Company; or (b) perform or provide any services which are the same as or substantially similar to any of the services which Employee performed or provided for the\nCompany, for or on behalf of any Competitor. For purposes of this Section 4, the term “Competitor” shall mean only the following businesses, commonly known as: Cato, TJX (including without limitation TJMAXX and Marshalls),\nBurlington Stores, and Ross Stores.\n2\n5.\nCovenant Not to Solicit. During Employee’s employment with Company, and for a period of eighteen (18) months following the Separation Date, and regardless of the reason for separation, Employee agrees not to\nsolicit any “Merchandise Vendors” (as defined below) for the purpose of obtaining merchandise and/or inventory for or on behalf of any “Competitor” (as defined in Section 4 of this Agreement). As used herein, “Merchandise Vendors”\nmeans and includes any person or entity who/that has been a vendor or supplier of merchandise and/or inventory to Company during the eighteen (18) months immediately preceding the Separation Date or to whom/which Company is\nactively soliciting for the provision of merchandise and/or inventory, and with whom/which Employee had “material contact.” For purposes of this agreement, “material contact” means that Employee either had access to confidential\ninformation regarding the Merchandise Vendor, or was directly involved in negotiations or retention of such Merchandise Vendor.\nEmployee specifically acknowledges and agrees that, as EVPHR, his/her duties include, without limitation, establishing purchasing and pricing strategies and policies, managing sales margins, involvement in establishing\nand maintaining vendor relationships, and having contact with and confidential and/or proprietary information regarding Merchandise Vendors. The non- solicitation restrictions set forth in this Section 5 are specifically limited to\nMerchandise Vendors with whom Employee had contact (whether personally, telephonically, or through written or electronic correspondence) during employment as EVPHR or about whom/which Employee had confidential or\nproprietary information because of his/her position with Company.\n6.\nCovenant Not to Recruit Personnel. During Employee’s employment with Company, and for a period of two (2) years following the Separation Date, and regardless of the reason for separation, Employee will not:\n(a) recruit or solicit to hire or assist others in recruiting or soliciting to hire, any employee of Company; or (b) cause or assist others in causing any employee of Company to terminate an employment relationship with Company.\n7.\nSeverability. If any provision of this Agreement is held invalid, illegal, or otherwise unenforceable, in whole or in part, the remaining provisions, and any partially enforceable provisions to the extent enforceable, shall\nbe binding and remain in full force and effect. Further, each particular prohibition or restriction set forth in any Section of this Agreement shall be deemed a severable unit, and if any court of competent jurisdiction determines that any\nportion of such prohibition or restriction is against the policy of the law in any respect, but such restraint, considered as a whole, is not so clearly unreasonable and overreaching in its terms as to be unconscionable, the court shall enforce\nso much of such restraint as is determined to be reasonably necessary to protect the legitimate interests of Company. Employee and Company expressly agree that, should any court of competent jurisdiction find or determine that any of\nthe covenants contained herein are overly-broad or otherwise unenforceable, the court may “blue- pencil,” modify, and/or reform any such covenant (in whole or in part) so as to cure the over- breadth or to otherwise render the covenant\nenforceable.\n8.\nSurvival of Covenants. All rights and covenants contained in Sections 3, 4, 5, and 6 of this Agreement, and all remedies relating thereto, shall survive the termination of this Agreement for any reason.\n3\n9.\nGoverning Law. All matters affecting this Agreement, including the validity thereof, are to be subject to, and interpreted and construed in accordance with, the laws of the State of Georgia applicable to contracts executed\nin and to be performed in that State.\n10.\nAcknowledgment of Reasonableness/Remedies/Enforcement.\n(a)\nEmployee acknowledges that: (1) Company has valid interests to protect pursuant to Sections 3, 4, 5, and 6 of this Agreement; (2) the breach of the provisions of Sections 3, 4, 5, or 6 of this Agreement\nwould result in irreparable injury and permanent damage to Company; and (3) such restrictions are reasonable and necessary to protect the interests of Company, are critical to the success of Company’s business, and do not cause undue\nhardship on Employee.\n(b)\nEmployee agrees that determining damages in the event of a breach of Sections 3, 4, 5, or 6 by Employee would be difficult and that money damages alone would be an inadequate remedy for the injuries\nand damages which would be suffered by Company from such breach. Therefore, Employee agrees that Company shall be entitled (in addition to any other remedies it may have under this Agreement, at law, or otherwise) to immediate\ninjunctive and other equitable relief to prevent or curtail any such breach by Employee. Employee and Company waive any requirement that a bond or any other security be posted. Nothing in this Agreement shall prohibit Company from\nseeking or recovering any legal or monetary damages to which it may be entitled if Employee breaches any provision in this Agreement.\n11.\nMiscellaneous. This Agreement constitutes the entire agreement between the parties and supersedes any and all prior contracts, agreements, or understandings between the parties which may have been entered into by\nCompany and Employee relating to the subject matter hereof. This Agreement may not be amended or modified in any manner except by an instrument in writing signed by both Company and Employee. The failure of either party to\nenforce at any time any of the provisions of this Agreement shall in no way be construed to be a waiver of any such provision or the right of such party thereafter to enforce each and every such provision. No waiver of any breach of this\nAgreement shall be held to be a waiver of any other or subsequent breach. All remedies are cumulative, including the right of either party to seek equitable relief in addition to money damages.\nEMPLOYEE ACKNOWLEDGES AND AGREES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND KNOWS AND UNDERSTANDS ITS CONTENTS, THAT HE/SHE ENTERS INTO THIS\nAGREEMENT KNOWINGLY AND VOLUNTARILY, AND THAT HE/SHE INDICATES HIS/HER CONSENT BY SIGNING THIS FINAL PAGE.\n(SIGNATURES TO FOLLOW ON NEXT PAGE)\n4\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal as of the day and year first above written.\nCiti Trends, Inc.\nEmployee Signature\nBy:\nEmployee Residence Address:\nR. Edward Anderson\nChairman and Chief Executive Officer\n5 EX-10.2 3 al3-15982_leX10d2.htm EX-10.2\nExhibith.2\nEMPLOYMENT NON-COMPETE, NON-SOLICIT AND CONFIDENTIALITY AGREEMENT\n \nThis Employment Non-Compete, Non-Solicit and Confidentiality Agreement ("A greement”) is entered into between Citi Trends, Inc. ("Company"), and Ivy Council (”Employee"), effective as of the lst day of May, 2013.\nFor and in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree:\n1. Employment Scope of Services Company shall employ Employee, and Employee shall be employed by Company, as Executive Vice President, Human Resources (”EV PHR"). Employee shall use his/her best efforts\nand shall devote his/her full time, attention, knowledge and skills to the faithful performance of his/her duties and responsibilities as a Company employee. Employee shall have such authority and such other duties and responsibilities as\nassigned by the Chief Executive Officer. Employee shall comply with Company's policies and procedures, shall conduct him/herself as an ethical business professional, and shall comply with federal, state and local laws.\n2. At—Will Employment. Nothing in this Agreement alters the at-will employment relationship between Employee and Company. Employment with Company is "at-will" which means that either Employee or Company\nmay terminate the employment relationship at any time, with or without notice, with or without cause. The date of Employee’s cessation of employment for any reason is the "Separation Date."\n3. Confidentialifl.\n(a) Employee acknowledges and agrees that (1) the retail sale of value-priced/off— price family apparel is an extremely competitive industry; (2) Company has an ongoing strategy for expansion of its business\nin the United States; (3) Company’s major competitors operate throughout the United States and some internationally,- and (4) because of Employee’s position as EV PHR, he/she will have access to, knowledge of, and be entrusted with,\nhighly sensitive and competitive Confidential Information (as defined in subsection (b) below) of Company, including without limimtion information regarding sales margins, purchasing and pricing strategies, marketing strategies,\nvendors and suppliers, plans for expansion and placement of stores, and also specific information about Company’s districts and stores, such as smffing, budgets, profits and the financial success of individual districts and stores.\n(b) As used herein, ”Confidential Information" means and includes any and all Company dam and information in any form whatsoever (tangible or intangible) which: (1) relates to the business of Company,\nirrespective of whether the data orinformation constitutes a "trade secret" (as defined by applicable law),- (2) is disclosed to Employee or which Employee obmins or becomes aware of as a consequence of Employee's relationship with\nCompany; (3) has value to Company; and (4) is not generally known to Company's competitors. ”Confidential Information" includes (but is not limited to) technical or sales data, formulas, patterns, compilations, programs, devices,\nmethods, techniques, drawings, processes, financial data and\nsmtements, financial plans and strategies, product plans, sales or advertising information and plans, marketing information and plans, pricing information, the identity or lists of employees, vendors and suppliers of Company, and\nconfidential or proprietary information of such employees, vendors and suppliers. Employee acknowledges and agrees that all Confidential Information is and remains the sole and exclusive property of Company.\n(c) Employee agrees that he/she shall hold all Confidential Information in strictest confidence, and that he/she shall protect such Confidential Information from disclosure by orto others. Employee further\nagrees that he/she shall not at any time (except as authorized by Company in connection with Employee' 5 duties and responsibilities as an employee): (1) disclose, publish, transfer, or communicate Confidential Information to any\nperson or entity, other than authorized Company personnel,- or (2) use or reproduce Confidential Information for personal benefit or for any purpose or reason other than furthering the legitimate business interest of Company within the\nscope of Employee' 5 duties with Company; or (3) remove or transfer any Confidential Information from Company's premises or systems (by any method or means) except for use in Company’s business and consistent with Employee’s\nduties with the Company. The foregoing covenants and obligations are in addition to, and do not limit, any common law or smtutory rights and/or protections afforded to Company.\n(d) Employee acknowledges that Company has provided or will provide Employee with Company property, including without limitation, employee handbooks, policy manuals, price lists, financial reports, and\nvendor and supplier information, among other items. Upon the Separation Date, or upon the request of Company, Employee shall immediately deliver to Company all property belonging to Company, including without limitation, all\nConfidential Information and any property related to Company, whether in electronic or other format, as well as any copies thereof, then in Employee's custody, control or possession. Upon the Separation Date, Employee shall provide\nCompany with a declaration certifying that all Confidential Information and any other Company property have been returned to Company, that Employee has not kept any copies of such items or distributed such items to any third party,\nand that Employee has otherwise complied with the terms of Section 3 of this Agreement.\n4. Covenant Not to Compete. Employee agrees that he/she will not, at any point during his/her employment with Company, work for or engage or participate in any business, enterprise, or endeavor that in any way\ncompetes with any aspect of Company' 5 business or that otherwise conflicts with Company's interest. In addition, for a period of one (1) year following the Separation Date, and regardless of the reason for separation, Employee shall not,\nwithin the continenml United States: (a) become employed by or work for a ”Competitor” (as defined below) in any position or capacity involving duties and/or responsibilities which are the same as or substantially similar to any of the\nduties and/or responsibilities Employee had with and/or performed for Company,- or (b) perform or provide any services which are the same as or substantially similar to any of the services which Employee performed or provided for the\nCompany, for or on behalf of any Competitor. For purposes of this Section 4, the term ”Competitor” shall mean only the following businesses, commonly known as: Cato, TJX (including without limitation TJMAXX and Marshalls),\nBurlington Stores, and Ross Stores.\n5. Covenant Not to Solicit. During Employee's employment with Company, and for a period of eighteen (18) months following the Separation Date, and regardless of the reason for separation, Employee agrees not to\nsolicit any "Merchandise Vendors" (as defined below) for the purpose of obtaining merchandise and/or inventory for or on behalf of any "Competitor” (as defined in Section 4 of this Agreement). As used herein, "Merchandise Vendors"\nmeans and includes any person or entity who/that has been a vendor or supplier of merchandise and/or inventory to Company during the eighteen (18) months immediately preceding the Separation Date or to whom/which Company is\nactively soliciting for the provision of merchandise and/orinventory, and with whom/which Employee had ”material contact." For purposes of this agreement, ”material conmct" means that Employee either had access to confidential\ninformation regarding the Merchandise Vendor, or was directly involved in negotiations or retention of such Merchandise Vendor.\nEmployee specifically acknowledges and agrees that, as EV PHR, his/her duties include, without limimtion, establishing purchasing and pricing strategies and policies, managing sales margins, involvement in esmblishing\nand maintaining vendor relationships, and having conmct with and confidential and/or proprietary information regarding Merchandise Vendors. The non— solicitation restrictions set forth in this Section 5 are specifically limited to\nMerchandise Vendors with whom Employee had contact (whether personally, telephonically, or through written or electronic correspondence) during employment as EV PHR or about whom/which Employee had confidential or\nproprietary information because of his/her position with Company.\n6. Covenant Not to Recruit Personnel. During Employee's employment with Company, and for a period of two (2) years following the Separation Date, and regardless of the reason for separation, Employee will not:\n(a) recruit or solicit to hire or assist others in recruiting or soliciting to hire, any employee of Company; or (b) cause or assist others in causing any employee of Company to terminate an employment relationship with Company.\n7. Severabilim. If any provision of this Agreement is held invalid, illegal, or otherwise unenforceable, in whole or in part, the remaining provisions, and any partially enforceable provisions to the extent enforceable, shall\nbe binding and remain in full force and effect Further, each particular prohibition or restriction set forth in any Section of this Agreement shall be deemed a severable unit, and if any court of competent jurisdiction determines that any\nportion of such prohibition or restriction is against the policy of the law in any respect, but such restraint, considered as a whole, is not so clearly unreasonable and overreaching in its terms as to be unconscionable, the court shall enforce\nso much of such restraint as is determined to be reasonably necessary to protect the legitimate interests of Company. Employee and Company expressly agree that, should any court of competent jurisdiction find or determine that any of\nthe covenants contained herein are overly-broad or otherwise unenforceable, the court may ”blue— pencil,” modify, and/or reform any such covenant (in whole or in part) so as to cure the over- breadth or to otherwise render the covenant\nenforceable\n8. Survival of Covenants. All rights and covenants contained in Sections 3, 4, 5, and 6 of this Agreement, and all remedies relating thereto, shall survive the termination of this Agreement for any reason.\n9. Governing Law. All matters affecting this Agreement, including the validity thereof, are to be subject to, and interpreted and construed in accordance with, the laws of the State of Georgia applicable to contracts executed\nin and to be performed in that State.\n10. Acknowledgment of Reasonableness/Remedies/Enforcement.\n(a) Employee acknowledges that: (1) Company has valid interests to protect pursuant to Sections 3, 4, 5, and 6 of this Agreement; (2) the breach of the provisions of Sections 3, 4, 5, or 6 of this Agreement\nwould result in irreparable injury and permanent damage to Company,- and (3) such restrictions are reasonable and necessary to protect the interests of Company, are critical to the success of Company’s business, and do not cause undue\nhardship on Employee.\n(b) Employee agrees that determining damages in the event of a breach of Sections 3, 4, 5, or 6 by Employee would be difficult and that money damages alone would be an inadequate remedy for the injuries\nand damages which would he suffered by Company from such breach. Therefore, Employee agrees that Company shall be entitled (in addition to any other remedies it may have under this Agreement, at law, or otherwise) to immediate\ninjunctive and other equitable relief to prevent or curmil any such breach by Employee. Employee and Company waive any requirement that a bond or any other security be posted. Nothing in this Agreement shall prohibit Company from\nseeking or recovering any legal or monetary damages to which it may be entitled if Employee breaches any provision in this Agreement.\n11. Miscellaneous. This Agreement constitutes the entire agreement between the parties and supersedes any and all prior contracts, agreements, or undersmndings between the parties which may have been entered into by\nCompany and Employee relating to the subject matter hereof. This Agreement may not be amended or modified in any manner except by an instrument in writing signed by both Company and Employee. The failure of either party to\nenforce at any time any of the provisions of this Agreement shall in no way be construed to be a waiver of any such provision or the right of such party thereafter to enforce each and every such provision. No waiver of any breach of this\nAgreement shall be held to be a waiver of any other or subsequent breach. All remedies are cumulative, including the right of either party to seek equitable relief in addition to money damages.\nEMPLOYEE ACKNOWLEDGES AND AGREES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND KNOWS AND UNDERSTANDS ITS CONTENTS, THAT HE/SHE ENTERS INTO THIS\nAGREEMENT KNOWINGLY AND VOLUNTARILY, AND THAT HE/SHE INDICATES HIS/HER CONSENT BY SIGNING THIS FINAL PAGE.\n[SIGNATURES TO FOLLOW ON NEXT PAGE)\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal as of the day and year first above written.\nCiti Trends, Inc.\nW\nBy: Employee Residence Address:\nR. Edwafifim—\nChairman and Chief Executive Officer EX-10.2 23a13-15982 lex10d2.htm EX-10.2\nExhibit 10.2\nEMPLOYMENT NON-COMPETE, NON-SOLICIT AND CONFIDENTIALITY AGREEMENT\nThis Employment Non-Compete, Non-Solicit and Confidentiality Agreement ("Agreement") is entered into between Citi Trends, Inc. ("Company"), and Ivy Council ("Employee"), effective as of the 1st day of May, 2013.\nFor and in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree:\n1.\nEmployment; Scope of Services Company shall employ Employee, and Employee shall be employed by Company, as Executive Vice President, Human Resources ("EVPHR"). Employee shall use his/her best efforts\nand shall devote his/her full time, attention, knowledge and skills to the faithful performance of his/her duties and responsibilities as a Company employee. Employee shall have such authority and such other duties and responsibilities as\nassigned by the Chief Executive Officer. Employee shall comply with Company's policies and procedures, shall conduct him/herself as an ethica business professional, and shall comply with federal, state and local laws.\n2.\nAt-Will Employment Nothing in this Agreement alters the at will employment relationship between Employee and Company. Employment with Company is at-will" which means that either Employee or Company\nmay terminate the employment relationship at any time, with or without notice, with or without cause. The date of Employee's cessation of employment for any reason is the "Separation Date."\n3.\nConfidentiality.\n(a)\nEmployee acknowledges and agrees that (1) the retail sale of value-priced/off- price family apparel is an extremely competitive industry; (2) Company has an ongoing strategy for expansion of its business\nin the United States; (3) Company's major competitors operate throughout the United States and some interationally; and (4) because of Employee's position as EVPHR he/she will have access to, knowledge of, and be entrusted with,\nhighly sensitive and competitive Confidential Information (as defined in subsection (b) below) of Company, including without limitation information regarding sales margins, purchasing and pricing strategies, marketing strategies,\nvendors and suppliers, plans for expansion and placement of stores, and also specific information about Company's districts and stores, such as staffing, budgets, profits and the financial success of individual districts and stores.\n(b)\nAs used herein, "Confidential Information" means and includes any and all Company data and information in any form whatsoever (tangible or intangible) which: (1) relates to the business of Company,\nirrespective of whether the data or information constitutes a "trade secret" (as defined by applicable law); (2) is disclosed to Employee or which Employee obtains or becomes aware of as a consequence of Employee's relationship with\nCompany; (3) has value to Company; and (4) is not generally known to Company's competitors. "Confidential Information" includes (but is not limited to) technical or sales data formulas, patterns, compilations, programs, devices,\nmethods, techniques, drawings, processes, financial data and\n1\nstatements, financial plans and strategies product plans, sales or advertising information and plans, marketing information and plans pricing information, the identity or lists of employees, vendors and suppliers of Company, and\nconfidential or proprietary information of such employees, vendors and suppliers. Employee acknowledges and agrees that all Confidential Information is and remains the sole and exclusive property of Company.\n(c)\nEmployee agrees that he/she shall hold all Confidential Information in strictest confidence and that he/she shall protect such Confidential Information from disclosure by or to others. Employee further\nagrees that he/she shall not at any time (except as authorized by Company in connection with Employee's duties and responsibilities as an employee): (1) disclose, publish, transfer, or communicate Confidential Information to any\nperson or entity, other than authorized Company personnel; or (2) use or reproduce Confidential Information for personal benefit or for any purpose or reason other than furthering the legitimate business interest of Company within\nthe\nscope\nof Employee's duties with Company; or (3) remove or transfer any Confidential Information from Company's premises or systems (by any method or means) except for use in Company's business and consistent with Employee's\nduties with the Company The foregoing covenants and obligations are in addition to, and do not limit, any common law or statutory rights and/or protections afforded to Company.\n(d)\nEmployee acknowledges that Company has provided or will provide Employee with Company property including without limitation, employee handbooks policy manuals, price lists, financial reports, and\nvendor and supplier information, among other items. Upon the Separation Date, or upon the request of Company, Employee shall immediately deliver to Company all property belonging to Company, including without limitation, all\nConfidential Information and any property related to Company, whether in electronic or other format, as well as any copies thereof, then in Employee's custody, control or possession. Upon the Separation Date, Employee shall provide\nCompany with a declaration certifying that all Confidential Information and any other Company property have been retumed to Company, that Employee has not kept any copies of such items or distributed such items to any third party,\nand that Employee has otherwise complied with the terms of Section 3 of this Agreement.\n4.\nCovenant Not to Compete Employee agrees that he/she will not, at any point during his/her employment with Company, work for or engage or participate in any business, enterprise, or endeavor that in any way\ncompetes with any aspect of Company's business or that otherwise conflicts with Company's interest. In addition, for a period of one (1) year following the Separation Date, and regardless of the reason for separation, Employee shall not,\nwithin the continental United States: (a) become employed by or work for a "Competitor" (as defined below) in any position or capacity involving duties and/or responsibilities which are the same as or substantially similar to any of the\nduties and/or responsibilities Employee had with and/or performed for Company; or (b) perform or provide any services which are the same as or substantially similar to any of the services which Employee performed or provided for the\nCompany, for or on behalf of any Competitor. For purposes of this Section 4, the term "Competitor" shall mean only the following businesses commonly known as: Cato, TJX (including without limitation TJMAXX and Marshalls),\nBurlington Stores, and Ross Stores.\n2\n5.\nCovenant Not to Solicit. During Employee's employment with Company, and for a period of eighteen (18) months following the Separation Date, and regardless of the reason for separation, Employee agrees not to\nsolicit any "Merchandise Vendors" (as defined below) for the purpose of obtaining merchandise and/or inventory for or on behalf of any "Competitor" (as defined in Section 4 of this Agreement). As used herein, "Merchandise Vendors"\nmeans and includes any person or entity who/that has been a vendor or supplier of merchandise and/or inventory to Company during the eighteen (18) months immediately preceding the Separation Date or to whom/which Company is\nactively soliciting for the provision of merchandise and/or inventory, and with whom/which Employee had "material contact." For purposes of this agreement, "material contact" means that Employee either had access to confidential\ninformation regarding the Merchandise Vendor, or was directly involved in negotiations or retention of such Merchandise Vendor.\nEmployee specifically acknowledges and agrees that, as PHR, his/her duties include, without limitation, establishing purchasing and pricing strategies and policies, managing sales margins, involvement in establishing\nand maintaining vendor relationships, and having contact with and confidential and/or proprietary information regarding Merchandise Vendors. The non- solicitation restrictions set forth in this Section 5 are specifically limited to\nMerchandise Vendors with whom Employee had contact (whether personally, telephonically, or through written or electronic correspondence) during employment as EVPHR or about whom/which Employee had confidential or\nproprietary information because of his/her position with Company.\n6.\nCovenant Not to Recruit Personnel. During Employee's employment with Company, and for a period of two (2) years following the Separation Date, and regardless of the reason for separation Employee will not:\n(a) recruit or solicit to hire or assist others in recruiting or soliciting to hire, any employee of Company; or (b) cause or assist others in causing any employee of Company to terminate an employment relationship with Company.\n7.\nSeverability If any provision of this A greemen is held invalid, illegal, or otherwise unenforceable, in whole or in part, the remaining provisions, and any partially enforceable provisions to the extent enforceable, shal\nbe\nbinding and remain in full force and effect Further, each particular prohibition or restriction set forth in any Section of this greement shall be deemed a severable unit, and if any court of competent jurisdiction determines that any\nportion of such prohibition or restriction is against the policy of the law in any respect, but such restraint, considered as a whole, is not so clearly unreasonable and overreaching in its terms as to be unconscionable, the court shall enforce\nso much of such restraint as is determined to be reasonably necessary to protec the legitimate interests of Company Employee and Company expressly agree that, should any court of competent jurisdiction find or determine that any of\nthe covenants contained herein are overly-broad or otherwise unenforceable, the court may "blue- pencil," modify, and/or reform any such covenant (in whole or in part) so as to cure the over- breadth or to otherwise render the covenant\nenforceable.\n8.\nSurvival of Covenants All rights and covenants contained in Sections 3, 4, 5, and 6 of this Agreement, and all remedies relating thereto, shall survive the termination of this A greement for any reason.\n3\n9.\nGoveming Law All matters affecting this Agreement, including the validity thereof are to be subject to, and interpreted and construed in accordance with, the laws of the State of Georgia applicable to contracts executed\nin and to be performed in that State.\n10.\nAcknowledgment of Reasonableness/Remedies/Enforcement.\n(a)\nEmployee acknowledges that: (1) Company has valid interests to protect pursuant to Sections 3, 4, 5, and 6 of this Agreement; (2) the breach of the provisions of Sections 3, 4, 5, or 6 of this Agreement\nwould resul in irreparable injury and permanent damage to Company; and (3) such restrictions are reasonable and necessary to protect the interests of Company, are critical to the success of Company's business, and do not cause undue\nhardship on Employee.\n(b)\nEmployee agrees that determining damages in the event of a breach of Sections 3, 4, 5, or 6 by Employee would be difficult and that money damages alone would be an inadequate remedy for the injuries\nand damages which would be suffered by Company from such breach Therefore, Employee agrees that Company shall be entitled (in addition to any other remedies it may have under this Agreement, at law, or otherwise) to immediate\ninjunctive and other equitable relief to prevent or curtai any such breach by Employee. Employee and Company waive any requirement that a bond or any other security be posted Nothing in this Agreement shall prohibit Company from\nseeking or recovering any legal or monetary damages to which it may be entitled if Employee breaches any provision in this Agreement.\n11.\nMiscellaneous. This Agreement constitutes the entire agreement between the parties and supersedes any and all prior contracts, agreements, or understandings between the parties which may have been entered into by\nCompany and Employee relating to the subject matter hereof. This Agreement may not be amended or modified in any manner except by an instrument in writing signed by both Company and Employee The failure of either party to\nenforce at any time any of the provisions of this A greement shall in no way be construed to be a waiver of any such provision or the right of such party thereafter to enforce each and every such provision. No waiver of any breach of this\nA\ngreement shall be held to be a waiver of any other or subsequent breach. Al remedies are cumulative, including the right of either party to seek equitable relief in addition to money damages.\nEMPLOYEE ACKNOWLEDGES AND AGREES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND KNOWS A AND UNDERSTANDS ITS CONTENTS, THAT HE/SHE ENTERS INTO THIS\nAGREEMENT KNOWINGLY AND VOLUNTARILY, AND THAT HE/SHE INDICATES HIS/HER CONSENT BY SIGNING THIS FINAL PAGE.\n(SIGNATURES TO FOLLOW ON NEXT PAGE)\n4\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal as of the day and year first above written.\nCiti Trends, Inc.\nEmproye signature\nBy\nEmployee Residence Address:\nR. Edward nderson\nChairman and Chief Executive Officer\n5 EX-10 .2 3 a13-15982 _1ex10d2.htm EX-10.2\nExhibit 10.2\nEMPLOYMENT NON-COMPETE , NON -SOLICIT AND CONFIDENTIALITY AGREEMENT\nThis Employment Non-Compete, Non-Solicit and Confidentiality Agreement (“Agreement”) is entered into between Citi Trends, Inc. ( “Company”), and Ivy Council (“Employee”), effective as of the 1st day of May, 2013.\nFor and in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree:\n1.\nEmployment; Scope of Services. Company shall employ Employee, and Employee shall be employed by Company, as Executive Vice President, Human Resources (“EVPHR”). Employee shall use his/her best efforts\nand shall devote his/her full time, attention, knowledge and skills to the faithful performance of his/her duties and responsibilities as a Company employee. Employee shall have such authority and such other duties and responsibilities as\nassigned by the Chief Executive Officer. Employee shall comply with Company’s policies and procedures, shall conduct him/herself as an ethical business professional, and shall comply with federal, state and local laws.\n2.\nAt-Will Employment. Nothing in this Agreement alters the at-will employment relationship between Employee and Company. Employment with Company is “at-will” which means that either Employee or Company\nmay terminate the employment relationship at any time, with or without notice, with or without cause. The date of Employee’s cessation of employment for any reason is the “Separation Date.”\n3.\nConfidentiality.\n(a)\nEmployee acknowledges and agrees that (1) the retail sale of value-priced/off- price family apparel is an extremely competitive industry; (2) Company has an ongoing strategy for expansion of its business\nin the United States; (3) Company’s major competitors operate throughout the United States and some internationally; and (4) because of Employee’s position as EVPHR, he/she will have access to, knowledge of, and be entrusted with,\nhighly sensitive and competitive Confidential Information (as defined in subsection (b) below) of Company, including without limitation information regarding sales margins, purchasing and pricing strategies, marketing strategies,\nvendors and suppliers, plans for expansion and placement of stores, and also specific information about Company’s districts and stores, such as staffing, budgets, profits and the financial success of individual districts and stores.\n(b)\nAs used herein, “Confidential Information” means and includes any and all Company data and information in any form whatsoever (tangible or intangible) which: (1) relates to the business of Company,\nirrespective of whether the data or information constitutes a “trade secret” (as defined by applicable law); (2) is disclosed to Employee or which Employee obtains or becomes aware of as a consequence of Employee’s relationship with\nCompany; (3) has value to Company; and (4) is not generally known to Company’s competitors. “ Confidential Information” includes (but is not limited to) technical or sales data, formulas, patterns, compilations, programs, devices,\nmethods, techniques, drawings, processes, financial data and\n1\nstatements, financial plans and strategies, product plans, sales or advertising information and plans, marketing information and plans, pricing information, the identity or lists of employees, vendors and suppliers of Company, and\nconfidential or proprietary information of such employees, vendors and suppliers. Employee acknowledges and agrees that all Confidential Information is and remains the sole and exclusive property of Company.\n(c)\nEmployee agrees that he/she shall hold all Confidential Information in strictest confidence, and that he/she shall protect such Confidential Information from disclosure by or to others. Employee further\nagrees that he/she shall not at any time (except as authorized by Company in connection with Employee’s duties and responsibilities as an employee): (1) disclose, publish, transfer, or communicate Confidential Information to any\nperson or entity, other than authorized Company personnel; or (2) use or reproduce Confidential Information for personal benefit or for any purpose or reason other than furthering the legitimate business interest of Company within the\nscope of Employee’s duties with Company; or (3) remove or transfer any Confidential Information from Company’s premises or systems (by any method or means) except for use in Company’s business and consistent with Employee’s\nduties with the Company. The foregoing covenants and obligations are in addition to, and do not limit, any common law or statutory rights and/or protections afforded to Company.\n(d)\nEmployee acknowledges that Company has provided or will provide Employee with Company property, including without limitation, employee handbooks, policy manuals, price lists, financial reports, and\nvendor and supplier information, among other items. Upon the Separation Date, or upon the request of Company, Employee shall immediately deliver to Company all property belonging to Company, including without limitation, all\nConfidential Information and any property related to Company, whether in electronic or other format, as well as any copies thereof, then in Employee’s custody, control or possession. Upon the Separation Date, Employee shall provide\nCompany with a declaration certifying that all Confidential Information and any other Company property have been returned to Company, that Employee has not kept any copies of such items or distributed such items to any third party,\nand that Employee has otherwise complied with the terms of Section 3 of this Agreement.\n4.\nCovenant Not to Compete. Employee agrees that he/she will not, at any point during his/her employment with Company, work for or engage or participate in any business, enterprise, or endeavor that in any way\ncompetes with any aspect of Company’s business or that otherwise conflicts with Company’s interest. In addition, for a period of one (1) year following the Separation Date, and regardless of the reason for separation, Employee shall not,\nwithin the continental United States: (a) become employed by or work for a “Competitor” (as defined below) in any position or capacity involving duties and/or responsibilities which are the same as or substantially similar to any of the\nduties and/or responsibilities Employee had with and/or performed for Company; or (b) perform or provide any services which are the same as or substantially similar to any of the services which Employee performed or provided for the\nCompany, for or on behalf of any Competitor. For purposes of this Section 4, the term “Competitor” shall mean only the following businesses, commonly known as: Cato, TJX (including without limitation TJMAXX and Marshalls),\nBurlington Stores, and Ross Stores.\n2\n5.\nCovenant Not to Solicit. During Employee’s employment with Company, and for a period of eighteen (18) months following the Separation Date, and regardless of the reason for separation, Employee agrees not to\nsolicit any “Merchandise Vendors” (as defined below) for the purpose of obtaining merchandise and/or inventory for or on behalf of any “Competitor” (as defined in Section 4 of this Agreement). As used herein, “Merchandise Vendors”\nmeans and includes any person or entity who/that has been a vendor or supplier of merchandise and/or inventory to Company during the eighteen (18) months immediately preceding the Separation Date or to whom/which Company is\nactively soliciting for the provision of merchandise and/or inventory, and with whom/which Employee had “material contact.” For purposes of this agreement, “material contact” means that Employee either had access to confidential\ninformation regarding the Merchandise Vendor, or was directly involved in negotiations or retention of such Merchandise Vendor.\nEmployee specifically acknowledges and agrees that, as EVPHR, his/her duties include, without limitation, establishing purchasing and pricing strategies and policies, managing sales margins, involvement in establishing\nand maintaining vendor relationships, and having contact with and confidential and/or proprietary information regarding Merchandise Vendors. The non- solicitation restrictions set forth in this Section 5 are specifically limited to\nMerchandise Vendors with whom Employee had contact (whether personally, telephonically, or through written or electronic correspondence) during employment as EVPHR or about whom/which Employee had confidential or\nproprietary information because of his/her position with Company.\n6.\nCovenant Not to Recruit Personnel. During Employee’s employment with Company, and for a period of two (2) years following the Separation Date, and regardless of the reason for separation, Employee will not:\n(a) recruit or solicit to hire or assist others in recruiting or soliciting to hire, any employee of Company; or (b) cause or assist others in causing any employee of Company to terminate an employment relationship with Company.\n7.\nSeverability. If any provision of this Agreement is held invalid, illegal, or otherwise unenforceable, in whole or in part, the remaining provisions, and any partially enforceable provisions to the extent enforceable, shall\nbe binding and remain in full force and effect. Further, each particular prohibition or restriction set forth in any Section of this Agreement shall be deemed a severable unit, and if any court of competent jurisdiction determines that any\nportion of such prohibition or restriction is against the policy of the law in any respect, but such restraint, considered as a whole, is not so clearly unreasonable and overreaching in its terms as to be unconscionable, the court shall enforce\nso much of such restraint as is determined to be reasonably necessary to protect the legitimate interests of Company. Employee and Company expressly agree that, should any court of competent jurisdiction find or determine that any of\nthe covenants contained herein are overly-broad or otherwise unenforceable, the court may “blue- pencil,” modify, and/or reform any such covenant (in whole or in part) so as to cure the over- breadth or to otherwise render the covenant\nenforceable.\n8.\nSurvival of Covenants. All rights and covenants contained in Sections 3, 4, 5, and 6 of this Agreement, and all remedies relating thereto, shall survive the termination of this Agreement for any reason.\n3\n9.\nGoverning Law. All matters affecting this Agreement, including the validity thereof, are to be subject to, and interpreted and construed in accordance with, the laws of the State of Georgia applicable to contracts executed\nin and to be performed in that State.\n10.\nAcknowledgment of Reasonableness/Remedies/Enforcement.\n(a)\nEmployee acknowledges that: (1) Company has valid interests to protect pursuant to Sections 3, 4, 5, and 6 of this Agreement; (2) the breach of the provisions of Sections 3, 4, 5, or 6 of this Agreement\nwould result in irreparable injury and permanent damage to Company; and (3) such restrictions are reasonable and necessary to protect the interests of Company, are critical to the success of Company’s business, and do not cause undue\nhardship on Employee.\n(b)\nEmployee agrees that determining damages in the event of a breach of Sections 3, 4, 5, or 6 by Employee would be difficult and that money damages alone would be an inadequate remedy for the injuries\nand damages which would be suffered by Company from such breach. Therefore, Employee agrees that Company shall be entitled (in addition to any other remedies it may have under this Agreement, at law, or otherwise) to immediate\ninjunctive and other equitable relief to prevent or curtail any such breach by Employee. Employee and Company waive any requirement that a bond or any other security be posted. Nothing in this Agreement shall prohibit Company from\nseeking or recovering any legal or monetary damages to which it may be entitled if Employee breaches any provision in this Agreement.\n11.\nMiscellaneous. This Agreement constitutes the entire agreement between the parties and supersedes any and all prior contracts, agreements, or understandings between the parties which may have been entered into by\nCompany and Employee relating to the subject matter hereof. This Agreement may not be amended or modified in any manner except by an instrument in writing signed by both Company and Employee. The failure of either party to\nenforce at any time any of the provisions of this Agreement shall in no way be construed to be a waiver of any such provision or the right of such party thereafter to enforce each and every such provision. No waiver of any breach of this\nAgreement shall be held to be a waiver of any other or subsequent breach. All remedies are cumulative, including the right of either party to seek equitable relief in addition to money damages.\nEMPLOYEE ACKNOWLEDGES AND AGREES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND KNOWS AND UNDERSTANDS ITS CONTENTS, THAT HE/SHE ENTERS INTO THIS\nAGREEMENT KNOWINGLY AND VOLUNTARILY, AND THAT HE/SHE INDICATES HIS/HER CONSENT BY SIGNING THIS FINAL PAGE.\n(SIGNATURES TO FOLLOW ON NEXT PAGE)\n4\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal as of the day and year first above written.\nCiti Trends, Inc.\nEmployee Signature\nBy:\nEmployee Residence Address:\nR. Edward Anderson\nChairman and Chief Executive Officer\n5 5a67c4370c9b6da69651a2f80c7b7f8d.pdf effective_date jurisdiction party term 28\nAnnex E\nNDA\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (“Agreement”) made and entered into this 3 day of July 2005, by and between Common Sense\nLtd., a company organized under the laws of Israel (“Common Sense”) and Synova Healthcare, Inc., a company organized under the laws of the\nState of Delaware with offices at 1400 N. Providence Road, Suite 601, Media, PA 19063, USA (the “Recipient”).\nWITNESSETH\nWHEREAS the parties may enter into discussions regarding a potential business relationship; and\nWHEREAS Common Sense is prepared to disclose to the Recipient certain information relating to Common Sense, which Recipient is to\nreceive solely in order to efficiently conduct the negotiations between the parties; and\nWHEREAS the Parties wish to agree regarding the terms and conditions under which Common Sense is prepared to disclose to the Recipient\nthe Confidential Information (as defined below).\nNOW, THEREFORE, IT IS HEREBY AGREED BY THE PARTIES AS FOLLOWS:\n1. DEFINITIONS.\n1.1. The term “Confidential Information” shall include and mean any and all information, data, diagrams and know-how programs furnished at\nany time by Common Sense to Recipient and Associates, whether in oral, written, graphic or machine-readable form, and which is confidential\nor proprietary in nature or expressed or designated by Common Sense to be proprietary or confidential, whether or not owned or developed by\nCommon Sense, including but not limited to current or projected components, software, hardware, technical and other data, research material,\nBiological and Chemical materials, inventions, discoveries, drawings, plans, concepts, procedures, ideas, diagrams, marketing plans,\nbrochures, photographs, processes, test equipment, test data, specifications, operational data, financial data, methods and techniques.\nNotwithstanding any of the above said, the following shall not be considered Confidential Information: (a) information that was in the public\ndomain at the time it was disclosed other than as a result of a breach by Recipient; (b) information that can be demonstrated by documentary\nevidence to have been known to Recipient at the time of disclosure with no obligation of confidentiality or limitation on use towards Common\nSense; and (c) information that becomes known to Recipient from a source other than Common Sense and its Associates, as demonstrated by\nappropriate documentation, without breach of any obligation of confidence by Recipient or by the party disclosing such information to\nRecipient.\n29\n1.2. The term “Associate” shall mean, as to each party, such party’s agents, representatives, advisors, employees, directors or officers.\n2. NON -DISCLOSURE .\n2.1. General. Recipient acknowledges that the Confidential Information of Common Sense contains valuable trade and technical secrets of\nCommon Sense. Recipient shall not copy (in whole or in part), sell, assign, lease, license, disclose, give or otherwise transfer the Confidential\nInformation or any copy thereof to any third party or otherwise use the Confidential Information other than for the purpose intended under this\nAgreement. Recipient will not alter, modify, disassemble, reverse engineer or de-compile any software or other materials (in any form) or\ndocuments embodying Confidential Information of Common Sense which may be furnished to Recipient, without the express prior written\nconsent of Common Sense. Recipient may disclose the Confidential Information only to its Associates to have a “need to know” such\nConfidential Information in order to enable Recipient to use such Confidential Information for the purpose intended under this Agreement and\nare legally bound not to use or disclose such Confidential Information for any other purpose. Without limiting any other provision hereof,\nRecipient will take all reasonable measures to ensure that any of its Associates receiving Confidential Information of Common Sense shall\ncomply with all of the provisions of this Agreement as if each of them were a party hereto, and hereby assumes full responsibility for such\ncompliance by its Associates. Recipient shall treat Common Sense’s Confidential Information with the same degree of confidentiality as it\nkeeps its own Confidential Information, but in all events no less than a reasonable degree of confidentiality. Recipient shall safeguard any and\nall copies of Common Sense’s Confidential Information against unauthorized disclosure, shall not tamper with, bypass or alter its security\nfeatures or attempt to do so, and shall take all reasonable steps to ensure that the provisions of this Agreement are not violated by any person\nunder Recipient control or in Recipient service. Recipient shall not use the Confidential Information for any purpose other than the purpose set\nforth in this Agreement.\n2.2. Exception. Disclosure of Confidential Information by Recipient if and only to the extent it is compelled to do so by final judicial or\nadministrative order or decree, shall not be deemed a breach hereunder. Recipient shall notify Common Sense immediately after demand for\ndisclosure was presented to it, and shall assist Common Sense, to reasonable extent and upon reimbursement of reasonable expenses, in\nobjecting to such demand.\n3. PROPRIETARY NATURE.\n3.1. Ownership. All Confidential Information is and shall remain the property of Common Sense. The parties acknowledge that all Confidential\nInformation is the sole property of Common Sense and that Recipient shall not acquire any proprietary interest in the Confidential Information.\n3.2. Intellectual Property. Recipient acknowledges that the Confidential Information was designed, developed or otherwise obtained at great\nexpense over lengthy periods of time, and that the Confidential Information is secret, confidential, unique and essential to the business of\nCommon Sense and constitutes the exclusive property and trade secret of Common Sense. All\n30\napplicable rights to mask works, topographies, patents, copyrights, trademarks and trade secrets with respect to the Confidential Information of\nCommon Sense are retained exclusively by Common Sense.\n3.3. Disclaimer. Common Sense makes no representation or warranty as to accuracy, completeness, condition, suitability, or performance of the\nConfidential Information, and Common Sense shall have no liability whatsoever to Recipient resulting from its use of the Confidential\nInformation. Nothing herein shall be construed as creating any obligation on Common Sense to disclose any Confidential Information or to\nenter into any agreement with Recipient on a commercial or any other basis.\n3.4. Acknowledgement. AmniocheckTM Common Sense acknowledges that Recipient is in the process of developing a product known as\nAmniocheckTM. Nothing contained in this agreement shall be deemed to limit, restrict or prohibit the Recipient from developing, marketing,\nmanufacturing and selling Amniocheck or any products derived thereunder.\n4. Return of Confidential Information. Recipient will return all of the Confidential Information in written or other tangible form, including any\ncopies made, to Common Sense together with certification that any other copies or notes or summaries (to the extent including the Confidential\nInformation) have been destroyed, promptly upon the request of Common Sense.\n5. Term and Termination. The provisions of this Agreement shall remain in full force and effect for a period of five (5) years. The provisions of\nSections 1 through 5 of this Agreement shall survive any termination.\n6. Injunctive Relief. The parties acknowledges that Common Sense will be irreparably harmed if Recipient obligations under this Agreement are\nnot specifically enforced and that Common Sense would not have an adequate remedy at law in the event of an actual or threatened violation\nby Recipient of its obligations. Therefore, in addition to all other remedies it may have, Common Sense shall be entitled to an injunction or any\nappropriate decree of specific performance for any actual or threatened violations or breaches by Recipient or Recipient’s employees or agents\nwithout the necessity of Common Sense showing actual damages or that monetary damages would not afford an adequate remedy. Recipient\nshall be directly liable for any and all reasonable attorney’s fees incurred by the Common Sense to enforce this Agreement against Recipient in\nthe courts of component jurisdiction.\n7. Assignment. Recipient shall not assign or otherwise transfer any of its rights or obligations under this Agreement to any third party without\nthe prior written consent of Common Sense.\n8. No Waiver. Failure by a party to enforce any provisions of this Agreement at any time shall in no manner affect the right of that party at a later\ntime to enforce any provision of this Agreement.\n9. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.\n31\n10. Severability. In the event that any word, phrase, clause, sentence or other provision herein shall violate any applicable statute, ordinance or\nrule of law in any jurisdiction which governs this Agreement, such provisions shall be effective to the extent of such violation without\ninvalidating any other provision herein.\n11. Entire Agreement. This Agreement supersedes all previous understandings or agreements between the parties and incorporates the entire\nagreement of the parties with respect to the receipt and use of the Confidential Information. This Agreement may only be amended by a\nwriting of subsequent date that is signed by both parties.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth above.\nCommon Sense Ltd.\n[...]\nBy: /s/ Illegible\nBy: /s/ Stephen E. King\nName:\nName: Stephen E. King\nTitle: CEO\nTitle: CEO 28\nAnnex E\nNDA\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (“Agreement”) made and entered into this 3 day of July 2005, by and between Common Sense\nLtd., a company organized under the laws of Israel (“Common Sense”) and Synova Healthcare, Inc., a company organized under the laws of the State of Delaware with offices at 1400 N. Providence Road, Suite 601, Media, PA 19063, USA (the “Recipient™). WITNESSETH\nWHEREAS the parties may enter into discussions regarding a potential business relationship; and\nWHEREAS Common Sense is prepared to disclose to the Recipient certain information relating to Common Sense, which Recipient is to\nreceive solely in order to efficiently conduct the negotiations between the parties; and WHEREAS the Parties wish to agree regarding the terms and conditions under which Common Sense is prepared to disclose to the Recipient\nthe Confidential Information (as defined below). NOW, THEREFORE, IT IS HEREBY AGREED BY THE PARTIES AS FOLLOWS:\nDEFINITIONS.\nThe term “Confidential Information” shall include and mean any and all information, data, diagrams and know-how programs furnished at\nany time by Common Sense to Recipient and Associates, whether in oral, written, graphic or machine-readable form, and which is confidential\nor proprietary in nature or expressed or designated by Common Sense to be proprietary or confidential, whether or not owned or developed by\nCommon Sense, including but not limited to current or projected components, software, hardware, technical and other data, research material,\nBiological and Chemical materials, inventions, discoveries, drawings, plans, concepts, procedures, ideas, diagrams, marketing plans,\nbrochures, photographs, processes, test equipment, test data, specifications, operational data, financial data, methods and techniques.\nNotwithstanding any of the above said, the following shall not be considered Confidential Information: (a) information that was in the public\ndomain at the time it was disclosed other than as a result of a breach by Recipient; (b) information that can be demonstrated by documentary\nevidence to have been known to Recipient at the time of disclosure with no obligation of confidentiality or limitation on use towards Common\nSense; and (c) information that becomes known to Recipient from a source other than Common Sense and its Associates, as demonstrated by\nappropriate documentation, without breach of any obligation of confidence by Recipient or by the party disclosing such information to\nRecipient.\n2.2. 3.2. 29\nThe term “Associate” shall mean, as to each party, such party’s agents, representatives, advisors, employees, directors or officers.\nNON-DISCLOSURE.\nGeneral. Recipient acknowledges that the Confidential Information of Common Sense contains valuable trade and technical secrets of\nCommon Sense. Recipient shall not copy (in whole or in part), sell, assign, lease, license, disclose, give or otherwise transfer the Confidential\nInformation or any copy thereof to any third party or otherwise use the Confidential Information other than for the purpose intended under this\nAgreement. Recipient will not alter, modify, disassemble, reverse engineer or de-compile any software or other materials (in any form) or\ndocuments embodying Confidential Information of Common Sense which may be furnished to Recipient, without the express prior written\nconsent of Common Sense. Recipient may disclose the Confidential Information only to its Associates to have a “need to know” such\nConfidential Information in order to enable Recipient to use such Confidential Information for the purpose intended under this Agreement and\nare legally bound not to use or disclose such Confidential Information for any other purpose. Without limiting any other provision hereof,\nRecipient will take all reasonable measures to ensure that any of its Associates receiving Confidential Information of Common Sense shall\ncomply with all of the provisions of this Agreement as if each of them were a party hereto, and hereby assumes full responsibility for such\ncompliance by its Associates. Recipient shall treat Common Sense’s Confidential Information with the same degree of confidentiality as it\nkeeps its own Confidential Information, but in all events no less than a reasonable degree of confidentiality. Recipient shall safeguard any and\nall copies of Common Sense’s Confidential Information against unauthorized disclosure, shall not tamper with, bypass or alter its security\nfeatures or attempt to do so, and shall take all reasonable steps to ensure that the provisions of this Agreement are not violated by any person\nunder Recipient control or in Recipient service. Recipient shall not use the Confidential Information for any purpose other than the purpose set\nforth in this Agreement.\nException. Disclosure of Confidential Information by Recipient if and only to the extent it is compelled to do so by final judicial or\nadministrative order or decree, shall not be deemed a breach hereunder. Recipient shall notify Common Sense immediately after demand for\ndisclosure was presented to it, and shall assist Common Sense, to reasonable extent and upon reimbursement of reasonable expenses, in\nobjecting to such demand.\nPROPRIETARY NATURE.\nOwnership. All Confidential Information is and shall remain the property of Common Sense. The parties acknowledge that all Confidential\nInformation is the sole property of Common Sense and that Recipient shall not acquire any proprietary interest in the Confidential Information.\nIntellectual Property. Recipient acknowledges that the Confidential Information was designed, developed or otherwise obtained at great\nexpense over lengthy periods of time, and that the Confidential Information is secret, confidential, unique and essential to the business of\nCommon Sense and constitutes the exclusive property and trade secret of Common Sense. All\n3.3. 3.4. 30\napplicable rights to mask works, topographies, patents, copyrights, trademarks and trade secrets with respect to the Confidential Information of\nCommon Sense are retained exclusively by Common Sense.\nDisclaimer. Common Sense makes no representation or warranty as to accuracy, completeness, condition, suitability, or performance of the\nConfidential Information, and Common Sense shall have no liability whatsoever to Recipient resulting from its use of the Confidential\nInformation. Nothing herein shall be construed as creating any obligation on Common Sense to disclose any Confidential Information or to\nenter into any agreement with Recipient on a commercial or any other basis.\nAcknowledgement. Amniocheck™ Common Sense acknowledges that Recipient is in the process of developing a product known as\nAmniocheck™. Nothing contained in this agreement shall be deemed to limit, restrict or prohibit the Recipient from developing, marketing,\nmanufacturing and selling Amniocheck or any products derived thereunder.\nReturn of Confidential Information. Recipient will return all of the Confidential Information in written or other tangible form, including any\ncopies made, to Common Sense together with certification that any other copies or notes or summaries (to the extent including the Confidential\nInformation) have been destroyed, promptly upon the request of Common Sense.\nTerm and Termination. The provisions of this Agreement shall remain in full force and effect for a period of five (5) years. The provisions of\nSections 1 through 5 of this Agreement shall survive any termination.\nInjunctive Relief. The parties acknowledges that Common Sense will be irreparably harmed if Recipient obligations under this Agreement are\nnot specifically enforced and that Common Sense would not have an adequate remedy at law in the event of an actual or threatened violation\nby Recipient of its obligations. Therefore, in addition to all other remedies it may have, Common Sense shall be entitled to an injunction or any\nappropriate decree of specific performance for any actual or threatened violations or breaches by Recipient or Recipient’s employees or agents\nwithout the necessity of Common Sense showing actual damages or that monetary damages would not afford an adequate remedy. Recipient\nshall be directly liable for any and all reasonable attorney’s fees incurred by the Common Sense to enforce this Agreement against Recipient in\nthe courts of component jurisdiction.\nAssignment. Recipient shall not assign or otherwise transfer any of its rights or obligations under this Agreement to any third party without\nthe prior written consent of Common Sense.\nNo Waiver. Failure by a party to enforce any provisions of this Agreement at any time shall in no manner affect the right of that party at a later\ntime to enforce any provision of this Agreement.\nGoverning Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.\n31\n10. Severability. In the event that any word, phrase, clause, sentence or other provision herein shall violate any applicable statute, ordinance or\nrule of law in any jurisdiction which governs this Agreement, such provisions shall be effective to the extent of such violation without\ninvalidating any other provision herein.\n11. Entire Agreement. This Agreement supersedes all previous understandings or agreements between the parties and incorporates the entire\nagreement of the parties with respect to the receipt and use of the Confidential Information. This Agreement may only be amended by a\nwriting of subsequent date that is signed by both parties.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth above.\nCommon Sense Ltd. [...]\nBy: /s/Illegible By: /s/ Stephen E. King\nName: Name: Stephen E. King\nTitle: CEO Title: CEO 28\nAnnex E\nNDA\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT ("Agreement") made and entered into this 3 day of July 2005, by and between Common Sense\nLtd., a company organized under the laws of Israel ("Common Sense") and Synova Healthcare, Inc., a company organized under the laws of the\nState of Delaware with offices at 1400 N. Providence Road, Suite 601, Media, PA 19063, USA (the "Recipient").\nWITNESSETH\nWHEREAS the parties may enter into discussions regarding a potential business relationship; and\nWHEREAS Common Sense is prepared to disclose to the Recipient certain information relating to Common Sense, which Recipient is to\nreceive solely in order to efficiently conduct the negotiations between the parties; and\nWHEREAS the Parties wish to agree regarding the terms and conditions under which Common Sense is prepared to disclose to the Recipient\nthe Confidential Information (as defined below).\nNOW, THEREFORE, IT IS HEREBY AGREED BY THE PARTIES AS FOLLOWS:\n1. DEFINITIONS.\n1.1. The term "Confidential Information" shall include and mean any and all information, data, diagrams and know-how programs furnished at\nany time by Common Sense to Recipient and Associates, whether in oral, written, graphic or machine-readable form, and which is confidentia\nor proprietary in nature or expressed or designated by Common Sense to be proprietary or confidential, whether or not owned or developed by\nCommon Sense, including but not limited to current or projected components, software, hardware, technical and other data, research material,\nBiological and Chemical materials, inventions, discoveries, drawings, plans, concepts, procedures, ideas, diagrams, marketing plans,\nbrochures, photographs, processes, test equipment, test data, specifications, operational data, financial data, methods and techniques.\nNotwithstanding any of the above said, the following shall not be considered Confidential Information: (a) information that was in the public\ndomain at the time it was disclosed other than as a result of a breach by Recipient; (b) information that can be demonstrated by documentary\nevidence to have been known to Recipient at the time of disclosure with no obligation of confidentiality or limitation on use towards Common\nSense; and (c) information that becomes known to Recipient from a source other than Common Sense and its Associates, as demonstrated by\nappropriate documentation, without breach of any obligation of confidence by Recipient or by the party disclosing such information to\nRecipient.\n29\n1.2. The term "Associate" shall mean, as to each party, such party's agents, representatives, advisors, employees, directors or officers.\n2. NON-DISCLOSURE.\n2.1. General. Recipient acknowledges that the Confidential Information of Common Sense contains valuable trade and technical secrets of\nCommon Sense. Recipient shall not copy (in whole or in part), sell, assign, lease, license, disclose, give or otherwise transfer the Confidential\nInformation or any copy thereof to any third party or otherwise use the Confidential Information other than for the purpose intended under this\nAgreement. Recipient will not alter, modify, disassemble, reverse engineer or de-compile any software or other materials (in any form) or\ndocuments embodying Confidential Information of Common Sense which may be furnished to Recipient, without the express prior written\nconsent of Common Sense. Recipient may disclose the Confidential Information only to its Associates to have a "need to know" such\nConfidential Information in order to enable Recipient to use such Confidential Information for the purpose intended under this Agreement and\nare legally bound not to use or disclose such Confidential Information for any other purpose. Without limiting any other provision hereof,\nRecipient will take all reasonable measures to ensure that any of its Associates receiving Confidential Information of Common Sense shall\ncomply with all of the provisions of this Agreement as if each of them were a party hereto, and hereby assumes full responsibility for such\ncompliance by its Associates. Recipient shall treat Common Sense's Confidential Information with the same degree of confidentiality as it\nkeeps its own Confidential Information, but in all events no less than a reasonable degree of confidentiality. Recipient shall safeguard any and\nall copies of Common Sense's Confidential Information against unauthorized disclosure, shall not tamper with, bypass or alter its security\nfeatures or attempt to do so, and shall take all reasonable steps to ensure that the provisions of this Agreement are not violated by any person\nunder Recipient control or in Recipient service. Recipient shall not use the Confidential Information for any purpose other than the purpose set\nforth in this Agreement.\n2.2. Exception. Disclosure of Confidential Information by Recipient if and only to the extent it is compelled to do so by final judicial or\nadministrative order or decree, shall not be deemed a breach hereunder. Recipient shall notify Common Sense immediately after demand for\ndisclosure was presented to it, and shall assist Common Sense, to reasonable extent and upon reimbursement of reasonable expenses, in\nobjecting to such demand.\n3.\nPROPRIETARY NATURE.\n3.1. Ownership. All Confidential Information is and shall remain the property of Common Sense. The parties acknowledge that all Confidential\nInformation is the sole property of Common Sense and that Recipient shall not acquire any proprietary interest in the Confidential Information.\n3.2. Intellectual Property. Recipient acknowledges that the Confidential Information was designed, developed or otherwise obtained at great\nexpense over lengthy periods of time, and that the Confidential Information is secret, confidential, unique and essential to the business of\nCommon Sense and constitutes the exclusive property and trade secret of Common Sense. All\n30\napplicable rights to mask works, topographies, patents, copyrights, trademarks and trade secrets with respect to the Confidential Information of\nCommon Sense are retained exclusively by Common Sense.\n3.3. Disclaimer. Common Sense makes no representation or warranty as to accuracy, completeness, condition, suitability, or performance of the\nConfidential Information, and Common Sense shall have no liability whatsoever to Recipient resulting from its use of the Confidential\nInformation. Nothing herein shall be construed as creating any obligation on Common Sense to disclose any Confidential Information or\nto\nenter into any agreement with Recipient on a commercial or any other basis.\n3.4. Acknowledgement. AmniocheckT Common Sense acknowledges that Recipient is in the process of developing a product known as\nAmniocheckTN Nothing contained in this agreement shall be deemed to limit, restrict or prohibit the Recipient from developing, marketing,\nmanufacturing and selling Amniocheck or any products derived thereunder.\n4.\nReturn\nof\nConfidential\nInformation.\nRecipient\nwill\nreturn\nall\nof\nthe\nConfidential\nInformation\nin\nwritten\nor\nother\ntangible\nform,\nincluding\nany\ncopies made, to Common Sense together with certification that any other copies or notes or summaries (to the extent including the Confidential\nInformation) have been destroyed, promptly upon the request of Common Sense.\n5. Term and Termination. The provisions of this Agreement shall remain in full force and effect for a period of five (5) years. The provisions of\nSections 1 through 5 of this Agreement shall survive any termination.\n6.\nInjunctive Relief. The parties acknowledges that Common Sense will be irreparably harmed if Recipient obligations under this Agreement are\nnot specifically enforced and that Common Sense would not have an adequate remedy at law in the event of an actual or threatened violation\nby Recipient of its obligations. Therefore, in addition to all other remedies it may have, Common Sense shall be entitled to an injunction or any\nappropriate decree of specific performance for any actual or threatened violations or breaches by Recipient or Recipient's employees or agents\nwithout the necessity of Common Sense showing actual damages or that monetary damages would not afford an adequate remedy. Recipient\nshall be directly liable for any and all reasonable attorney's fees incurred by the Common Sense to enforce this Agreement against Recipient\nin\nthe courts of component jurisdiction.\n7.\nAssignment. Recipient shall not assign or otherwise transfer any of its rights or obligations under this Agreement to any third party without\nthe prior written consent of Common Sense.\n8.\nNo Waiver. Failure by a party to enforce any provisions of this Agreement at any time shall in no manner affect the right of that party at a later\ntime to enforce any provision of this Agreement.\n9.\nGoverning Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.\n31\n10.\nSeverability. In the event that any word, phrase, clause, sentence or other provision herein shall violate any applicable statute, ordinance or\nrule of law in any jurisdiction which governs this Agreement, such provisions shall be effective to the extent of such violation without\ninvalidating any other provision herein.\n11.\nEntire Agreement This Agreement supersedes all previous understandings or agreements between the parties and incorporates the entire\nagreement of the parties with respect to the receipt and use of the Confidential Information. This Agreement may only be amended by a\nwriting of subsequent date that is signed by both parties.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth above.\nCommon Sense Ltd.\n[...]\nBy:\n/s/ Illegible\nBy:\n/s/ Stephen E. King\nName:\nName: Stephen E. King\nTitle: CEO\nTitle: CEO 28\nAnnex E\nNDA\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (“Agreement”) made and entered into this 3 day of July 2005, by and between Common Sense\nLtd., a company organized under the laws of Israel (“Common Sense”) and Synova Healthcare, Inc., a company organized under the laws of the\nState of Delaware with offices at 1400 N. Providence Road, Suite 601, Media, PA 19063, USA (the “Recipient”).\nWITNESSETH\nWHEREAS the parties may enter into discussions regarding a potential business relationship; and\nWHEREAS Common Sense is prepared to disclose to the Recipient certain information relating to Common Sense, which Recipient is to\nreceive solely in order to efficiently conduct the negotiations between the parties; and\nWHEREAS the Parties wish to agree regarding the terms and conditions under which Common Sense is prepared to disclose to the Recipient\nthe Confidential Information (as defined below).\nNOW, THEREFORE, IT IS HEREBY AGREED BY THE PARTIES AS FOLLOWS:\n1. DEFINITIONS.\n1.1. The term “Confidential Information” shall include and mean any and all information, data, diagrams and know-how programs furnished at\nany time by Common Sense to Recipient and Associates, whether in oral, written, graphic or machine-readable form, and which is confidential\nor proprietary in nature or expressed or designated by Common Sense to be proprietary or confidential, whether or not owned or developed by\nCommon Sense, including but not limited to current or projected components, software, hardware, technical and other data, research material,\nBiological and Chemical materials, inventions, discoveries, drawings, plans, concepts, procedures, ideas, diagrams, marketing plans,\nbrochures, photographs, processes, test equipment, test data, specifications, operational data, financial data, methods and techniques.\nNotwithstanding any of the above said, the following shall not be considered Confidential Information: (a) information that was in the public\ndomain at the time it was disclosed other than as a result of a breach by Recipient; (b) information that can be demonstrated by documentary\nevidence to have been known to Recipient at the time of disclosure with no obligation of confidentiality or limitation on use towards Common\nSense; and (c) information that becomes known to Recipient from a source other than Common Sense and its Associates, as demonstrated by\nappropriate documentation, without breach of any obligation of confidence by Recipient or by the party disclosing such information to\nRecipient.\n29\n1.2. The term “Associate” shall mean, as to each party, such party’s agents, representatives, advisors, employees, directors or officers.\n2. NON -DISCLOSURE .\n2.1. General. Recipient acknowledges that the Confidential Information of Common Sense contains valuable trade and technical secrets of\nCommon Sense. Recipient shall not copy (in whole or in part), sell, assign, lease, license, disclose, give or otherwise transfer the Confidential\nInformation or any copy thereof to any third party or otherwise use the Confidential Information other than for the purpose intended under this\nAgreement. Recipient will not alter, modify, disassemble, reverse engineer or de-compile any software or other materials (in any form) or\ndocuments embodying Confidential Information of Common Sense which may be furnished to Recipient, without the express prior written\nconsent of Common Sense. Recipient may disclose the Confidential Information only to its Associates to have a “need to know” such\nConfidential Information in order to enable Recipient to use such Confidential Information for the purpose intended under this Agreement and\nare legally bound not to use or disclose such Confidential Information for any other purpose. Without limiting any other provision hereof,\nRecipient will take all reasonable measures to ensure that any of its Associates receiving Confidential Information of Common Sense shall\ncomply with all of the provisions of this Agreement as if each of them were a party hereto, and hereby assumes full responsibility for such\ncompliance by its Associates. Recipient shall treat Common Sense’s Confidential Information with the same degree of confidentiality as it\nkeeps its own Confidential Information, but in all events no less than a reasonable degree of confidentiality. Recipient shall safeguard any and\nall copies of Common Sense’s Confidential Information against unauthorized disclosure, shall not tamper with, bypass or alter its security\nfeatures or attempt to do so, and shall take all reasonable steps to ensure that the provisions of this Agreement are not violated by any person\nunder Recipient control or in Recipient service. Recipient shall not use the Confidential Information for any purpose other than the purpose set\nforth in this Agreement.\n2.2. Exception. Disclosure of Confidential Information by Recipient if and only to the extent it is compelled to do so by final judicial or\nadministrative order or decree, shall not be deemed a breach hereunder. Recipient shall notify Common Sense immediately after demand for\ndisclosure was presented to it, and shall assist Common Sense, to reasonable extent and upon reimbursement of reasonable expenses, in\nobjecting to such demand.\n3. PROPRIETARY NATURE.\n3.1. Ownership. All Confidential Information is and shall remain the property of Common Sense. The parties acknowledge that all Confidential\nInformation is the sole property of Common Sense and that Recipient shall not acquire any proprietary interest in the Confidential Information.\n3.2. Intellectual Property. Recipient acknowledges that the Confidential Information was designed, developed or otherwise obtained at great\nexpense over lengthy periods of time, and that the Confidential Information is secret, confidential, unique and essential to the business of\nCommon Sense and constitutes the exclusive property and trade secret of Common Sense. All\n30\napplicable rights to mask works, topographies, patents, copyrights, trademarks and trade secrets with respect to the Confidential Information of\nCommon Sense are retained exclusively by Common Sense.\n3.3. Disclaimer. Common Sense makes no representation or warranty as to accuracy, completeness, condition, suitability, or performance of the\nConfidential Information, and Common Sense shall have no liability whatsoever to Recipient resulting from its use of the Confidential\nInformation. Nothing herein shall be construed as creating any obligation on Common Sense to disclose any Confidential Information or to\nenter into any agreement with Recipient on a commercial or any other basis.\n3.4. Acknowledgement. AmniocheckTM Common Sense acknowledges that Recipient is in the process of developing a product known as\nAmniocheckTM. Nothing contained in this agreement shall be deemed to limit, restrict or prohibit the Recipient from developing, marketing,\nmanufacturing and selling Amniocheck or any products derived thereunder.\n4. Return of Confidential Information. Recipient will return all of the Confidential Information in written or other tangible form, including any\ncopies made, to Common Sense together with certification that any other copies or notes or summaries (to the extent including the Confidential\nInformation) have been destroyed, promptly upon the request of Common Sense.\n5. Term and Termination. The provisions of this Agreement shall remain in full force and effect for a period of five (5) years. The provisions of\nSections 1 through 5 of this Agreement shall survive any termination.\n6. Injunctive Relief. The parties acknowledges that Common Sense will be irreparably harmed if Recipient obligations under this Agreement are\nnot specifically enforced and that Common Sense would not have an adequate remedy at law in the event of an actual or threatened violation\nby Recipient of its obligations. Therefore, in addition to all other remedies it may have, Common Sense shall be entitled to an injunction or any\nappropriate decree of specific performance for any actual or threatened violations or breaches by Recipient or Recipient’s employees or agents\nwithout the necessity of Common Sense showing actual damages or that monetary damages would not afford an adequate remedy. Recipient\nshall be directly liable for any and all reasonable attorney’s fees incurred by the Common Sense to enforce this Agreement against Recipient in\nthe courts of component jurisdiction.\n7. Assignment. Recipient shall not assign or otherwise transfer any of its rights or obligations under this Agreement to any third party without\nthe prior written consent of Common Sense.\n8. No Waiver. Failure by a party to enforce any provisions of this Agreement at any time shall in no manner affect the right of that party at a later\ntime to enforce any provision of this Agreement.\n9. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.\n31\n10. Severability. In the event that any word, phrase, clause, sentence or other provision herein shall violate any applicable statute, ordinance or\nrule of law in any jurisdiction which governs this Agreement, such provisions shall be effective to the extent of such violation without\ninvalidating any other provision herein.\n11. Entire Agreement. This Agreement supersedes all previous understandings or agreements between the parties and incorporates the entire\nagreement of the parties with respect to the receipt and use of the Confidential Information. This Agreement may only be amended by a\nwriting of subsequent date that is signed by both parties.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth above.\nCommon Sense Ltd.\n[...]\nBy: /s/ Illegible\nBy: /s/ Stephen E. King\nName:\nName: Stephen E. King\nTitle: CEO\nTitle: CEO 5be1ea607c7763ae42c61e9fc0fa2ec1.pdf effective_date jurisdiction party term EX-10.6 7 d937352dex106.htm EX-10.6\nExhibit 10.6\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis confidentiality and non-disclosure agreement (the “Agreement”) is made and entered into as of June 23, 2015, by and between Consac,\nLLC (the “Recipient”), and MusclePharm Corporation, a Nevada corporation (the “Company”). Each of the Recipient and the Company is\nsometimes referred to herein as a “Party” and collectively as “Parties.”\nWHEREAS, the Recipient is desirous of obtaining certain Confidential Information from the Company in connection with a potential\ntransaction between the Company and the Recipient (a “Possible Transaction”);\nWHEREAS, in connection with Recipient’s evaluation of a Possible Transaction the Company may disclose certain confidential\ninformation concerning the Company and/or its affiliates to the Recipient; and\nWHEREAS, the Recipient agrees that it shall use such Confidential Information and refrain from disclosing or making use of such\nConfidential Information, all in accordance with the terms of this Agreement.\nNOW THEREFORE, the parties mutually agree to the following:\n1. Recipient shall be responsible for the conduct of its Representatives and Affiliate Entities (as such terms are hereinafter defined) regarding\nthe confidentiality and use of the Confidential Information. The Recipient shall only disclose the Confidential Information to its directors,\nofficers or employees or parties consented to by the Company pursuant to Section 5 who are bound by confidentiality obligations that are at\nleast as restrictive as the terms of this Agreement and who have a reasonable need to review the Confidential Information in connection\nwith the consideration, evaluation and negotiation of a Possible Transaction (collectively, the “Representatives”). Any disclosure of\nConfidential Information shall not be deemed to grant a license or right to the Recipient or any Representative or Affiliated Entities to use\nConfidential Information for any purpose other than as set forth herein.\n2. For the purpose of this Agreement, “Confidential Information” shall mean any and all commercial, business, financial, technical and/or\nother information relating to the Company and/or its affiliates, including, but not limited to, financial data, statistical information,\nmarketing, and/or product development plans or procedures, trade secrets, real estate information, personnel information and/or other data\ndisclosed to the Recipient pursuant hereto in connection with a Possible Transaction or otherwise, without regard to whether such\ninformation was communicated in writing, orally, visually or by other means, together with all analyses, compilations, studies, or other\ndocuments prepared by Recipient or its Representatives which reflect or are generated from such information.\n3. Subject to the terms and provisions of this Agreement, Recipient agrees to hold in confidence and not to reveal, report, publish, disclose or\ntransfer, directly or indirectly, any of the Confidential Information of the Company to any third party or use any of the Company’s\nConfidential Information for any purpose at any time except as\nConfidential\nnecessary to evaluate a Possible Transaction. The Recipient, its Representatives and Affiliated Entities shall use the Confidential\nInformation in accordance with the terms of this Agreement. All Confidential Information shall remain the sole property of the Company.\nAt any time upon the request of the Company, Recipient will promptly return to the Company or destroy all Confidential Information (in\nany media), including any copies as well as all materials (in any media) which contain or embody Confidential Information, and, with\nrespect to abstracts or summaries of Confidential Information that Recipient may have made, Recipient will destroy such abstracts or\nsummaries and will provide a written declaration from an authorized officer certifying that it has done so. Notwithstanding the preceding\nsentence, Recipient (i) may retain one copy of any portion of the Confidential Information that Recipient has been advised by their counsel\nis required to retain by applicable law, rule or regulation or their internal compliance policies and (ii) shall not be obligated to erase\nConfidential Information contained in an electronic archiving or backup system operating in the ordinary course of business. In the case of\neach of (i) and (ii) in the preceding sentence, Recipient, its Representatives and Affiliate Entitles will continue to keep the Confidential\nInformation confidential in accordance with the terms of this Agreement. Notwithstanding the foregoing, the destruction of any\nConfidential Information does not affect any of the Recipient’s obligations hereunder and the Confidential Information, whether or not\ndestroyed, will remain subject to the restrictions herein. In connection with the obligations under this Agreement, Recipient shall maintain\nthe confidentiality of the Confidential Information with at least the same degree of care that it uses to protect its own confidential\ninformation, but no less than a reasonable degree of care under the circumstances.\n4. Except as may be required by law, including securities laws, without the prior written consent of the other Party, neither Party shall, and\neach Party shall direct its Representatives not to, disclose to any person or entity (other than its Representatives) (a) that any investigations,\ndiscussions or negotiations are taking place (including, without limitation, concerning a Possible Transaction involving the Company and\nthe Recipient), (b) that Recipient has requested or received any Confidential Information, (c) the terms of this Agreement, or (d) any of the\nterms, conditions, negotiations, discussions or other facts (including, without limitation, with respect to a Possible Transaction, including\nthe status thereof).\n5. Without the prior written consent of the Company, Recipient shall not, and shall direct its Representatives and Affiliate Entitles (as defined\nin Section 9 below) not to disclose any Confidential Information to any third parties (including, without limitation, in connection with a\nPossible Transaction, or otherwise discuss a Possible Transaction with, or disclose a Possible Transaction to, any third parties. Recipient\nrepresents and covenants that Recipient does not have (and will not enter into) (a) any agreement or understanding with any other person\nthat such person will refrain from bidding on or participating in a Possible Transaction with the Company, (b) any agreement pursuant to\nwhich any other person will have a right to participate in a Possible Transaction with the Company involving the Recipient if the Recipient\nis successful in consummating a Possible Transaction with the Company or (c) any agreement or arrangement with any potential debt or\nequity financing sources which may reasonably be expected to limit such financing source from acting as a financing source for any other\npotential acquirer or participant in a Possible Transaction with the Company.\nConfidential\n2\n6. Due to the unique confidential, proprietary, unique and valuable nature of the Confidential Information, Recipient acknowledges and agrees\nthat in the event Recipient fails to comply with its obligations hereunder, that monetary damages may be inadequate to compensate the\nCompany. Accordingly, Recipient agrees that the Company shall, in addition to any other remedies available to it at law or in equity, be\nentitled to seek injunctive relief to enforce the terms of Sections 2, 3, 4 and 5 of this Agreement.\n7. Notwithstanding anything herein to the contrary, Confidential Information shall not include any information which (a) at the time of its\ndisclosure or thereafter is generally available to or known to the public other than as a result of a disclosure by the Recipient or its\nrepresentatives in breach of this Agreement, (b) was or becomes available to the Recipient, on a non-confidential basis from a source other\nthan the Company, (c) is shown by written dated records (or any other evidence or documentary media) to have been independently\nacquired or developed by Recipient without breaching this Agreement, (d) is shown by written dated records (or any other evidence or\ndocumentary media) to have been lawfully in the possession of or known to the Recipient prior to disclosure by the Company, or\n(e) Recipient is compelled by court or government action pursuant to applicable law to disclose, provided, however, that Recipient gives\nthe Company prompt notice thereof so that the Company may seek a protective order or other appropriate remedy.\n8. The Recipient acknowledges that the Company is a publicly traded company. As such, the Recipient agrees not to use any material non-\npublic Confidential Information in connection with the purchase or sale of the securities of the Company. The Recipient further\nacknowledges that such use may constitute a violation of securities laws.\n9. The Recipient acknowledges that, in its examination of the Confidential Information, it will be given access to material non-public\ninformation concerning the Company. In consideration of receipt of that information, for a period of the later of (A) twelve months from\nthe date of this Agreement and (B) the date on which the 2016 annual meeting of the Company’s shareholders is held (which shall be held\nno later than December 31, 2016) (the “Standstill Period”) the Recipient on behalf of itself, its parent and subsidiary entities and entities\nunder common control therewith (the “Affiliate Entities”), hereby agrees that each of the Recipient and the Affiliated Entities shall not,\nother than as authorized in writing by the Company: (i) in any manner acquire, whether from the Company or a third party, directly or\nindirectly (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as\namended (“Exchange Act”)) of any additional voting securities or other equity interests in the Company or all or substantially all of the\nassets of the Company; (ii) enter into, directly or indirectly, any merger or business combination involving the Company; (iii) solicit\nproxies or consents, directly or indirectly, or become a “participant” in any “solicitation” (as such terms are defined in Regulation 14A\nunder the Exchange Act) of proxies or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting\nsecurities of the Company; (iv) with respect to any voting securities of the Company, (a) form or join any “group” (within the meaning of\nSection 13(d)(3) of the Exchange Act) after the date of this agreement that would be required under the Exchange Act to file a statement on\nSchedule 13D or Schedule 13G if such group had not previously filed such statement or otherwise require an amendment to such statement\nif such a\nConfidential\n3\nstatement has been filed prior to the date hereof or (b) in the event that the Recipient or any of the Recipient’s Affiliated Entities have\nformed or joined any such group prior to the date hereof, participate in or benefit from any additional action by such group or any member\nthereof after the date of this agreement that (1) would constitute a violation of this paragraph if undertaken by the Recipient alone or\n(2) would require such group to file a statement on Schedule 13D or Schedule 13G if such group had not previously filed such a statement\nor otherwise require an amendment to such statement if such a statement has been filed prior to the date hereof; (v) otherwise act, alone or\nin concert with others, to seek to control the management, Board of Directors or policies of the Company; (vi) initiate any communications\nconcerning the Confidential Information or a Possible Transaction with any employee of the Company (other than Brad Pyatt, Chief\nExecutive Officer of the Company) except as contemplated by this Agreement; (vii) publicly disclose any intention, plan or arrangement\ninconsistent with any of the foregoing; (viii) advise, assist or encourage any other person in connection with any of the foregoing or\n(ix) other than as authorized be this letter agreement or any definitive agreement relating to a Possible Transaction executed by the Parties\nor their affiliates, take any action that would legally require the Company to make a public announcement regarding a business\ncombination, merger, sale of all or substantially all of its assets, liquidation or other extraordinary corporate transaction involving the\nCompany.\nNotwithstanding any of the foregoing, Recipient shall be permitted to purchase securities currently held by Wynnefield Capital, Inc. and its\naffiliates.\n10. This Agreement shall be binding upon and inure to the benefit of the parties, their subsidiaries, and their respective successors. No\nassignment or modification of this Agreement may be made by any party without the prior written consent of the other party, which consent\nmay be granted or denied in such other party’s sole discretion. This Agreement shall not create any obligation on any party hereof to enter\ninto any agreement between the Company and the Recipient or any other agreement or to negotiate or discuss any of the foregoing. In\naddition, the furnishing of Confidential Information hereunder shall not obligate either Party to (i) enter into any further agreement or\nnegotiation with the other or (ii) to continue any negotiations, in good faith or provide any information or (iii) to refrain from entering into\nan agreement or negotiation with any other person, including without limitation any other person engaged in the same or a similar line of\nbusiness as the other party hereto. Neither party shall have any liability to the other resulting from the use of or reliance upon the\nConfidential Information.\n11. This Agreement contains the full and complete understanding of the parties with respect to the subject matter hereof and supersedes all\nprior representations and understandings regarding the subject matter hereof, whether oral or written. Failure to exercise or delay in\nexercising any remedy hereunder shall not be deemed a waiver thereof. Each party represents that this Agreement is being signed by a duly\nauthorized officer.\nConfidential\n4\n12. This Agreement may be signed in counterparts, each of which shall for all purposes be deemed an original, and together shall constitute\none and the same instrument. This Agreement shall expire twelve months from the effective date hereof. Notwithstanding the foregoing,\nand without altering the rights and obligations of the parties with respect to any Confidential Information provided prior thereto, each Party\nreserves the right at any time to notify the other Party in writing that it no longer desires to provide or receive additional Confidential\nInformation under this Agreement, and no Confidential Information provided after such notice is received shall be considered Confidential\nInformation hereunder. Any claim for breach of this Agreement must be made and filed within twelve months of actual notice of the\nalleged breach.\n13. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by and construed\nand enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof.\nEach party agrees that all legal proceedings concerning the interpretations, enforcement and defense of a Possible Transactions\ncontemplated by this Agreement (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders,\nemployees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby\nirrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, borough of Manhattan for\nthe adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein\n(including with respect to the enforcement of this Agreement), and hereby irrevocably waives, and agrees not to assert in any suit, action or\nproceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper\nor is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process\nbeing served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with\nevidence of delivery) to such party at the address in effect for notices to it (as shown on the signature page hereto and as may be changed\nfrom time to time by notice to the other Party) under this Agreement and agrees that such service shall constitute good and sufficient\nservice of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other\nmanner permitted by law. The Parties waive any right to a jury trial and any right to consolidation with a cause of action involving a jury\ntrial. A Party shall use reasonable commercial efforts to mitigate or reduce any damages or claims relating to a breach of this Agreement by\nthe other Party.\n14. If Recipient or its Representatives disclose any information concerning Recipient’s or its Representatives’ business or operations to the\nCompany or its Representatives, the Parties agree that (i) any information so disclosed shall constitute “Confidential Information”\nhereunder, and (ii) Recipient and its Representatives shall have mutual mirror reciprocal rights and benefits to the rights and benefits of the\nCompany provided by the foregoing provisions of this letter agreement.\nConfidential\n5\nIn witness whereof the undersigned have executed this Agreement as of the date first written above.\nMusclepharm\nBy:\nLOGO\nName: Brad Pyatt\nTitle: Chairman and CEO\nDate: June 23, 2015\nWith an address of:\n4721 Ironton Street, Building A\nDenver, CO 80239\nConsac, LLC\nBy:\nLOGO\nName: Ryan Drexler\nTitle: President\nDate: June 23, 2015\nWith an address of:\n525 Chalette Drive\nBeverly Hills, California 90211\nConfidential\n6 EX-10.6 7 d937352dex106.htm EX-10.6\nExhibit 10.6\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis confidentiality and non-disclosure agreement (the “Agreement”) is made and entered into as of June 23, 2015, by and between Consac,\nLLC (the “Recipient”), and MusclePharm Corporation, a Nevada corporation (the “Company”). Each of the Recipient and the Company is\nsometimes referred to herein as a “Party” and collectively as “Parties.”\nWHEREAS, the Recipient is desirous of obtaining certain Confidential Information from the Company in connection with a potential\ntransaction between the Company and the Recipient (a “Possible Transaction”);\nWHEREAS, in connection with Recipient’s evaluation of a Possible Transaction the Company may disclose certain confidential\ninformation concerning the Company and/or its affiliates to the Recipient; and\nWHEREAS, the Recipient agrees that it shall use such Confidential Information and refrain from disclosing or making use of such\nConfidential Information, all in accordance with the terms of this Agreement.\nNOW THEREFORE, the parties mutually agree to the following:\n1. Recipient shall be responsible for the conduct of its Representatives and Affiliate Entities (as such terms are hereinafter defined) regarding\nthe confidentiality and use of the Confidential Information. The Recipient shall only disclose the Confidential Information to its directors,\nofficers or employees or parties consented to by the Company pursuant to Section 5 who are bound by confidentiality obligations that are at\nleast as restrictive as the terms of this Agreement and who have a reasonable need to review the Confidential Information in connection\nwith the consideration, evaluation and negotiation of a Possible Transaction (collectively, the “Representatives”). Any disclosure of\nConfidential Information shall not be deemed to grant a license or right to the Recipient or any Representative or Affiliated Entities to use\nConfidential Information for any purpose other than as set forth herein.\n2. For the purpose of this Agreement, “Confidential Information” shall mean any and all commercial, business, financial, technical and/or\nother information relating to the Company and/or its affiliates, including, but not limited to, financial data, statistical information,\nmarketing, and/or product development plans or procedures, trade secrets, real estate information, personnel information and/or other data\ndisclosed to the Recipient pursuant hereto in connection with a Possible Transaction or otherwise, without regard to whether such\ninformation was communicated in writing, orally, visually or by other means, together with all analyses, compilations, studies, or other\ndocuments prepared by Recipient or its Representatives which reflect or are generated from such information.\n3. Subject to the terms and provisions of this Agreement, Recipient agrees to hold in confidence and not to reveal, report, publish, disclose or\ntransfer, directly or indirectly, any of the Confidential Information of the Company to any third party or use any of the Company’s\nConfidential Information for any purpose at any time except as\nConfidential\nnecessary to evaluate a Possible Transaction. The Recipient, its Representatives and Affiliated Entities shall use the Confidential\nInformation in accordance with the terms of this Agreement. All Confidential Information shall remain the sole property of the Company.\nAt any time upon the request of the Company, Recipient will promptly return to the Company or destroy all Confidential Information (in\nany media), including any copies as well as all materials (in any media) which contain or embody Confidential Information, and, with\nrespect to abstracts or summaries of Confidential Information that Recipient may have made, Recipient will destroy such abstracts or\nsummaries and will provide a written declaration from an authorized officer certifying that it has done so. Notwithstanding the preceding\nsentence, Recipient (i) may retain one copy of any portion of the Confidential Information that Recipient has been advised by their counsel\nis required to retain by applicable law, rule or regulation or their internal compliance policies and (ii) shall not be obligated to erase\nConfidential Information contained in an electronic archiving or backup system operating in the ordinary course of business. In the case of\neach of (i) and (ii) in the preceding sentence, Recipient, its Representatives and Affiliate Entitles will continue to keep the Confidential\nInformation confidential in accordance with the terms of this Agreement. Notwithstanding the foregoing, the destruction of any\nConfidential Information does not affect any of the Recipient’s obligations hereunder and the Confidential Information, whether or not\ndestroyed, will remain subject to the restrictions herein. In connection with the obligations under this Agreement, Recipient shall maintain\nthe confidentiality of the Confidential Information with at least the same degree of care that it uses to protect its own confidential\ninformation, but no less than a reasonable degree of care under the circumstances.\nExcept as may be required by law, including securities laws, without the prior written consent of the other Party, neither Party shall, and\neach Party shall direct its Representatives not to, disclose to any person or entity (other than its Representatives) (a) that any investigations,\ndiscussions or negotiations are taking place (including, without limitation, concerning a Possible Transaction involving the Company and\nthe Recipient), (b) that Recipient has requested or received any Confidential Information, (c) the terms of this Agreement, or (d) any of the\nterms, conditions, negotiations, discussions or other facts (including, without limitation, with respect to a Possible Transaction, including\nthe status thereof).\nWithout the prior written consent of the Company, Recipient shall not, and shall direct its Representatives and Affiliate Entitles (as defined\nin Section 9 below) not to disclose any Confidential Information to any third parties (including, without limitation, in connection with a\nPossible Transaction, or otherwise discuss a Possible Transaction with, or disclose a Possible Transaction to, any third parties. Recipient\nrepresents and covenants that Recipient does not have (and will not enter into) (a) any agreement or understanding with any other person\nthat such person will refrain from bidding on or participating in a Possible Transaction with the Company, (b) any agreement pursuant to\nwhich any other person will have a right to participate in a Possible Transaction with the Company involving the Recipient if the Recipient\nis successful in consummating a Possible Transaction with the Company or (c) any agreement or arrangement with any potential debt or\nequity financing sources which may reasonably be expected to limit such financing source from acting as a financing source for any other\npotential acquirer or participant in a Possible Transaction with the Company.\nConfidential\nDue to the unique confidential, proprietary, unique and valuable nature of the Confidential Information, Recipient acknowledges and agrees\nthat in the event Recipient fails to comply with its obligations hereunder, that monetary damages may be inadequate to compensate the\nCompany. Accordingly, Recipient agrees that the Company shall, in addition to any other remedies available to it at law or in equity, be\nentitled to seek injunctive relief to enforce the terms of Sections 2, 3, 4 and 5 of this Agreement.\nNotwithstanding anything herein to the contrary, Confidential Information shall not include any information which (a) at the time of its\ndisclosure or thereafter is generally available to or known to the public other than as a result of a disclosure by the Recipient or its\nrepresentatives in breach of this Agreement, (b) was or becomes available to the Recipient, on a non-confidential basis from a source other\nthan the Company, (c) is shown by written dated records (or any other evidence or documentary media) to have been independently\nacquired or developed by Recipient without breaching this Agreement, (d) is shown by written dated records (or any other evidence or\ndocumentary media) to have been lawfully in the possession of or known to the Recipient prior to disclosure by the Company, or\n(e) Recipient is compelled by court or government action pursuant to applicable law to disclose, provided, however, that Recipient gives\nthe Company prompt notice thereof so that the Company may seek a protective order or other appropriate remedy.\nThe Recipient acknowledges that the Company is a publicly traded company. As such, the Recipient agrees not to use any material non-\npublic Confidential Information in connection with the purchase or sale of the securities of the Company. The Recipient further\nacknowledges that such use may constitute a violation of securities laws.\nThe Recipient acknowledges that, in its examination of the Confidential Information, it will be given access to material non-public\ninformation concerning the Company. In consideration of receipt of that information, for a period of the later of (A) twelve months from\nthe date of this Agreement and (B) the date on which the 2016 annual meeting of the Company’s shareholders is held (which shall be held\nno later than December 31, 2016) (the “Standstill Period”) the Recipient on behalf of itself, its parent and subsidiary entities and entities\nunder common control therewith (the “Affiliate Entities”), hereby agrees that each of the Recipient and the Affiliated Entities shall not,\nother than as authorized in writing by the Company: (i) in any manner acquire, whether from the Company or a third party, directly or\nindirectly (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as\namended (“Exchange Act”)) of any additional voting securities or other equity interests in the Company or all or substantially all of the\nassets of the Companys; (ii) enter into, directly or indirectly, any merger or business combination involving the Company; (iii) solicit\nproxies or consents, directly or indirectly, or become a “participant” in any “solicitation” (as such terms are defined in Regulation 14A\nunder the Exchange Act) of proxies or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting\nsecurities of the Company; (iv) with respect to any voting securities of the Company, (a) form or join any “group” (within the meaning of\nSection 13(d)(3) of the Exchange Act) after the date of this agreement that would be required under the Exchange Act to file a statement on\nSchedule 13D or Schedule 13G if such group had not previously filed such statement or otherwise require an amendment to such statement\nif such a\nConfidential\n10. 11. statement has been filed prior to the date hereof or (b) in the event that the Recipient or any of the Recipient’s Affiliated Entities have\nformed or joined any such group prior to the date hereof, participate in or benefit from any additional action by such group or any member\nthereof after the date of this agreement that (1) would constitute a violation of this paragraph if undertaken by the Recipient alone or\n(2) would require such group to file a statement on Schedule 13D or Schedule 13G if such group had not previously filed such a statement\nor otherwise require an amendment to such statement if such a statement has been filed prior to the date hereof; (v) otherwise act, alone or\nin concert with others, to seek to control the management, Board of Directors or policies of the Company; (vi) initiate any communications\nconcerning the Confidential Information or a Possible Transaction with any employee of the Company (other than Brad Pyatt, Chief\nExecutive Officer of the Company) except as contemplated by this Agreement; (vii) publicly disclose any intention, plan or arrangement\ninconsistent with any of the foregoing; (viii) advise, assist or encourage any other person in connection with any of the foregoing or\n(ix) other than as authorized be this letter agreement or any definitive agreement relating to a Possible Transaction executed by the Parties\nor their affiliates, take any action that would legally require the Company to make a public announcement regarding a business\ncombination, merger, sale of all or substantially all of its assets, liquidation or other extraordinary corporate transaction involving the\nCompany.\nNotwithstanding any of the foregoing, Recipient shall be permitted to purchase securities currently held by Wynnefield Capital, Inc. and its\naffiliates.\nThis Agreement shall be binding upon and inure to the benefit of the parties, their subsidiaries, and their respective successors. No\nassignment or modification of this Agreement may be made by any party without the prior written consent of the other party, which consent\nmay be granted or denied in such other party’s sole discretion. This Agreement shall not create any obligation on any party hereof to enter\ninto any agreement between the Company and the Recipient or any other agreement or to negotiate or discuss any of the foregoing. In\naddition, the furnishing of Confidential Information hereunder shall not obligate either Party to (i) enter into any further agreement or\nnegotiation with the other or (ii) to continue any negotiations, in good faith or provide any information or (iii) to refrain from entering into\nan agreement or negotiation with any other person, including without limitation any other person engaged in the same or a similar line of\nbusiness as the other party hereto. Neither party shall have any liability to the other resulting from the use of or reliance upon the\nConfidential Information.\nThis Agreement contains the full and complete understanding of the parties with respect to the subject matter hereof and supersedes all\nprior representations and understandings regarding the subject matter hereof, whether oral or written. Failure to exercise or delay in\nexercising any remedy hereunder shall not be deemed a waiver thereof. Each party represents that this Agreement is being signed by a duly\nauthorized officer.\nConfidential\n12. 13. 14. This Agreement may be signed in counterparts, each of which shall for all purposes be deemed an original, and together shall constitute\none and the same instrument. This Agreement shall expire twelve months from the effective date hereof. Notwithstanding the foregoing,\nand without altering the rights and obligations of the parties with respect to any Confidential Information provided prior thereto, each Party\nreserves the right at any time to notify the other Party in writing that it no longer desires to provide or receive additional Confidential\nInformation under this Agreement, and no Confidential Information provided after such notice is received shall be considered Confidential\nInformation hereunder. Any claim for breach of this Agreement must be made and filed within twelve months of actual notice of the\nalleged breach.\nAll questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by and construed\nand enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof.\nEach party agrees that all legal proceedings concerning the interpretations, enforcement and defense of a Possible Transactions\ncontemplated by this Agreement (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders,\nemployees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby\nirrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, borough of Manhattan for\nthe adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein\n(including with respect to the enforcement of this Agreement), and hereby irrevocably waives, and agrees not to assert in any suit, action or\nproceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper\nor is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process\nbeing served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with\nevidence of delivery) to such party at the address in effect for notices to it (as shown on the signature page hereto and as may be changed\nfrom time to time by notice to the other Party) under this Agreement and agrees that such service shall constitute good and sufficient\nservice of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other\nmanner permitted by law. The Parties waive any right to a jury trial and any right to consolidation with a cause of action involving a jury\ntrial. A Party shall use reasonable commercial efforts to mitigate or reduce any damages or claims relating to a breach of this Agreement by\nthe other Party.\nIf Recipient or its Representatives disclose any information concerning Recipient’s or its Representatives’ business or operations to the\nCompany or its Representatives, the Parties agree that (i) any information so disclosed shall constitute “Confidential Information”\nhereunder, and (ii) Recipient and its Representatives shall have mutual mirror reciprocal rights and benefits to the rights and benefits of the\nCompany provided by the foregoing provisions of this letter agreement.\nConfidential\nIn witness whereof the undersigned have executed this Agreement as of the date first written above. Confidential\nMusclepharm\nBy: ».LOGO\nName: Brad Pyatt\nTitle: Chairman and CEO\nDate: June 23, 2015\nWith an address of:\n4721 Ironton Street, Building A\nDenver, CO 80239\nConsac, LLC\nBy: e LOGO\nName: Ryan Drexler\nTitle: President\nDate: June 23, 2015\nWith an address of:\n525 Chalette Drive\nBeverly Hills, California 90211 EX-10.6 7 d937352dex106.htm EX-10.6\nExhibit 10.6\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis confidentiality and non-disclosure agreement (the "Agreement") is made and entered into as of June 23, 2015, by and between Consac,\nLLC (the "Recipient"), and MusclePharm Corporation, a Nevada corporation (the "Company"). Each of the Recipient and the Company is\nsometimes referred to herein as a "Party" and collectively as "Parties."\nWHEREAS, the Recipient is desirous of obtaining certain Confidential Information from the Company in connection with a potential\ntransaction between the Company and the Recipient (a "Possible Transaction");\nWHEREAS, in connection with Recipient's evaluation of a Possible Transaction the Company may disclose certain confidential\ninformation concerning the Company and/or its affiliates to the Recipient; and\nWHEREAS, the Recipient agrees that it shall use such Confidential Information and refrain from disclosing or making use of such\nConfidential Information, all in accordance with the terms of this Agreement.\nNOW THEREFORE, the parties mutually agree to the following:\n1.\nRecipient shall be responsible for the conduct of its Representatives and Affiliate Entities (as such terms are hereinafter defined) regarding\nthe confidentiality and use of the Confidential Information. The Recipient shall only disclose the Confidential Information to its directors,\nofficers or employees or parties consented to by the Company pursuant to Section 5 who are bound by confidentiality obligations that are\nat\nleast as restrictive as the terms of this Agreement and who have a reasonable need to review the Confidential Information in connection\nwith the consideration, evaluation and negotiation of a Possible Transaction (collectively, the "Representatives"). Any disclosure of\nConfidential Information shall not be deemed to grant a license or right to the Recipient or any Representative or Affiliated Entities to use\nConfidential Information for any purpose other than as set forth herein.\n2.\nFor the purpose of this Agreement, "Confidential Information" shall mean any and all commercial, business, financial, technical and/or\nother information relating to the Company and/or its affiliates, including, but not limited to, financial data, statistical information,\nmarketing, and/or product development plans or procedures, trade secrets, real estate information, personnel information and/or other data\ndisclosed to the Recipient pursuant hereto in connection with a Possible Transaction or otherwise, without regard to whether such\ninformation was communicated in writing, orally, visually or by other means, together with all analyses, compilations, studies, or other\ndocuments prepared by Recipient or its Representatives which reflect or are generated from such information.\n3.\nSubject to the terms and provisions of this Agreement, Recipient agrees to hold in confidence and not to reveal, report, publish, disclose or\ntransfer, directly or indirectly, any of the Confidential Information of the Company to any third party or use any of the Company's\nConfidential Information for any purpose at any time except as\nConfidential\nnecessary to evaluate a Possible Transaction. The Recipient, its Representatives and Affiliated Entities shall use the Confidential\nInformation in accordance with the terms of this Agreement. All Confidential Information shall remain the sole property of the Company.\nAt any time upon the request of the Company, Recipient will promptly return to the Company or destroy all Confidential Information (in\nany media), including any copies as well as all materials (in any media) which contain or embody Confidential Information, and, with\nrespect to abstracts or summaries of Confidential Information that Recipient may have made, Recipient will destroy such abstracts or\nsummaries and will provide a written declaration from an authorized officer certifying that it has done so. Notwithstanding the preceding\nsentence, Recipient (i) may retain one copy of any portion of the Confidential Information that Recipient has been advised by their counsel\nis required to retain by applicable law, rule or regulation or their internal compliance policies and (ii) shall not be obligated to erase\nConfidential Information contained in an electronic archiving or backup system operating in the ordinary course of business. In the case\nof\neach of (i) and (ii) in the preceding sentence, Recipient, its Representatives and Affiliate Entitles will continue to keep the Confidential\nInformation confidential in accordance with the terms of this Agreement. Notwithstanding the foregoing, the destruction of any\nConfidential Information does not affect any of the Recipient's obligations hereunder and the Confidential Information, whether or not\ndestroyed, will remain subject to the restrictions herein. In connection with the obligations under this Agreement, Recipient shall maintain\nthe confidentiality of the Confidential Information with at least the same degree of care that it uses to protect its own confidential\ninformation, but no less than a reasonable degree of care under the circumstances.\n4.\nExcept as may be required by law, including securities laws, without the prior written consent of the other Party, neither Party shall, and\neach Party shall direct its Representatives not to, disclose to any person or entity (other than its Representatives) (a) that any investigations,\ndiscussions or negotiations are taking place (including, without limitation, concerning a Possible Transaction involving the Company and\nthe Recipient), (b) that Recipient has requested or received any Confidential Information, (c) the terms of this Agreement, or (d) any of the\nterms, conditions, negotiations, discussions or other facts (including, without limitation, with respect to a Possible Transaction, including\nthe status thereof).\n5.\nWithout the prior written consent of the Company, Recipient shall not, and shall direct its Representatives and Affiliate Entitles (as defined\nin Section 9 below) not to disclose any Confidential Information to any third parties (including, without limitation, in connection with a\nPossible Transaction, or otherwise discuss a Possible Transaction with, or disclose a Possible Transaction to, any third parties. Recipient\nrepresents and covenants that Recipient does not have (and will not enter into) (a) any agreement or understanding with any other person\nthat such person will refrain from bidding on or participating in a Possible Transaction with the Company, (b) any agreement pursuant to\nwhich any other person will have a right to participate in a Possible Transaction with the Company involving the Recipient if the Recipient\nis successful in consummating a Possible Transaction with the Company or (c) any agreement or arrangement with any potential debt or\nequity financing sources which may reasonably be expected to limit such financing source from acting as a financing source for any other\npotential acquirer or participant in a Possible Transaction with the Company.\nConfidential\n2\n6.\nDue to the unique confidential, proprietary, unique and valuable nature of the Confidential Information, Recipient acknowledges and agrees\nthat in the event Recipient fails to comply with its obligations hereunder, that monetary damages may be inadequate to compensate the\nCompany. Accordingly, Recipient agrees that the Company shall, in addition to any other remedies available to it at law or in equity, be\nentitled to seek injunctive relief to enforce the terms of Sections 2, 3, 4 and 5 of this Agreement.\n7.\nNotwithstanding anything herein to the contrary, Confidential Information shall not include any information which (a) at the time of its\ndisclosure or thereafter is generally available to or known to the public other than as a result of a disclosure by the Recipient or its\nrepresentatives in breach of this Agreement, (b) was or becomes available to the Recipient, on a non-confidential basis from a source other\nthan the Company, (c) is shown by written dated records (or any other evidence or documentary media) to have been independently\nacquired or developed by Recipient without breaching this Agreement, (d) is shown by written dated records (or any other evidence or\ndocumentary media) to have been lawfully in the possession of or known to the Recipient prior to disclosure by the Company, or\n(e) Recipient is compelled by court or government action pursuant to applicable law to disclose, provided, however, that Recipient gives\nthe Company prompt notice thereof so that the Company may seek a protective order or other appropriate remedy.\n8.\nThe Recipient acknowledges that the Company is a publicly traded company. As such, the Recipient agrees not to use any material non-\npublic Confidential Information in connection with the purchase or sale of the securities of the Company. The Recipient further\nacknowledges that such use may constitute a violation of securities laws.\n9.\nThe Recipient acknowledges that, in its examination of the Confidential Information, it will be given access to material non-public\ninformation concerning the Company. In consideration of receipt of that information, for a period of the later of (A) twelve months from\nthe date of this Agreement and (B) the date on which the 2016 annual meeting of the Company's shareholders is held (which shall be held\nno\nlater than December 31, 2016) (the "Standstill Period") the Recipient on behalf of itself, its parent and subsidiary entities and entities\nunder common control therewith (the "Affiliate Entities"), hereby agrees that each of the Recipient and the Affiliated Entities shall not,\nother than as authorized in writing by the Company: (i) in any manner acquire, whether from the Company or a third party, directly or\nindirectly (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as\namended ("Exchange Act")) of any additional voting securities or other equity interests in the Company or all or substantially all of the\nassets of the Company; (ii) enter into, directly or indirectly, any merger or business combination involving the Company; (iii) solicit\nproxies or consents, directly or indirectly, or become a "participant" in any "solicitation" (as such terms are defined in Regulation 14A\nunder the Exchange Act) of proxies or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting\nsecurities of the Company; (iv) with respect to any voting securities of the Company, (a) form or join any "group" (within the meaning of\nSection 13(d)(3) of the Exchange Act) after the date of this agreement that would be required under the Exchange Act to file a statement on\nSchedule 13D or Schedule 13G if such group had not previously filed such statement or otherwise require an amendment to such statement\nif such a\nConfidential\n3\nstatement has been filed prior to the date hereof or (b) in the event that the Recipient or any of the Recipient's Affiliated Entities have\nformed or joined any such group prior to the date hereof, participate in or benefit from any additional action by such group or any member\nthereof after the date of this agreement that (1) would constitute a violation of this paragraph if undertaken by the Recipient alone or\n(2) would require such group to file a statement on Schedule 13D or Schedule 13G if such group had not previously filed such a statement\nor otherwise require an amendment to such statement if such a statement has been filed prior to the date hereof; (v) otherwise act, alone or\nin concert with others, to seek to control the management, Board of Directors or policies of the Company; (vi) initiate any communications\nconcerning the Confidential Information or a Possible Transaction with any employee of the Company (other than Brad Pyatt, Chief\nExecutive Officer of the Company) except as contemplated by this Agreement; (vii) publicly disclose any intention, plan or arrangement\ninconsistent with any of the foregoing; (viii) advise, assist or encourage any other person in connection with any of the foregoing or\n(ix) other than as authorized be this letter agreement or any definitive agreement relating to a Possible Transaction executed by the Parties\nor their affiliates, take any action that would legally require the Company to make a public announcement regarding a business\ncombination, merger, sale of all or substantially all of its assets, liquidation or other extraordinary corporate transaction involving the\nCompany.\nNotwithstanding any of the foregoing, Recipient shall be permitted to purchase securities currently held by Wynnefield Capital, Inc. and its\naffiliates.\n10. This Agreement shall be binding upon and inure to the benefit of the parties, their subsidiaries, and their respective successors. No\nassignment or modification of this Agreement may be made by any party without the prior written consent of the other party, which consent\nmay be granted or denied in such other party's sole discretion. This Agreement shall not create any obligation on any party hereof to enter\ninto any agreement between the Company and the Recipient or any other agreement or to negotiate or discuss any of the foregoing. In\naddition, the furnishing of Confidential Information hereunder shall not obligate either Party to (i) enter into any further agreement or\nnegotiation with the other or (ii) to continue any negotiations, in good faith or provide any information or (iii) to refrain from entering into\nan agreement or negotiation with any other person, including without limitation any other person engaged in the same or a similar line of\nbusiness as the other party hereto. Neither party shall have any liability to the other resulting from the use of or reliance upon the\nConfidential Information.\n11. This Agreement contains the full and complete understanding of the parties with respect to the subject matter hereof and supersedes all\nprior representations and understandings regarding the subject matter hereof, whether oral or written. Failure to exercise or delay in\nexercising any remedy hereunder shall not be deemed a waiver thereof. Each party represents that this Agreement is being signed by a duly\nauthorized officer.\nConfidential\n4\n12. This Agreement may be signed in counterparts, each of which shall for all purposes be deemed an original, and together shall constitute\none and the same instrument. This Agreement shall expire twelve months from the effective date hereof. Notwithstanding the foregoing,\nand without altering the rights and obligations of the parties with respect to any Confidential Information provided prior thereto, each Party\nreserves the right at any time to notify the other Party in writing that it no longer desires to provide or receive additional Confidential\nInformation under this Agreement, and no Confidential Information provided after such notice is received shall be considered Confidential\nInformation hereunder. Any claim for breach of this Agreement must be made and filed within twelve months of actual notice of the\nalleged breach.\n13.\nAll questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by and construed\nand enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof.\nEach party agrees that all legal proceedings concerning the interpretations, enforcement and defense of a Possible Transactions\ncontemplated by this Agreement (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders,\nemployees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby\nirrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, borough of Manhattan for\nthe adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein\n(including with respect to the enforcement of this Agreement), and hereby irrevocably waives, and agrees not to assert in any suit, action or\nproceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper\nor is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process\nbeing served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with\nevidence of delivery) to such party at the address in effect for notices to it (as shown on the signature page hereto and as may be changed\nfrom time to time by notice to the other Party) under this Agreement and agrees that such service shall constitute good and sufficient\nservice of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other\nmanner permitted by law. The Parties waive any right to a jury trial and any right to consolidation with a cause of action involving a jury\ntrial. A Party shall use reasonable commercial efforts to mitigate or reduce any damages or claims relating to a breach of this Agreement by\nthe other Party.\n14.\nIf Recipient or its Representatives disclose any information concerning Recipient's or its Representatives' business or operations to the\nCompany or its Representatives, the Parties agree that (i) any information so disclosed shall constitute "Confidential Information"\nhereunder, and (ii) Recipient and its Representatives shall have mutual mirror reciprocal rights and benefits to the rights and benefits of the\nCompany provided by the foregoing provisions of this letter agreement.\nConfidential\n5\nIn witness whereof the undersigned have executed this Agreement as of the date first written above.\nMusclepharm\nBy:\nLOGO\nName: Brad Pyatt\nTitle: Chairman and CEO\nDate: June 23, 2015\nWith an address of:\n4721 Ironton Street, Building A\nDenver, CO 80239\nConsac, LLC\nBy:\nLOGO\nName: Ryan Drexler\nTitle: President\nDate: June 23, 2015\nWith an address of:\n525 Chalette Drive\nBeverly Hills, California 90211\nConfidential\n6 EX-10.6 7 d937352dex106.htm EX-10.6\nExhibit 10.6\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis confidentiality and non-disclosure agreement (the “Agreement”) is made and entered into as of June 23, 2015, by and between Consac,\nLLC (the “Recipient”), and MusclePharm Corporation, a Nevada corporation (the “Company”). Each of the Recipient and the Company is\nsometimes referred to herein as a “Party” and collectively as “Parties.”\nWHEREAS, the Recipient is desirous of obtaining certain Confidential Information from the Company in connection with a potential\ntransaction between the Company and the Recipient (a “Possible Transaction”);\nWHEREAS, in connection with Recipient’s evaluation of a Possible Transaction the Company may disclose certain confidential\ninformation concerning the Company and/or its affiliates to the Recipient; and\nWHEREAS, the Recipient agrees that it shall use such Confidential Information and refrain from disclosing or making use of such\nConfidential Information, all in accordance with the terms of this Agreement.\nNOW THEREFORE, the parties mutually agree to the following:\n1. Recipient shall be responsible for the conduct of its Representatives and Affiliate Entities (as such terms are hereinafter defined) regarding\nthe confidentiality and use of the Confidential Information. The Recipient shall only disclose the Confidential Information to its directors,\nofficers or employees or parties consented to by the Company pursuant to Section 5 who are bound by confidentiality obligations that are at\nleast as restrictive as the terms of this Agreement and who have a reasonable need to review the Confidential Information in connection\nwith the consideration, evaluation and negotiation of a Possible Transaction (collectively, the “Representatives”). Any disclosure of\nConfidential Information shall not be deemed to grant a license or right to the Recipient or any Representative or Affiliated Entities to use\nConfidential Information for any purpose other than as set forth herein.\n2. For the purpose of this Agreement, “Confidential Information” shall mean any and all commercial, business, financial, technical and/or\nother information relating to the Company and/or its affiliates, including, but not limited to, financial data, statistical information,\nmarketing, and/or product development plans or procedures, trade secrets, real estate information, personnel information and/or other data\ndisclosed to the Recipient pursuant hereto in connection with a Possible Transaction or otherwise, without regard to whether such\ninformation was communicated in writing, orally, visually or by other means, together with all analyses, compilations, studies, or other\ndocuments prepared by Recipient or its Representatives which reflect or are generated from such information.\n3. Subject to the terms and provisions of this Agreement, Recipient agrees to hold in confidence and not to reveal, report, publish, disclose or\ntransfer, directly or indirectly, any of the Confidential Information of the Company to any third party or use any of the Company’s\nConfidential Information for any purpose at any time except as\nConfidential\nnecessary to evaluate a Possible Transaction. The Recipient, its Representatives and Affiliated Entities shall use the Confidential\nInformation in accordance with the terms of this Agreement. All Confidential Information shall remain the sole property of the Company.\nAt any time upon the request of the Company, Recipient will promptly return to the Company or destroy all Confidential Information (in\nany media), including any copies as well as all materials (in any media) which contain or embody Confidential Information, and, with\nrespect to abstracts or summaries of Confidential Information that Recipient may have made, Recipient will destroy such abstracts or\nsummaries and will provide a written declaration from an authorized officer certifying that it has done so. Notwithstanding the preceding\nsentence, Recipient (i) may retain one copy of any portion of the Confidential Information that Recipient has been advised by their counsel\nis required to retain by applicable law, rule or regulation or their internal compliance policies and (ii) shall not be obligated to erase\nConfidential Information contained in an electronic archiving or backup system operating in the ordinary course of business. In the case of\neach of (i) and (ii) in the preceding sentence, Recipient, its Representatives and Affiliate Entitles will continue to keep the Confidential\nInformation confidential in accordance with the terms of this Agreement. Notwithstanding the foregoing, the destruction of any\nConfidential Information does not affect any of the Recipient’s obligations hereunder and the Confidential Information, whether or not\ndestroyed, will remain subject to the restrictions herein. In connection with the obligations under this Agreement, Recipient shall maintain\nthe confidentiality of the Confidential Information with at least the same degree of care that it uses to protect its own confidential\ninformation, but no less than a reasonable degree of care under the circumstances.\n4. Except as may be required by law, including securities laws, without the prior written consent of the other Party, neither Party shall, and\neach Party shall direct its Representatives not to, disclose to any person or entity (other than its Representatives) (a) that any investigations,\ndiscussions or negotiations are taking place (including, without limitation, concerning a Possible Transaction involving the Company and\nthe Recipient), (b) that Recipient has requested or received any Confidential Information, (c) the terms of this Agreement, or (d) any of the\nterms, conditions, negotiations, discussions or other facts (including, without limitation, with respect to a Possible Transaction, including\nthe status thereof).\n5. Without the prior written consent of the Company, Recipient shall not, and shall direct its Representatives and Affiliate Entitles (as defined\nin Section 9 below) not to disclose any Confidential Information to any third parties (including, without limitation, in connection with a\nPossible Transaction, or otherwise discuss a Possible Transaction with, or disclose a Possible Transaction to, any third parties. Recipient\nrepresents and covenants that Recipient does not have (and will not enter into) (a) any agreement or understanding with any other person\nthat such person will refrain from bidding on or participating in a Possible Transaction with the Company, (b) any agreement pursuant to\nwhich any other person will have a right to participate in a Possible Transaction with the Company involving the Recipient if the Recipient\nis successful in consummating a Possible Transaction with the Company or (c) any agreement or arrangement with any potential debt or\nequity financing sources which may reasonably be expected to limit such financing source from acting as a financing source for any other\npotential acquirer or participant in a Possible Transaction with the Company.\nConfidential\n2\n6. Due to the unique confidential, proprietary, unique and valuable nature of the Confidential Information, Recipient acknowledges and agrees\nthat in the event Recipient fails to comply with its obligations hereunder, that monetary damages may be inadequate to compensate the\nCompany. Accordingly, Recipient agrees that the Company shall, in addition to any other remedies available to it at law or in equity, be\nentitled to seek injunctive relief to enforce the terms of Sections 2, 3, 4 and 5 of this Agreement.\n7. Notwithstanding anything herein to the contrary, Confidential Information shall not include any information which (a) at the time of its\ndisclosure or thereafter is generally available to or known to the public other than as a result of a disclosure by the Recipient or its\nrepresentatives in breach of this Agreement, (b) was or becomes available to the Recipient, on a non-confidential basis from a source other\nthan the Company, (c) is shown by written dated records (or any other evidence or documentary media) to have been independently\nacquired or developed by Recipient without breaching this Agreement, (d) is shown by written dated records (or any other evidence or\ndocumentary media) to have been lawfully in the possession of or known to the Recipient prior to disclosure by the Company, or\n(e) Recipient is compelled by court or government action pursuant to applicable law to disclose, provided, however, that Recipient gives\nthe Company prompt notice thereof so that the Company may seek a protective order or other appropriate remedy.\n8. The Recipient acknowledges that the Company is a publicly traded company. As such, the Recipient agrees not to use any material non-\npublic Confidential Information in connection with the purchase or sale of the securities of the Company. The Recipient further\nacknowledges that such use may constitute a violation of securities laws.\n9. The Recipient acknowledges that, in its examination of the Confidential Information, it will be given access to material non-public\ninformation concerning the Company. In consideration of receipt of that information, for a period of the later of (A) twelve months from\nthe date of this Agreement and (B) the date on which the 2016 annual meeting of the Company’s shareholders is held (which shall be held\nno later than December 31, 2016) (the “Standstill Period”) the Recipient on behalf of itself, its parent and subsidiary entities and entities\nunder common control therewith (the “Affiliate Entities”), hereby agrees that each of the Recipient and the Affiliated Entities shall not,\nother than as authorized in writing by the Company: (i) in any manner acquire, whether from the Company or a third party, directly or\nindirectly (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as\namended (“Exchange Act”)) of any additional voting securities or other equity interests in the Company or all or substantially all of the\nassets of the Company; (ii) enter into, directly or indirectly, any merger or business combination involving the Company; (iii) solicit\nproxies or consents, directly or indirectly, or become a “participant” in any “solicitation” (as such terms are defined in Regulation 14A\nunder the Exchange Act) of proxies or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting\nsecurities of the Company; (iv) with respect to any voting securities of the Company, (a) form or join any “group” (within the meaning of\nSection 13(d)(3) of the Exchange Act) after the date of this agreement that would be required under the Exchange Act to file a statement on\nSchedule 13D or Schedule 13G if such group had not previously filed such statement or otherwise require an amendment to such statement\nif such a\nConfidential\n3\nstatement has been filed prior to the date hereof or (b) in the event that the Recipient or any of the Recipient’s Affiliated Entities have\nformed or joined any such group prior to the date hereof, participate in or benefit from any additional action by such group or any member\nthereof after the date of this agreement that (1) would constitute a violation of this paragraph if undertaken by the Recipient alone or\n(2) would require such group to file a statement on Schedule 13D or Schedule 13G if such group had not previously filed such a statement\nor otherwise require an amendment to such statement if such a statement has been filed prior to the date hereof; (v) otherwise act, alone or\nin concert with others, to seek to control the management, Board of Directors or policies of the Company; (vi) initiate any communications\nconcerning the Confidential Information or a Possible Transaction with any employee of the Company (other than Brad Pyatt, Chief\nExecutive Officer of the Company) except as contemplated by this Agreement; (vii) publicly disclose any intention, plan or arrangement\ninconsistent with any of the foregoing; (viii) advise, assist or encourage any other person in connection with any of the foregoing or\n(ix) other than as authorized be this letter agreement or any definitive agreement relating to a Possible Transaction executed by the Parties\nor their affiliates, take any action that would legally require the Company to make a public announcement regarding a business\ncombination, merger, sale of all or substantially all of its assets, liquidation or other extraordinary corporate transaction involving the\nCompany.\nNotwithstanding any of the foregoing, Recipient shall be permitted to purchase securities currently held by Wynnefield Capital, Inc. and its\naffiliates.\n10. This Agreement shall be binding upon and inure to the benefit of the parties, their subsidiaries, and their respective successors. No\nassignment or modification of this Agreement may be made by any party without the prior written consent of the other party, which consent\nmay be granted or denied in such other party’s sole discretion. This Agreement shall not create any obligation on any party hereof to enter\ninto any agreement between the Company and the Recipient or any other agreement or to negotiate or discuss any of the foregoing. In\naddition, the furnishing of Confidential Information hereunder shall not obligate either Party to (i) enter into any further agreement or\nnegotiation with the other or (ii) to continue any negotiations, in good faith or provide any information or (iii) to refrain from entering into\nan agreement or negotiation with any other person, including without limitation any other person engaged in the same or a similar line of\nbusiness as the other party hereto. Neither party shall have any liability to the other resulting from the use of or reliance upon the\nConfidential Information.\n11. This Agreement contains the full and complete understanding of the parties with respect to the subject matter hereof and supersedes all\nprior representations and understandings regarding the subject matter hereof, whether oral or written. Failure to exercise or delay in\nexercising any remedy hereunder shall not be deemed a waiver thereof. Each party represents that this Agreement is being signed by a duly\nauthorized officer.\nConfidential\n4\n12. This Agreement may be signed in counterparts, each of which shall for all purposes be deemed an original, and together shall constitute\none and the same instrument. This Agreement shall expire twelve months from the effective date hereof. Notwithstanding the foregoing,\nand without altering the rights and obligations of the parties with respect to any Confidential Information provided prior thereto, each Party\nreserves the right at any time to notify the other Party in writing that it no longer desires to provide or receive additional Confidential\nInformation under this Agreement, and no Confidential Information provided after such notice is received shall be considered Confidential\nInformation hereunder. Any claim for breach of this Agreement must be made and filed within twelve months of actual notice of the\nalleged breach.\n13. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by and construed\nand enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof.\nEach party agrees that all legal proceedings concerning the interpretations, enforcement and defense of a Possible Transactions\ncontemplated by this Agreement (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders,\nemployees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby\nirrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, borough of Manhattan for\nthe adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein\n(including with respect to the enforcement of this Agreement), and hereby irrevocably waives, and agrees not to assert in any suit, action or\nproceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper\nor is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process\nbeing served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with\nevidence of delivery) to such party at the address in effect for notices to it (as shown on the signature page hereto and as may be changed\nfrom time to time by notice to the other Party) under this Agreement and agrees that such service shall constitute good and sufficient\nservice of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other\nmanner permitted by law. The Parties waive any right to a jury trial and any right to consolidation with a cause of action involving a jury\ntrial. A Party shall use reasonable commercial efforts to mitigate or reduce any damages or claims relating to a breach of this Agreement by\nthe other Party.\n14. If Recipient or its Representatives disclose any information concerning Recipient’s or its Representatives’ business or operations to the\nCompany or its Representatives, the Parties agree that (i) any information so disclosed shall constitute “Confidential Information”\nhereunder, and (ii) Recipient and its Representatives shall have mutual mirror reciprocal rights and benefits to the rights and benefits of the\nCompany provided by the foregoing provisions of this letter agreement.\nConfidential\n5\nIn witness whereof the undersigned have executed this Agreement as of the date first written above.\nMusclepharm\nBy:\nLOGO\nName: Brad Pyatt\nTitle: Chairman and CEO\nDate: June 23, 2015\nWith an address of:\n4721 Ironton Street, Building A\nDenver, CO 80239\nConsac, LLC\nBy:\nLOGO\nName: Ryan Drexler\nTitle: President\nDate: June 23, 2015\nWith an address of:\n525 Chalette Drive\nBeverly Hills, California 90211\nConfidential\n6 5c6a75a65f4b47a2b76f74e08d1c6fb5.pdf effective_date jurisdiction party term Appendix A\nNON-DISCLOSURE AGREEMENT\n(Employee)\nThis Non-Disclosure Agreement (“Agreement”) dated as of January 1, 2008 is entered in by and between BioLargo, Inc. (the “Company”) and\nJoseph Provenzano (the “Employee”), and sets forth the terms and conditions on which Company is willing to disclose certain material non-public\ninformation about the Company.\n1. Purpose. In connection with his retention as an employee to the Company pursuant to an agreement dated as of even date (the\n“Employment Agreement”), the Company may disclose to the Employee certain confidential technical and business information which the Company\nrequires the Employee to treat as confidential.\n2. Definition. “Confidential Information” means any information disclosed to the Employee by the Company, either directly or indirectly in\nwriting, orally or by inspection of tangible objects, including without limitation documents, prototypes and forecasted financial information.\nConfidential Information may also include information disclosed to the Company by third parties. Confidential Information shall not, however,\ninclude any information which the Employee can establish by written documentation (i) was publicly known and made generally available in the\npublic domain prior to the time of disclosure to the Employee by the Company; (ii) becomes publicly known and made generally available after\ndisclosure to the Employee by the Company through no action or inaction of the Employee; (iii) is in the possession of the Employee, without\nconfidentiality restrictions, at the time of disclosure by the Company as shown by the Employee’s files and records immediately prior to the time of\ndisclosure; (iv) is developed independently of the Confidential Information, as shown by written records prepared contemporaneously with such\nindependent development; or (v) is disclosed pursuant to the requirement of a United States government agency or judicial body, provided that the\nEmployee shall provide reasonable advice notice thereof to enable the Company to seek a protective order or otherwise prevent such disclosure.\n3. Non-use and Non-disclosure. The Employee agrees not to use any Confidential Information for any purpose except within the proper scope\nof his duties pursuant to the Consulting Agreement. The Employee agrees not to disclose any Confidential Information to third parties, except to\nthose individuals who, with the prior written consent of the Company, are designated as authorized to receive such Confidential Information in order\nfor the Employee to perform his duties and obligation sunder the Consulting Agreement. The Employee agrees that each third party receiving any\nConfidential Information will enter into a separate Non-Disclosure Agreement with the Company.\n4. Maintenance of Confidentiality. The Employee agrees that it shall take all commercially reasonable measures to protect the secrecy of and\navoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, the Employee shall take at least those\nmeasures that the Employee takes to protect its own confidential information of a similar nature and shall have its employees or advisors who have\naccess to Confidential Information sign a non-use and non-disclosure agreement in content substantially similar to the provisions hereof, prior to any\ndisclosure of Confidential Information to such employees. The Employee shall immediately notify the Company in the event of any unauthorized\nuse or disclosure of any Confidential Information.\n-1-\n5. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. COMPANY MAKES NO WARRANTIES, EXPRESS,\nIMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.\n6. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which are in the\npossession of the Employee shall be and remain the property of the Company and shall be promptly returned to the Company upon request for any\nreason or for no reason.\n7. Work Made for Hire.\n(a) Employee and/or designates of the Employee shall promptly and fully inform the Company of, and disclose to the Company , any and all\nideas, processes, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, fictitious business names,\ntechnology, patents, know-how, trade secrets, computer programs, original works of authorship, formulae, concepts, themes, inventions, designs,\ncreations, new works, derivative works and discoveries, and all applications, improvements, rights and claims related to any the foregoing, and all\nother intellectual property, proprietary rights and work product, whether or not patentable or copyrightable, registered or unregistered or domestic or\nforeign, and whether or not relating to a published work, that Employee develops, makes, creates, conceives or reduces to practice during the term of\nthe Consulting Agreement, whether alone or in collaboration with others (collectively, “Invention Ideas”). Employee hereby assigns to the\nCompany exclusively in perpetuity throughout the world all right, title and interest (choate or inchoate) in (i) the Invention Ideas, (ii) all precursors,\nportions and work in progress with respect thereto and all inventions, works of authorship, mask works, technology, information, know-how,\nmaterials and tools relating thereto or to the development, support or maintenance thereof and (iii) all copyrights, patent rights, trade secret rights,\ntrademark rights, mask works rights, sui generis database rights and all other intellectual and industrial property rights of any sort and all business,\ncontract rights, causes of action, and goodwill in, incorporated or embodied in, used to develop, or related to any of the foregoing (collectively\n“Intellectual Property”). All copyrightable Invention Ideas are intended by Employee to be a “work-made-for-hire” by Employee for Company and\nowned by Company pursuant to Section 201 (b) of Title 17 of the United States Code.\n(b) Employee shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such\nother agreements, certificates, instruments and documents, as the Company may reasonably request in order to obtain patent or copyright registration\non all Invention Ideas and Intellectual Property , and shall execute and deliver all documents, instruments and agreements, including the formal\nexecution of an assignment of copyright and/or patent application or issued patent, and do all things necessary or requested by the Company, in order\nto enable Company to ultimately and finally obtain and enforce full and exclusive title to all Invention Ideas and Intellectual Property and all rights\nassigned pursuant to this Section 7. Employee hereby appoints the Company as Employee’s irrevocable attorney-in-fact for the purpose of executing\nand delivering all such documents, instruments and agreements, and performing all such acts, with the same legal force and effect as if executed and\ndelivered and taken by Employee.\n(c) If for any reason the foregoing assignment is determined to be unenforceable Employee grants to Company a perpetual, irrevocable,\nworldwide, royalty-free, exclusive, sub-licensable right and license to exploit and exercise all such Invention Ideas and Intellectual Property.\n(d) Because of the difficulty of establishing when Employee first conceives of or develops Intellectual Property, proprietary rights or work\nproduct or whether such Intellectual Property, proprietary rights or work product results from access to Company’s confidential and proprietary\ninformation or\n-2-\nequipment, facilities or data, Employee agrees that any Intellectual Property, proprietary rights and work product shall be presumed to be an\nInvention Idea if it is conceived, developed, used, sold, exploited or reduced to practice by Employee or with the aid of Employee within one year\nafter the normal termination of Employee’s employment with Company. Employee can rebut that presumption if Employee proves that the\nintellectual property, proprietary rights and work product (i) was first conceived or developed after termination of Employee’s employment with and\nby Company; (ii) was conceived or developed entirely on Employee’s own time without using Company’s equipment, supplies, facilities or\nconfidential and proprietary information; and (iii) did not result from any work performed by Employee for or on behalf of Company.\n(e) Employee acknowledges that there is no intellectual property, proprietary right or work product that Employee desires not to be deemed\nInvention Ideas or Intellectual Property and thus to exclude from the above provisions of this Agreement. To the best of Employee’s knowledge,\nthere is no other existing contract in conflict with this Agreement or any other contract to assign ideas, processes, trademarks, service marks,\ninventions, technology, computer programs, original works of authorship, designs, formulas, discoveries, patents or copyrights that is now in\nexistence between Employee and any other person or entity.\n(f) This Section 7 shall not operate to require Employee to assign to Company any of Employee’s rights to inventions, intellectual properties or\nwork products that would not be assignable under the provisions of California Labor Code Section 2870. Employee represents and warrants to\nCompany that this paragraph constitutes Company’s written notification to Employee of the provisions of Section 2870 of the California Labor\nCode, and Employee represents and warrants to Company that Employee has reviewed Section 2870 of the California Labor Code.\n8. Unfair Competition and Protection of Proprietary Information.\n(a) Employee shall not at any time (including after Employee’s employment with Company terminates) divulge, furnish or make accessible to\nanyone any of Company’s Proprietary Information, or use in any way any of Company’s Proprietary Information other than as reasonably required to\nperform Employee’s duties under this Agreement. Employee shall not undertake any other acts or omissions that would reduce the value to Company\nof Company’s Proprietary Information. The restrictions on Employee’s use of Company’s Proprietary Information shall not apply to knowledge or\ninformation that Employee can prove is part of the public domain through no fault of Employee. Employee agrees that such restrictions are fair and\nreasonable.\n(b) Employee agrees that Company’s Proprietary Information constitutes a unique and valuable asset of Company that Company acquired at\ngreat time and expense, and which is secret and confidential and will only be available to or communicated to Employee in confidence in the course\nof Employee’s provision of services to Company. Employee also agrees that any disclosure or other use of Company’s Proprietary Information other\nthan for Company’s sole benefit would be wrongful, would constitute unfair competition and will cause irreparable and incalculable harm to\nCompany and to its subsidiaries, affiliates and divisions. In addition to all other remedies Company may have, it shall have the right to seek and\nobtain appropriate injunctive and other equitable relief, including emergency relief, to prevent any violations of this Section 8.\n(c) Employee agrees that Company’s employees constitute a valuable asset of Company. Employee agrees that Employee shall not, during the\nTerm and for a period of two years thereafter, directly or indirectly, for Employee or on behalf of any other person or entity, solicit any person who\nwas an employee of or consultant to Company (at any time while Employee is performing any services for Company, or at any time within twelve\nmonths prior to or after such solicitation) for a competing\n-3-\nbusiness or otherwise induce or attempt to induce any such persons to terminate their employment or relationship with Company or otherwise to\ndisrupt or interfere, or attempt to disrupt or interfere, with Company’s employment or relationships with such persons. Employee agrees that any\nsuch solicitation, inducement or interference would be wrongful and would constitute unfair competition, and will cause irreparable and incalculable\nharm to Company. Further, Employee shall not engage in any other unfair competition with Company. Employee agrees that such restrictions are fair\nand reasonable.\n(d) Employee recognizes and agrees that Employee has no expectation of privacy with respect to Company’s telecommunications, networking\nor information processing systems (including stored computer files, e-mail messages and voice messages), and that Employee’s activity, and any\nfiles or messages, on or using any of those systems may be monitored at any time without notice.\n(e) As used in this Agreement, “Company’s Proprietary Information” means any knowledge, trade secrets (including “trade secrets” as defined\nin Section 3426.1 of the California Civil Code), Invention Ideas, proprietary rights or proprietary information, intangible assets or property, and other\nintellectual property (whether or not copyrighted or copyrightable or patented or patentable), information and materials (including processes,\ntrademarks, trade names, service marks, service mark applications, copyrights, mask work rights, technology, patents, patent applications and works\nof authorship), in whatever form, including electronic form, and all goodwill relating or appurtenant thereto, owned or licensed by Company or any\nof its subsidiaries, affiliates or divisions, or directly or indirectly useful in any aspect of the business of Company or its subsidiaries, affiliates or\ndivisions, whether or not marked as confidential or proprietary and whether developed by Employee, by Company or its subsidiaries, affiliates or\ndivisions or by others. Without limiting the foregoing, Company’s Proprietary Information includes (a) the names, locations, practices and\nrequirements of any of Company’s customers, prospective customers, vendors, suppliers and personnel and any other persons having a business\nrelationship with Company; (b) confidential or secret development or research work of Company or its subsidiaries, affiliates or divisions, including\ninformation concerning any future or proposed services or products; (c) Company’s accounting, cost, revenue and other financial records and\ndocuments and the contents thereof; (d) Company’s documents, contracts, agreements, correspondence and other similar business records;\n(e) confidential or secret designs, software code, know how, processes, formulae, plans and devices; and (f) any other confidential or secret aspect of\nthe business of Company or its subsidiaries, affiliates or divisions.\n9. Employee’s Activities. During the term of the Consulting Agreement, neither Employee nor any person or entity acting with or on\nEmployee’s behalf, nor any person or entity under the control of or affiliated with Employee, shall, directly or indirectly, in any way Compete with\nthe Company. Employee agrees that, if Employee has any business to transact on Employee’s own account that is similar to the business entrusted to\nEmployee by Company, Employee shall notify Company and always give preference to Company’s business. Employee agrees that such restrictions\nare fair and reasonable. For purposes of this Agreement, “Compete” means doing any of the following: (i) selling products or services to any person\nor entity that was or is (at any time, including during the Term and the period when the provisions of this paragraph are in effect) a client or customer\nof Company (or its subsidiaries, affiliates or divisions) or on a list of prospective clients or customers of Company, or calling on, soliciting, taking\naway or accepting any such person or entity as a client or customer, or any attempt or offer to do any of the foregoing; (ii) entering into, or any\nattempt or offer to enter into, any business, enterprise or activity that is in any way similar to or otherwise competitive with the business that the\nCompany (or its subsidiaries, affiliates or divisions) conducted at any time during the Term or any time the provisions of this paragraph are in effect,\nor (iii) directly or indirectly assisting any person or entity to take or attempt or offer to take any of the actions described in the foregoing clauses (i)\nor (ii).\n10. Remedies.\n-4-\n(a) The Employee agrees that any violation or threatened violation of this Agreement will cause irreparable injury to the Company, entitling\nthe Company to obtain injunctive relief in addition to all legal remedies at its disposal.\n(b) In addition to all remedies available hereunder, at law or in equity, if Employee breaches any provision of Section 8 of this Agreement,\nCompany shall have the right to invoke any and all remedies provided under the California Uniform Trade Secrets Act (California Civil Code\n§§3426, et seq.) or other statutes or common law remedies of similar effect.\n(c) The remedies provided to Company in this Section 10 are cumulative, and not exclusive, of any other remedies that may be available to\nCompany at law or in equity.\n11. No License. Nothing in this Agreement is intended to grant any rights to the Employee under any patent, copyright or other proprietary\nrights of the Company, nor shall this Agreement grant the Employee any rights in or to Confidential Information except as expressly set forth herein.\n12. Term. This Agreement shall survive the term of the Consulting Agreement and shall continue until such time as all Confidential\nInformation disclosed hereunder becomes publicly known and made generally available through no action or inaction of the Employee.\n13. Miscellaneous. This Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns. This Agreement\nshall be governed by the laws of the State of California, without reference to conflict of laws principles. This document contains the entire agreement\nbetween the parties with respect to the subject matter hereof. Any failure to enforce any provision of this Agreement shall not constitute a waiver\nthereof or of any other provision hereof. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties\nhereto.\nIN WITNESS WHEREOF, the parties hereto have executed or caused their duly authorized officers to execute this Agreement as of the date\nfirst above written.\nBIOLARGO, INC. (“COMPANY”)\nBy /s/ Dennis Calvert\nDennis Calvert\nTitle: Chief Executive Officer\n“EMPLOYEE”\n/s/ Joseph L. Provenzano\n-5- Appendix A\nNON-DISCLOSURE AGREEMENT\n(Employee)\nThis Non-Disclosure Agreement (“Agreement”) dated as of January 1, 2008 is entered in by and between BioLargo, Inc. (the “Company”) and\nJoseph Provenzano (the “Employee”), and sets forth the terms and conditions on which Company is willing to disclose certain material non-public\ninformation about the Company.\n1. Purpose. In connection with his retention as an employee to the Company pursuant to an agreement dated as of even date (the\n“Employment Agreement”), the Company may disclose to the Employee certain confidential technical and business information which the Company\nrequires the Employee to treat as confidential.\n2. Definition. “Confidential Information” means any information disclosed to the Employee by the Company, either directly or indirectly in\nwriting, orally or by inspection of tangible objects, including without limitation documents, prototypes and forecasted financial information.\nConfidential Information may also include information disclosed to the Company by third parties. Confidential Information shall not, however,\ninclude any information which the Employee can establish by written documentation (i) was publicly known and made generally available in the\npublic domain prior to the time of disclosure to the Employee by the Company; (ii) becomes publicly known and made generally available after\ndisclosure to the Employee by the Company through no action or inaction of the Employee; (iii) is in the possession of the Employee, without\nconfidentiality restrictions, at the time of disclosure by the Company as shown by the Employee’s files and records immediately prior to the time of\ndisclosure; (iv) is developed independently of the Confidential Information, as shown by written records prepared contemporaneously with such\nindependent development; or (v) is disclosed pursuant to the requirement of a United States government agency or judicial body, provided that the\nEmployee shall provide reasonable advice notice thereof to enable the Company to seek a protective order or otherwise prevent such disclosure.\n3. Non-use and Non-disclosure. The Employee agrees not to use any Confidential Information for any purpose except within the proper scope\nof his duties pursuant to the Consulting Agreement. The Employee agrees not to disclose any Confidential Information to third parties, except to\nthose individuals who, with the prior written consent of the Company, are designated as authorized to receive such Confidential Information in order\nfor the Employee to perform his duties and obligation sunder the Consulting Agreement. The Employee agrees that each third party receiving any\nConfidential Information will enter into a separate Non-Disclosure Agreement with the Company.\n4. Maintenance of Confidentiality. The Employee agrees that it shall take all commercially reasonable measures to protect the secrecy of and\navoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, the Employee shall take at least those\nmeasures that the Employee takes to protect its own confidential information of a similar nature and shall have its employees or advisors who have\naccess to Confidential Information sign a non-use and non-disclosure agreement in content substantially similar to the provisions hereof, prior to any\ndisclosure of Confidential Information to such employees. The Employee shall immediately notify the Company in the event of any unauthorized\nuse or disclosure of any Confidential Information.\n-1-\n5. No Warranty. ALL. CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. COMPANY MAKES NO WARRANTIES, EXPRESS,\nIMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.\n6. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which are in the\npossession of the Employee shall be and remain the property of the Company and shall be promptly returned to the Company upon request for any\nreason or for no reason.\n7. Work Made for Hire.\n(a) Employee and/or designates of the Employee shall promptly and fully inform the Company of, and disclose to the Company , any and all\nideas, processes, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, fictitious business names,\ntechnology, patents, know-how, trade secrets, computer programs, original works of authorship, formulae, concepts, themes, inventions, designs,\ncreations, new works, derivative works and discoveries, and all applications, improvements, rights and claims related to any the foregoing, and all\nother intellectual property, proprietary rights and work product, whether or not patentable or copyrightable, registered or unregistered or domestic or\nforeign, and whether or not relating to a published work, that Employee develops, makes, creates, conceives or reduces to practice during the term of\nthe Consulting Agreement, whether alone or in collaboration with others (collectively, “Invention Ideas”). Employee hereby assigns to the\nCompany exclusively in perpetuity throughout the world all right, title and interest (choate or inchoate) in (i) the Invention Ideas, (ii) all precursors,\nportions and work in progress with respect thereto and all inventions, works of authorship, mask works, technology, information, know-how,\nmaterials and tools relating thereto or to the development, support or maintenance thereof and (iii) all copyrights, patent rights, trade secret rights,\ntrademark rights, mask works rights, sui generis database rights and all other intellectual and industrial property rights of any sort and all business,\ncontract rights, causes of action, and goodwill in, incorporated or embodied in, used to develop, or related to any of the foregoing (collectively\n“Intellectual Property”). All copyrightable Invention Ideas are intended by Employee to be a “work-made-for-hire” by Employee for Company and\nowned by Company pursuant to Section 201 (b) of Title 17 of the United States Code.\n(b) Employee shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such\nother agreements, certificates, instruments and documents, as the Company may reasonably request in order to obtain patent or copyright registration\non all Invention Ideas and Intellectual Property , and shall execute and deliver all documents, instruments and agreements, including the formal\nexecution of an assignment of copyright and/or patent application or issued patent, and do all things necessary or requested by the Company, in order\nto enable Company to ultimately and finally obtain and enforce full and exclusive title to all Invention Ideas and Intellectual Property and all rights\nassigned pursuant to this Section 7. Employee hereby appoints the Company as Employee’s irrevocable attorney-in-fact for the purpose of executing\nand delivering all such documents, instruments and agreements, and performing all such acts, with the same legal force and effect as if executed and\ndelivered and taken by Employee.\n(c) If for any reason the foregoing assignment is determined to be unenforceable Employee grants to Company a perpetual, irrevocable,\nworldwide, royalty-free, exclusive, sub-licensable right and license to exploit and exercise all such Invention Ideas and Intellectual Property.\n(d) Because of the difficulty of establishing when Employee first conceives of or develops Intellectual Property, proprietary rights or work\nproduct or whether such Intellectual Property, proprietary rights or work product results from access to Company’s confidential and proprietary\ninformation or\n_2-\nequipment, facilities or data, Employee agrees that any Intellectual Property, proprietary rights and work product shall be presumed to be an\nInvention Idea if it is conceived, developed, used, sold, exploited or reduced to practice by Employee or with the aid of Employee within one year\nafter the normal termination of Employee’s employment with Company. Employee can rebut that presumption if Employee proves that the\nintellectual property, proprietary rights and work product (i) was first conceived or developed after termination of Employee’s employment with and\nby Company; (ii) was conceived or developed entirely on Employee’s own time without using Company’s equipment, supplies, facilities or\nconfidential and proprietary information; and (iii) did not result from any work performed by Employee for or on behalf of Company.\n(e) Employee acknowledges that there is no intellectual property, proprietary right or work product that Employee desires not to be deemed\nInvention Ideas or Intellectual Property and thus to exclude from the above provisions of this Agreement. To the best of Employee’s knowledge,\nthere is no other existing contract in conflict with this Agreement or any other contract to assign ideas, processes, trademarks, service marks,\ninventions, technology, computer programs, original works of authorship, designs, formulas, discoveries, patents or copyrights that is now in\nexistence between Employee and any other person or entity.\n(f) This Section 7 shall not operate to require Employee to assign to Company any of Employee’s rights to inventions, intellectual properties or\nwork products that would not be assignable under the provisions of California Labor Code Section 2870. Employee represents and warrants to\nCompany that this paragraph constitutes Company’s written notification to Employee of the provisions of Section 2870 of the California Labor\nCode, and Employee represents and warrants to Company that Employee has reviewed Section 2870 of the California Labor Code.\n8. Unfair Competition and Protection of Proprietary Information.\n \n(a) Employee shall not at any time (including after Employee’s employment with Company terminates) divulge, furnish or make accessible to\nanyone any of Company’s Proprietary Information, or use in any way any of Company’s Proprietary Information other than as reasonably required to\nperform Employee’s duties under this Agreement. Employee shall not undertake any other acts or omissions that would reduce the value to Company\nof Company’s Proprietary Information. The restrictions on Employee’s use of Company’s Proprietary Information shall not apply to knowledge or\ninformation that Employee can prove is part of the public domain through no fault of Employee. Employee agrees that such restrictions are fair and\nreasonable.\n(b) Employee agrees that Company’s Proprietary Information constitutes a unique and valuable asset of Company that Company acquired at\ngreat time and expense, and which is secret and confidential and will only be available to or communicated to Employee in confidence in the course\nof Employee’s provision of services to Company. Employee also agrees that any disclosure or other use of Company’s Proprietary Information other\nthan for Company’s sole benefit would be wrongful, would constitute unfair competition and will cause irreparable and incalculable harm to\nCompany and to its subsidiaries, affiliates and divisions. In addition to all other remedies Company may have, it shall have the right to seek and\nobtain appropriate injunctive and other equitable relief, including emergency relief, to prevent any violations of this Section 8.\n(c) Employee agrees that Company’s employees constitute a valuable asset of Company. Employee agrees that Employee shall not, during the\nTerm and for a period of two years thereafter, directly or indirectly, for Employee or on behalf of any other person or entity, solicit any person who\nwas an employee of or consultant to Company (at any time while Employee is performing any services for Company, or at any time within twelve\nmonths prior to or after such solicitation) for a competing\n_3-\nbusiness or otherwise induce or attempt to induce any such persons to terminate their employment or relationship with Company or otherwise to\ndisrupt or interfere, or attempt to disrupt or interfere, with Company’s employment or relationships with such persons. Employee agrees that any\nsuch solicitation, inducement or interference would be wrongful and would constitute unfair competition, and will cause irreparable and incalculable\nharm to Company. Further, Employee shall not engage in any other unfair competition with Company. Employee agrees that such restrictions are fair\nand reasonable.\n(d) Employee recognizes and agrees that Employee has no expectation of privacy with respect to Company’s telecommunications, networking\nor information processing systems (including stored computer files, e-mail messages and voice messages), and that Employee’s activity, and any\nfiles or messages, on or using any of those systems may be monitored at any time without notice.\n(e) As used in this Agreement, “Company’s Proprietary Information” means any knowledge, trade secrets (including “trade secrets” as defined\nin Section 3426.1 of the California Civil Code), Invention Ideas, proprietary rights or proprietary information, intangible assets or property, and other\nintellectual property (whether or not copyrighted or copyrightable or patented or patentable), information and materials (including processes,\ntrademarks, trade names, service marks, service mark applications, copyrights, mask work rights, technology, patents, patent applications and works\nof authorship), in whatever form, including electronic form, and all goodwill relating or appurtenant thereto, owned or licensed by Company or any\nof its subsidiaries, affiliates or divisions, or directly or indirectly useful in any aspect of the business of Company or its subsidiaries, affiliates or\ndivisions, whether or not marked as confidential or proprietary and whether developed by Employee, by Company or its subsidiaries, affiliates or\ndivisions or by others. Without limiting the foregoing, Company’s Proprietary Information includes (a) the names, locations, practices and\nrequirements of any of Company’s customers, prospective customers, vendors, suppliers and personnel and any other persons having a business\nrelationship with Company; (b) confidential or secret development or research work of Company or its subsidiaries, affiliates or divisions, including\ninformation concerning any future or proposed services or products; (c) Company’s accounting, cost, revenue and other financial records and\ndocuments and the contents thereof; (d) Company’s documents, contracts, agreements, correspondence and other similar business records;\n(e) confidential or secret designs, software code, know how, processes, formulae, plans and devices; and (f) any other confidential or secret aspect of\nthe business of Company or its subsidiaries, affiliates or divisions.\n9. Employee’s Activities. During the term of the Consulting Agreement, neither Employee nor any person or entity acting with or on\nEmployee’s behalf, nor any person or entity under the control of or affiliated with Employee, shall, directly or indirectly, in any way Compete with\nthe Company. Employee agrees that, if Employee has any business to transact on Employee’s own account that is similar to the business entrusted to\nEmployee by Company, Employee shall notify Company and always give preference to Company’s business. Employee agrees that such restrictions\nare fair and reasonable. For purposes of this Agreement, “Compete” means doing any of the following: (i) selling products or services to any person\nor entity that was or is (at any time, including during the Term and the period when the provisions of this paragraph are in effect) a client or customer\nof Company (or its subsidiaries, affiliates or divisions) or on a list of prospective clients or customers of Company, or calling on, soliciting, taking\naway or accepting any such person or entity as a client or customer, or any attempt or offer to do any of the foregoing; (ii) entering into, or any\nattempt or offer to enter into, any business, enterprise or activity that is in any way similar to or otherwise competitive with the business that the\nCompany (or its subsidiaries, affiliates or divisions) conducted at any time during the Term or any time the provisions of this paragraph are in effect,\nor (iii) directly or indirectly assisting any person or entity to take or attempt or offer to take any of the actions described in the foregoing clauses (i)\nor (ii).\n10. Remedies.\n(a) The Employee agrees that any violation or threatened violation of this Agreement will cause irreparable injury to the Company, entitling\nthe Company to obtain injunctive relief in addition to all legal remedies at its disposal.\n(b) In addition to all remedies available hereunder, at law or in equity, if Employee breaches any provision of Section 8 of this Agreement,\nCompany shall have the right to invoke any and all remedies provided under the California Uniform Trade Secrets Act (California Civil Code\n883426, et seq.) or other statutes or common law remedies of similar effect.\n(c) The remedies provided to Company in this Section 10 are cumulative, and not exclusive, of any other remedies that may be available to\nCompany at law or in equity.\n11. No License. Nothing in this Agreement is intended to grant any rights to the Employee under any patent, copyright or other proprietary\nrights of the Company, nor shall this Agreement grant the Employee any rights in or to Confidential Information except as expressly set forth herein.\n12. Term. This Agreement shall survive the term of the Consulting Agreement and shall continue until such time as all Confidential\nInformation disclosed hereunder becomes publicly known and made generally available through no action or inaction of the Employee.\n13. Miscellaneous. This Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns. This Agreement\nshall be governed by the laws of the State of California, without reference to conflict of laws principles. This document contains the entire agreement\nbetween the parties with respect to the subject matter hereof. Any failure to enforce any provision of this Agreement shall not constitute a waiver\nthereof or of any other provision hereof. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties\nhereto.\nIN WITNESS WHEREOF, the parties hereto have executed or caused their duly authorized officers to execute this Agreement as of the date\nfirst above written.\nBIOLARGO, INC. (“COMPANY”)\nBy /s/ Dennis Calvert\nDennis Calvert\nTitle: Chief Executive Officer\n“EMPLOYEE”\n/s/ Joseph L. Provenzano Appendix A\nNON-DISCLOSURE AGREEMENT\n(Employee)\nThis Non-Disclosure Agreement ("Agreement") dated as of January 1, 2008 is entered in by and between BioLargo, Inc. (the "Company") and\nJoseph Provenzano (the "Employee"), and sets forth the terms and conditions on which Company is willing to disclose certain material non-public\ninformation about the Company.\n1. Purpose. In connection with his retention as an employee to the Company pursuant to an agreement dated as of even date (the\n"Employment Agreement"), the Company may disclose to the Employee certain confidential technical and business information which the Company\nrequires the Employee to treat as confidential.\n2. Definition. "Confidential Information" means any information disclosed to the Employee by the Company, either directly or indirectly in\nwriting, orally or by inspection of tangible objects, including without limitation documents, prototypes and forecasted financial information.\nConfidential Information may also include information disclosed to the Company by third parties. Confidential Information shall not, however,\ninclude any information which the Employee can establish by written documentation (i) was publicly known and made generally available in the\npublic domain prior to the time of disclosure to the Employee by the Company; (ii) becomes publicly known and made generally available\nafter\ndisclosure to the Employee by the Company through no action or inaction of the Employee; (iii) is in the possession of the Employee, without\nconfidentiality restrictions, at the time of disclosure by the Company as shown by the Employee's files and records immediately prior to the time\nof\ndisclosure; (iv) is developed independently of the Confidential Information, as shown by written records prepared contemporaneously with such\nindependent development; or (v) is disclosed pursuant to the requirement of a United States government agency or judicial body, provided that the\nEmployee shall provide reasonable advice notice thereof to enable the Company to seek a protective order or otherwise prevent such disclosure.\n3. Non-use and Non-disclosure. The Employee agrees not to use any Confidential Information for any purpose except within the proper scope\nof his duties pursuant to the Consulting Agreement. The Employee agrees not to disclose any Confidential Information to third parties, except to\nthose individuals who, with the prior written consent of the Company, are designated as authorized to receive such Confidential Information in\norder\nfor the Employee to perform his duties and obligation sunder the Consulting Agreement. The Employee agrees that each third party receiving any\nConfidential Information will enter into a separate Non-Disclosure Agreement with the Company.\n4. Maintenance of Confidentiality.. The Employee agrees that it shall take all commercially reasonable measures to protect the secrecy of and\navoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, the Employee shall take at least those\nmeasures that the Employee takes to protect its own confidential information of a similar nature and shall have its employees or advisors who have\naccess to Confidential Information sign a non-use and non-disclosure agreement in content substantially similar to the provisions hereof, prior to any\ndisclosure of Confidential Information to such employees. The Employee shall immediately notify the Company in the event of any unauthorized\nuse or disclosure of any Confidential Information.\n1\n5. No Warranty.. ALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS". COMPANY MAKES NO WARRANTIES, EXPRESS,\nIMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.\n6. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which are in the\npossession of the Employee shall be and remain the property of the Company and shall be promptly returned to the Company upon request for any\nreason or for no reason.\n7. Work Made for Hire.\n(a) Employee and/or designates of the Employee shall promptly and fully inform the Company of, and disclose to the Company any and all\nideas, processes, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, fictitious business names,\ntechnology, patents, know-how, trade secrets, computer programs, original works of authorship, formulae, concepts, themes, inventions, designs,\ncreations, new works, derivative works and discoveries, and all applications, improvements, rights and claims related to any the foregoing, and\nall\nother intellectual property, proprietary rights and work product, whether or not patentable or copyrightable, registered or unregistered or domestic or\nforeign, and whether or not relating to a published work, that Employee develops, makes, creates, conceives or reduces to practice during the term of\nthe Consulting Agreement, whether alone or in collaboration with others (collectively, "Invention Ideas"). Employee hereby assigns to the\nCompany exclusively in perpetuity throughout the world all right, title and interest (choate or inchoate) in (i) the Invention Ideas, (ii) all precursors,\nportions and work in progress with respect thereto and all inventions, works of authorship, mask works, technology, information, know-how,\nmaterials and tools relating thereto or to the development, support or maintenance thereof and (iii) all copyrights, patent rights, trade secret rights,\ntrademark rights, mask works rights, sui generis database rights and all other intellectual and industrial property rights of any sort and all business,\ncontract\nrights,\ncauses of action, and goodwill in, incorporated or embodied in, used to develop, or related to any of the foregoing (collectively\n"Intellectual Property"). All copyrightable Invention Ideas are intended by Employee to be a "work-made-for-hire" by Employee for Company and\nowned by Company pursuant to Section 201 (b) of Title 17 of the United States Code.\n(b) Employee shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such\nother agreements, certificates, instruments and documents, as the Company may reasonably request in order to obtain patent or copyright registration\non all Invention Ideas and Intellectual Property and shall execute and deliver all documents, instruments and agreements, including the formal\nexecution of an assignment of copyright and/or patent application or issued patent, and do all things necessary or requested by the Company, in order\nto enable Company to ultimately and finally obtain and enforce full and exclusive title to all Invention Ideas and Intellectual Property and all rights\nassigned pursuant to this Section 7. Employee hereby appoints the Company as Employee's irrevocable attorney-in-fact for the purpose of\nexecuting\nand delivering all such documents, instruments and agreements, and performing all such acts, with the same legal force and effect as if executed and\ndelivered and taken by Employee.\n(c) If for any reason the foregoing assignment is determined to be unenforceable Employee grants to Company a perpetual, irrevocable,\nworldwide, royalty-free, exclusive, sub-licensable right and license to exploit and exercise all such Invention Ideas and Intellectual Property.\n(d) Because of the difficulty of establishing when Employee first conceives of or develops Intellectual Property, proprietary rights or work\nproduct or whether such Intellectual Property, proprietary rights or work product results from access to Company's confidential and proprietary\ninformation or\n2\nequipment facilities or data, Employee agrees that any Intellectual Property, proprietary rights and work product shall be presumed to be an\nInvention Idea if it is conceived, developed, used, sold, exploited or reduced to practice by Employee or with the aid of Employee within one year\nafter the normal termination of Employee's employment with Company Employee can rebut that presumption if Employee proves that the\nintellectual property, proprietary rights and work product (i) was first conceived or developed after termination of Employee's employment with and\nby Company; (ii) was conceived or developed entirely on Employee's own time without using Company's equipment, supplies, facilities or\nconfidential and proprietary information; and (iii) did not result from any work performed by Employee for or on behalf of Company.\n(e) Employee acknowledges that there is no intellectual property, proprietary right or work product that Employee desires not to be deemed\nInvention Ideas or Intellectual Property and thus to exclude from the above provisions of this Agreement. To the best of Employee's knowledge,\nthere is no other existing contract in conflict with this Agreement or any other contract to assign ideas, processes, trademarks, service marks,\ninventions, technology, computer programs, original works of authorship, designs, formulas, discoveries, patents or copyrights that is now in\nexistence between Employee and any other person or entity.\n(f) This Section 7 shall not operate to require Employee to assign to Company any of Employee's rights to inventions, intellectual properties or\nwork products that would not be assignable under the provisions of California Labor Code Section 2870. Employee represents and warrants to\nCompany that this paragraph constitutes Company's written notification to Employee of the provisions of Section 2870 of the California Labor\nCode, and Employee represents and warrants to Company that Employee has reviewed Section 2870 of the California Labor Code.\n8. Unfair Competition and Protection of Proprietary Information.\n(a) Employee shall not at any time (including after Employee's employment with Company terminates) divulge, furnish or make accessible to\nanyone any of Company's Proprietary Information, or use in any way any of Company's Proprietary Information other than as reasonably required to\nperform Employee's duties under this Agreement. Employee shall not undertake any other acts or omissions that would reduce the value to Company\nof Company's Proprietary Information. The restrictions on Employee's use of Company's Proprietary Information shall not apply to knowledge or\ninformation that Employee can prove is part of the public domain through no fault of Employee. Employee agrees that such restrictions are fair and\nreasonable.\n(b) Employee agrees that Company's Proprietary Information constitutes a unique and valuable asset of Company that Company acquired at\ngreat time and expense, and which is secret and confidential and will only be available to or communicated to Employee in confidence in the course\nof Employee's provision of services to Company. Employee also agrees that any disclosure or other use of Company's Proprietary Information other\nthan for Company's sole benefit would be wrongful, would constitute unfair competition and will cause irreparable and incalculable harm to\nCompany and to its subsidiaries, affiliates and divisions. In addition to all other remedies Company may have, it shall have the right to seek and\nobtain appropriate injunctive and other equitable relief, including emergency relief, to prevent any violations of this Section 8.\n(c) Employee agrees that Company's employees constitute a valuable asset of Company. Employee agrees that Employee shall not, during the\nTerm and for a period of two years thereafter, directly or indirectly, for Employee or on behalf of any other person or entity, solicit any person who\nwas an employee of or consultant to Company (at any time while Employee is performing any services for Company, or at any time within twelve\nmonths prior to or after such solicitation) for a competing\n- 3\nbusiness or otherwise induce or attempt to induce any such persons to terminate their employment or relationship with Company or otherwise to\ndisrupt or interfere, or attempt to disrupt or interfere, with Company's employment or relationships with such persons. Employee agrees that any\nsuch solicitation, inducement or interference would be wrongful and would constitute unfair competition, and will cause irreparable and incalculable\nharm to Company. Further, Employee shall not engage in any other unfair competition with Company. Employee agrees that such restrictions are fair\nand reasonable.\n(d) Employee recognizes and agrees that Employee has no expectation of privacy with respect to Company's telecommunications, networking\nor information processing systems (including stored computer files, e-mail messages and voice messages), and that Employee's activity, and any\nfiles or messages, on or using any of those systems may be monitored at any time without notice.\n(e) As used in this Agreement, "Company's Proprietary Information" means any knowledge, trade secrets (including "trade secrets" as defined\nin Section 3426.1 of the California Civil Code), Invention Ideas, proprietary rights or proprietary information, intangible assets or property, and other\nintellectual property (whether or not copyrighted or copyrightable or patented or patentable), information and materials (including processes,\ntrademarks, trade names, service marks, service mark applications, copyrights, mask work rights, technology, patents, patent applications and works\nof authorship), in whatever form, including electronic form, and all goodwill relating or appurtenant thereto, owned or licensed by Company or any\nof its subsidiaries, affiliates or divisions, or directly or indirectly useful in any aspect of the business of Company or its subsidiaries, affiliates or\ndivisions, whether or not marked as confidential or proprietary and whether developed by Employee, by Company or its subsidiaries, affiliates or\ndivisions or by others. Without limiting the foregoing, Company's Proprietary Information includes (a) the names, locations, practices and\nrequirements of any of Company's customers, prospective customers, vendors, suppliers and personnel and any other persons having a business\nrelationship with Company; (b) confidential or secret development or research work of Company or its subsidiaries, affiliates or divisions, including\ninformation concerning any future or proposed services or products; (c) Company's accounting, cost, revenue and other financial records and\ndocuments and the contents thereof; (d) Company's documents, contracts, agreements, correspondence and other similar business records;\n(e) confidential or secret designs, software code, know how, processes, formulae, plans and devices; and (f) any other confidential or secret aspect of\nthe business of Company or its subsidiaries, affiliates or divisions.\n9. Employee's Activities. During the term of the Consulting Agreement, neither Employee nor any person or entity acting with or on\nEmployee's behalf, nor any person or entity under the control of or affiliated with Employee, shall, directly or indirectly, in any way Compete with\nthe Company. Employee agrees that, if Employee has any business to transact on Employee's own account that is similar to the business entrusted\nto\nEmployee by Company, Employee shall notify Company and always give preference to Company's business. Employee agrees that such restrictions\nare fair and reasonable. For purposes of this Agreement, "Compete" means doing any of the following: (i) selling products or services to any person\nor entity that was or is (at any time, including during the Term and the period when the provisions of this paragraph are in effect) a client or customer\nof Company (or its subsidiaries, affiliates or divisions) or on a list of prospective clients or customers of Company, or calling on, soliciting, taking\naway or accepting any such person or entity as a client or customer, or any attempt or offer to do any of the foregoing; (ii) entering into, or any\nattempt or offer to enter into, any business, enterprise or activity that is in any way similar to or otherwise competitive with the business that the\nCompany (or its subsidiaries, affiliates or divisions) conducted at any time during the Term or any time the provisions of this paragraph are in effect,\nor (iii) directly or indirectly assisting any person or entity to take or attempt or offer to take any of the actions described in the foregoing clauses (i)\nor (ii).\n10. Remedies.\n4\n(a) The Employee agrees that any violation or threatened violation of this Agreement will cause irreparable injury to the Company, entitling\nthe Company to obtain injunctive relief in addition to all legal remedies at its disposal.\n(b) In addition to all remedies available hereunder, at law or in equity, if Employee breaches any provision of Section 8 of this Agreement,\nCompany shall have the right to invoke any and all remedies provided under the California Uniform Trade Secrets Act (California Civil Code\n$83426, et seq.) or other statutes or common law remedies of similar effect.\n(c) The remedies provided to Company in this Section 10 are cumulative, and not exclusive, of any other remedies that may be available\nto\nCompany at law or in equity.\n11. No License. Nothing in this Agreement is intended to grant any rights to the Employee under any patent, copyright or other proprietary\nrights of the Company, nor shall this Agreement grant the Employee any rights in or to Confidential Information except as expressly set forth herein.\n12. Term. This Agreement shall survive the term of the Consulting Agreement and shall continue until such time as all Confidential\nInformation disclosed hereunder becomes publicly known and made generally available through no action or inaction of the Employee.\n13. Miscellaneous. This Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns. This Agreement\nshall be governed by the laws of the State of California, without reference to conflict of laws principles. This document contains the entire agreement\nbetween the parties with respect to the subject matter hereof. Any failure to enforce any provision of this Agreement shall not constitute a waiver\nthereof or of any other provision hereof. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties\nhereto.\nIN WITNESS WHEREOF, the parties hereto have executed or caused their duly authorized officers to execute this Agreement as of the date\nfirst above written.\nBIOLARGO, INC. ("COMPANY")\nBy /s/ Dennis Calvert\nDennis Calvert\nTitle: Chief Executive Officer\n"EMPLOYEE"\n/s/ Joseph L. Provenzano\n5 Appendix A\nNON-DISCLOSURE AGREEMENT\n(Employee)\nThis Non-Disclosure Agreement (“Agreement”) dated as of January 1, 2008 is entered in by and between BioLargo, Inc. (the “Company”) and\nJoseph Provenzano (the “Employee”), and sets forth the terms and conditions on which Company is willing to disclose certain material non-public\ninformation about the Company.\n1. Purpose. In connection with his retention as an employee to the Company pursuant to an agreement dated as of even date (the\n“Employment Agreement”), the Company may disclose to the Employee certain confidential technical and business information which the Company\nrequires the Employee to treat as confidential.\n2. Definition. “Confidential Information” means any information disclosed to the Employee by the Company, either directly or indirectly in\nwriting, orally or by inspection of tangible objects, including without limitation documents, prototypes and forecasted financial information.\nConfidential Information may also include information disclosed to the Company by third parties. Confidential Information shall not, however,\ninclude any information which the Employee can establish by written documentation (i) was publicly known and made generally available in the\npublic domain prior to the time of disclosure to the Employee by the Company; (ii) becomes publicly known and made generally available after\ndisclosure to the Employee by the Company through no action or inaction of the Employee; (iii) is in the possession of the Employee, without\nconfidentiality restrictions, at the time of disclosure by the Company as shown by the Employee’s files and records immediately prior to the time of\ndisclosure; (iv) is developed independently of the Confidential Information, as shown by written records prepared contemporaneously with such\nindependent development; or (v) is disclosed pursuant to the requirement of a United States government agency or judicial body, provided that the\nEmployee shall provide reasonable advice notice thereof to enable the Company to seek a protective order or otherwise prevent such disclosure.\n3. Non-use and Non-disclosure. The Employee agrees not to use any Confidential Information for any purpose except within the proper scope\nof his duties pursuant to the Consulting Agreement. The Employee agrees not to disclose any Confidential Information to third parties, except to\nthose individuals who, with the prior written consent of the Company, are designated as authorized to receive such Confidential Information in order\nfor the Employee to perform his duties and obligation sunder the Consulting Agreement. The Employee agrees that each third party receiving any\nConfidential Information will enter into a separate Non-Disclosure Agreement with the Company.\n4. Maintenance of Confidentiality. The Employee agrees that it shall take all commercially reasonable measures to protect the secrecy of and\navoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, the Employee shall take at least those\nmeasures that the Employee takes to protect its own confidential information of a similar nature and shall have its employees or advisors who have\naccess to Confidential Information sign a non-use and non-disclosure agreement in content substantially similar to the provisions hereof, prior to any\ndisclosure of Confidential Information to such employees. The Employee shall immediately notify the Company in the event of any unauthorized\nuse or disclosure of any Confidential Information.\n-1-\n5. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. COMPANY MAKES NO WARRANTIES, EXPRESS,\nIMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.\n6. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which are in the\npossession of the Employee shall be and remain the property of the Company and shall be promptly returned to the Company upon request for any\nreason or for no reason.\n7. Work Made for Hire.\n(a) Employee and/or designates of the Employee shall promptly and fully inform the Company of, and disclose to the Company , any and all\nideas, processes, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, fictitious business names,\ntechnology, patents, know-how, trade secrets, computer programs, original works of authorship, formulae, concepts, themes, inventions, designs,\ncreations, new works, derivative works and discoveries, and all applications, improvements, rights and claims related to any the foregoing, and all\nother intellectual property, proprietary rights and work product, whether or not patentable or copyrightable, registered or unregistered or domestic or\nforeign, and whether or not relating to a published work, that Employee develops, makes, creates, conceives or reduces to practice during the term of\nthe Consulting Agreement, whether alone or in collaboration with others (collectively, “Invention Ideas”). Employee hereby assigns to the\nCompany exclusively in perpetuity throughout the world all right, title and interest (choate or inchoate) in (i) the Invention Ideas, (ii) all precursors,\nportions and work in progress with respect thereto and all inventions, works of authorship, mask works, technology, information, know-how,\nmaterials and tools relating thereto or to the development, support or maintenance thereof and (iii) all copyrights, patent rights, trade secret rights,\ntrademark rights, mask works rights, sui generis database rights and all other intellectual and industrial property rights of any sort and all business,\ncontract rights, causes of action, and goodwill in, incorporated or embodied in, used to develop, or related to any of the foregoing (collectively\n“Intellectual Property”). All copyrightable Invention Ideas are intended by Employee to be a “work-made-for-hire” by Employee for Company and\nowned by Company pursuant to Section 201 (b) of Title 17 of the United States Code.\n(b) Employee shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such\nother agreements, certificates, instruments and documents, as the Company may reasonably request in order to obtain patent or copyright registration\non all Invention Ideas and Intellectual Property , and shall execute and deliver all documents, instruments and agreements, including the formal\nexecution of an assignment of copyright and/or patent application or issued patent, and do all things necessary or requested by the Company, in order\nto enable Company to ultimately and finally obtain and enforce full and exclusive title to all Invention Ideas and Intellectual Property and all rights\nassigned pursuant to this Section 7. Employee hereby appoints the Company as Employee’s irrevocable attorney-in-fact for the purpose of executing\nand delivering all such documents, instruments and agreements, and performing all such acts, with the same legal force and effect as if executed and\ndelivered and taken by Employee.\n(c) If for any reason the foregoing assignment is determined to be unenforceable Employee grants to Company a perpetual, irrevocable,\nworldwide, royalty-free, exclusive, sub-licensable right and license to exploit and exercise all such Invention Ideas and Intellectual Property.\n(d) Because of the difficulty of establishing when Employee first conceives of or develops Intellectual Property, proprietary rights or work\nproduct or whether such Intellectual Property, proprietary rights or work product results from access to Company’s confidential and proprietary\ninformation or\n-2-\nequipment, facilities or data, Employee agrees that any Intellectual Property, proprietary rights and work product shall be presumed to be an\nInvention Idea if it is conceived, developed, used, sold, exploited or reduced to practice by Employee or with the aid of Employee within one year\nafter the normal termination of Employee’s employment with Company. Employee can rebut that presumption if Employee proves that the\nintellectual property, proprietary rights and work product (i) was first conceived or developed after termination of Employee’s employment with and\nby Company; (ii) was conceived or developed entirely on Employee’s own time without using Company’s equipment, supplies, facilities or\nconfidential and proprietary information; and (iii) did not result from any work performed by Employee for or on behalf of Company.\n(e) Employee acknowledges that there is no intellectual property, proprietary right or work product that Employee desires not to be deemed\nInvention Ideas or Intellectual Property and thus to exclude from the above provisions of this Agreement. To the best of Employee’s knowledge,\nthere is no other existing contract in conflict with this Agreement or any other contract to assign ideas, processes, trademarks, service marks,\ninventions, technology, computer programs, original works of authorship, designs, formulas, discoveries, patents or copyrights that is now in\nexistence between Employee and any other person or entity.\n(f) This Section 7 shall not operate to require Employee to assign to Company any of Employee’s rights to inventions, intellectual properties or\nwork products that would not be assignable under the provisions of California Labor Code Section 2870. Employee represents and warrants to\nCompany that this paragraph constitutes Company’s written notification to Employee of the provisions of Section 2870 of the California Labor\nCode, and Employee represents and warrants to Company that Employee has reviewed Section 2870 of the California Labor Code.\n8. Unfair Competition and Protection of Proprietary Information.\n(a) Employee shall not at any time (including after Employee’s employment with Company terminates) divulge, furnish or make accessible to\nanyone any of Company’s Proprietary Information, or use in any way any of Company’s Proprietary Information other than as reasonably required to\nperform Employee’s duties under this Agreement. Employee shall not undertake any other acts or omissions that would reduce the value to Company\nof Company’s Proprietary Information. The restrictions on Employee’s use of Company’s Proprietary Information shall not apply to knowledge or\ninformation that Employee can prove is part of the public domain through no fault of Employee. Employee agrees that such restrictions are fair and\nreasonable.\n(b) Employee agrees that Company’s Proprietary Information constitutes a unique and valuable asset of Company that Company acquired at\ngreat time and expense, and which is secret and confidential and will only be available to or communicated to Employee in confidence in the course\nof Employee’s provision of services to Company. Employee also agrees that any disclosure or other use of Company’s Proprietary Information other\nthan for Company’s sole benefit would be wrongful, would constitute unfair competition and will cause irreparable and incalculable harm to\nCompany and to its subsidiaries, affiliates and divisions. In addition to all other remedies Company may have, it shall have the right to seek and\nobtain appropriate injunctive and other equitable relief, including emergency relief, to prevent any violations of this Section 8.\n(c) Employee agrees that Company’s employees constitute a valuable asset of Company. Employee agrees that Employee shall not, during the\nTerm and for a period of two years thereafter, directly or indirectly, for Employee or on behalf of any other person or entity, solicit any person who\nwas an employee of or consultant to Company (at any time while Employee is performing any services for Company, or at any time within twelve\nmonths prior to or after such solicitation) for a competing\n-3-\nbusiness or otherwise induce or attempt to induce any such persons to terminate their employment or relationship with Company or otherwise to\ndisrupt or interfere, or attempt to disrupt or interfere, with Company’s employment or relationships with such persons. Employee agrees that any\nsuch solicitation, inducement or interference would be wrongful and would constitute unfair competition, and will cause irreparable and incalculable\nharm to Company. Further, Employee shall not engage in any other unfair competition with Company. Employee agrees that such restrictions are fair\nand reasonable.\n(d) Employee recognizes and agrees that Employee has no expectation of privacy with respect to Company’s telecommunications, networking\nor information processing systems (including stored computer files, e-mail messages and voice messages), and that Employee’s activity, and any\nfiles or messages, on or using any of those systems may be monitored at any time without notice.\n(e) As used in this Agreement, “Company’s Proprietary Information” means any knowledge, trade secrets (including “trade secrets” as defined\nin Section 3426.1 of the California Civil Code), Invention Ideas, proprietary rights or proprietary information, intangible assets or property, and other\nintellectual property (whether or not copyrighted or copyrightable or patented or patentable), information and materials (including processes,\ntrademarks, trade names, service marks, service mark applications, copyrights, mask work rights, technology, patents, patent applications and works\nof authorship), in whatever form, including electronic form, and all goodwill relating or appurtenant thereto, owned or licensed by Company or any\nof its subsidiaries, affiliates or divisions, or directly or indirectly useful in any aspect of the business of Company or its subsidiaries, affiliates or\ndivisions, whether or not marked as confidential or proprietary and whether developed by Employee, by Company or its subsidiaries, affiliates or\ndivisions or by others. Without limiting the foregoing, Company’s Proprietary Information includes (a) the names, locations, practices and\nrequirements of any of Company’s customers, prospective customers, vendors, suppliers and personnel and any other persons having a business\nrelationship with Company; (b) confidential or secret development or research work of Company or its subsidiaries, affiliates or divisions, including\ninformation concerning any future or proposed services or products; (c) Company’s accounting, cost, revenue and other financial records and\ndocuments and the contents thereof; (d) Company’s documents, contracts, agreements, correspondence and other similar business records;\n(e) confidential or secret designs, software code, know how, processes, formulae, plans and devices; and (f) any other confidential or secret aspect of\nthe business of Company or its subsidiaries, affiliates or divisions.\n9. Employee’s Activities. During the term of the Consulting Agreement, neither Employee nor any person or entity acting with or on\nEmployee’s behalf, nor any person or entity under the control of or affiliated with Employee, shall, directly or indirectly, in any way Compete with\nthe Company. Employee agrees that, if Employee has any business to transact on Employee’s own account that is similar to the business entrusted to\nEmployee by Company, Employee shall notify Company and always give preference to Company’s business. Employee agrees that such restrictions\nare fair and reasonable. For purposes of this Agreement, “Compete” means doing any of the following: (i) selling products or services to any person\nor entity that was or is (at any time, including during the Term and the period when the provisions of this paragraph are in effect) a client or customer\nof Company (or its subsidiaries, affiliates or divisions) or on a list of prospective clients or customers of Company, or calling on, soliciting, taking\naway or accepting any such person or entity as a client or customer, or any attempt or offer to do any of the foregoing; (ii) entering into, or any\nattempt or offer to enter into, any business, enterprise or activity that is in any way similar to or otherwise competitive with the business that the\nCompany (or its subsidiaries, affiliates or divisions) conducted at any time during the Term or any time the provisions of this paragraph are in effect,\nor (iii) directly or indirectly assisting any person or entity to take or attempt or offer to take any of the actions described in the foregoing clauses (i)\nor (ii).\n10. Remedies.\n-4-\n(a) The Employee agrees that any violation or threatened violation of this Agreement will cause irreparable injury to the Company, entitling\nthe Company to obtain injunctive relief in addition to all legal remedies at its disposal.\n(b) In addition to all remedies available hereunder, at law or in equity, if Employee breaches any provision of Section 8 of this Agreement,\nCompany shall have the right to invoke any and all remedies provided under the California Uniform Trade Secrets Act (California Civil Code\n§§3426, et seq.) or other statutes or common law remedies of similar effect.\n(c) The remedies provided to Company in this Section 10 are cumulative, and not exclusive, of any other remedies that may be available to\nCompany at law or in equity.\n11. No License. Nothing in this Agreement is intended to grant any rights to the Employee under any patent, copyright or other proprietary\nrights of the Company, nor shall this Agreement grant the Employee any rights in or to Confidential Information except as expressly set forth herein.\n12. Term. This Agreement shall survive the term of the Consulting Agreement and shall continue until such time as all Confidential\nInformation disclosed hereunder becomes publicly known and made generally available through no action or inaction of the Employee.\n13. Miscellaneous. This Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns. This Agreement\nshall be governed by the laws of the State of California, without reference to conflict of laws principles. This document contains the entire agreement\nbetween the parties with respect to the subject matter hereof. Any failure to enforce any provision of this Agreement shall not constitute a waiver\nthereof or of any other provision hereof. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties\nhereto.\nIN WITNESS WHEREOF, the parties hereto have executed or caused their duly authorized officers to execute this Agreement as of the date\nfirst above written.\nBIOLARGO, INC. (“COMPANY”)\nBy /s/ Dennis Calvert\nDennis Calvert\nTitle: Chief Executive Officer\n“EMPLOYEE”\n/s/ Joseph L. Provenzano\n-5- 5eb2af4610325bb5c670033270aa0bf1.pdf jurisdiction EX-10 .18 2 a06-2768 _1ex10d18.htm MATERIAL CONTRACTS\nEXHIBIT B\nNON-SOLICITATION AND NON -DISCLOSURE AGREEMENT\nTHIS NON-SOLICITATION AND NON -DISCLOSURE AGREEMENT (“Agreement”) is a part of the terms and conditions of the award issued by The St. Paul Travelers Companies, Inc., a Minnesota corporation with its principal place\nof business located in St. Paul, Minnesota and its affiliated entities (collectively, the “Company”), in favor of the participant named in the term sheet (the “Employee”) to which this Agreement is attached as an exhibit.\nWITNESSETH:\nWHEREAS, the Employee is employed by the Company; and\nWHEREAS, the Company is engaged in the business of marketing and selling insurance and insurance-related products\nthroughout the United States.\nNOW, THEREFORE, in consideration of the promises and the mutual covenants and obligations hereinafter set forth, the parties\nagree as follows:\n1.\nConsideration. As consideration for the execution of this Agreement, the Employee acknowledges receipt of an award(s)\nissued pursuant to the Company’s 2004 Stock Incentive Plan (the “Consideration”), as evidenced by term sheet(s) setting forth the\nterms and conditions of such award(s) to which this Agreement is attached as an exhibit, which constitutes good, valuable and\nindependent consideration for all of Employee’s covenants and obligations in this Agreement and above and beyond any\ncompensation Employee is entitled to receive from the Company.\n2.\nNon-Disclosure of Confidential Information.\n(a)\nEmployee recognizes that the Company has developed information that is confidential, proprietary and/or nonpublic that is\nrelated to its business, operations, services, finances, clients, customers, policyholders, vendors and agents (“Confidential\nInformation”). Employee understands and agrees that he/she is prohibited from using, disclosing, divulging or misappropriating any\nConfidential Information for his/her own personal benefit or for the benefit of any person or entity, except that Employee\nmay disclose Confidential Information pursuant to a properly issued subpoena, court order, other legal process, or official inquiry of a\nfederal, state or local taxing authority, or other governmental agency with a legitimate legal right to know the Confidential\nInformation. If disclosure is compelled of Employee by subpoena, court order or other legal process, or as otherwise required by law,\nEmployee agrees to notify Company as soon as notice of such process is received and before disclosure and/or appearance takes\nplace. Employee will use reasonable and prudent care to safeguard and prevent the unauthorized use or disclosure of Confidential\nInformation. Confidential Information shall not include any information that: (a) is or becomes a part of the public domain through\nno act or omission of Employee or is otherwise available to the public other than by breach of this Agreement; (b) was in Employee’s\nlawful possession prior to the disclosure and had not been obtained by Employee either directly or indirectly as a result of\nEmployee’s employment with or other service to the Company; (c) is disclosed to Employee by a third party who has authority from\nthe Company to make such disclosure and such disclosure to Employee is not confidential; or (d) is independently developed by\nEmployee outside of Employee’s employment with the Company and without the use of any Confidential Information. Employee\nfurther acknowledges that Employee, in the course of employment, has had and will have access to such Confidential Information.\n(b)\nEmployee agrees that every document, computer disk, electronic file, computerized information, computer software\nprogram, notation, record, diary, memorandum, development, investigation, or the like, and any method or manner of doing business\nof the Company containing Confidential Information made or acquired by the Employee during employment by the Company is and\nshall be the sole and exclusive property of Company. The Employee will deliver the same (and every copy, disk, abstract, summary,\nor reproduction of the same made by or for the Employee or acquired by the Employee) whenever the Company may so require and\nin any event prior to or at the termination of employment. Nothing in Section 2 is intended or shall be interpreted to mean that the\nCompany may withhold information, including computerized information, relating to Employee’s personal contacts and personal\ninformation that may be stored or contained in Employee’s physical or electronic files. The Company further agrees not to\nunreasonably withhold information relating to Employee’s business-related contacts, to the extent such information falls outside the\ndefinition of Confidential Information set forth in Section 2(a) above.\n5\n3.\nNon-Solicitation/Non-Interference.\n(a)\nThe parties understand and agree that this Agreement is intended to protect the Company against the Employee raiding its\nemployees and/or its business during the twelve (12) month period following the Separation Date (whether voluntary or involuntary)\n(the “Restricted Period”), while recognizing that after conclusion of his/her employment (the “Separation Date”), Employee is still\npermitted to freely compete with the Company, except to the extent Confidential Information is used in such solicitation and subject\nto certain restrictions set forth below. Further, nothing in this Agreement is intended to grant or limit any rights or claims as to any\nfuture employer of Employee. To this end, any court considering the enforcement of this Agreement for a breach of this Agreement,\nmust accept this statement of intent.\n(b)\nAfter Employee has left the employment of the Company and during the Restricted Period, Employee will not seek to\nrecruit or solicit, or assist in recruiting or soliciting, participate in or promote the solicitation of, interfere with, attempt to influence or\notherwise affect the employment of any person who was or is employed by the Company at any time during the last three months of\nEmployee’s employment or thereafter. Further, Employee shall not, on behalf of himself/herself or any other person, hire, employ or\nengage any such person. The parties agree that Employee shall not directly engage in the aforesaid conduct through a third party for\nthe purpose of colluding to avoid the restrictions in this Agreement. However, nothing in this Agreement precludes Employee from\ndirecting a third party (including but not limited to employees of his/her subsequent employer or a search firm) to broadly solicit,\nrecruit, and hire individuals, some of whom may be employees of the Company, provided that Employee does not specifically direct\nsuch third party to specifically target the Company’s employees generally or specific individual employees of the Company.\n(c)\nAfter Employee has left the employment of the Company, accepts a position as an employee, consultant or contractor with\na direct competitor of the Company, and during the Restricted Period, Employee will not utilize Confidential Information to seek to\nsolicit or assist in soliciting, participate in or otherwise promote the solicitation of, interference with, attempt to influence or\notherwise affect any person or entity, who is a client, customer, policyholder, or agent of the Company, to discontinue business with\nthe Company, and/or move that business elsewhere. Employee also agrees not to be directly and personally involved in the\nnegotiation or solicitation of any individual book roll over(s) or other book of business transfer arrangements involving the transfer of\nbusiness away from Company, even if Confidential Information is not involved. However, nothing in this Agreement precludes the\nEmployee from directing a third party (including but not limited to employees of his/her subsequent employer) to solicit, compete for,\nnegotiate and execute book roll over deals or other book of business transfer arrangements provided that (i) Confidential Information\nprovided by the Employee is not used, (ii) Employee is not personally and directly involved in such negotiations, and (iii) Employee\ndoes not direct such third party to target specific agents of Company. Furthermore, nothing in this Agreement precludes the\nEmployee from freely competing with the Company including but not limited to competing on an account by account or deal by deal\nbasis to the extent that he/she does not use Confidential Information.\n4.\nForfeiture of Consideration; Other Remedies. Employee agrees that if Employee breaches this Agreement during the\nRestricted Period, Employee will immediately forfeit any award that has not yet been paid, exercised or vested and that serves as\nConsideration for this Agreement. In addition, the Company will be entitled to recapture from Employee any and all compensatory\nvalue that Employee received within twelve months prior to or twelve months after the Separation Date from any award that has\nalready been paid, exercised or vested and that serves as Consideration for this Agreement. The value subject to recapture includes\nthe amount of any cash payment made to Employee upon exercise or settlement of the award, and/or the amount included as\ncompensation in the taxable income of Employee upon vesting or exercise of the award. Employee will promptly pay the full amount\nsubject to recapture to the Company upon demand in the form of cash or shares of Company Common Stock with a current fair\nmarket value equal to the amount subject to recapture. In addition to the remedies set forth in Sections 2, 3 and 4 of this Agreement,\nCompany may avail itself of any other remedies available under statute or common law.\n5.\nConsent to Jurisdiction. Jurisdiction and venue for enforcement of this Agreement, and for resolution of any dispute\nunder this Agreement, shall be exclusively in the federal or state courts in the state and county where the Employee resides at the time\nthat the Company commences an action under this Agreement. Employee agrees to notify Company of any changes in his/her\nresidence after the Separation Date.\n6.\nModification. This Agreement may not be terminated or modified without the express written consent of both the\nEmployee and the Company.\n6\n7.\nEmployment At Will. Employee specifically recognizes and agrees that nothing in this Agreement shall be deemed to\nestablish an employment relationship on a basis other than terminable at will, that the Company is not obligated to continue\nEmployee’s employment for any particular period, and that this Agreement is not an employment agreement for continued\nemployment.\n8.\nGoverning Law. This Agreement shall be construed, interpreted and applied in accordance with the laws of the State of\nMinnesota.\n9.\nWaiver. The waiver of a breach of any provision of this Agreement shall not operate as or be construed as a waiver of any\nsubsequent breach of this Agreement.\n10.\nSeverability. If any provision, section or subsection of this Agreement is adjudged by any court to be void or unenforceable\nin whole or in part, this adjudication shall not affect the validity of the remainder of the Agreement, including any other provision,\nsection or subsection. Each provision, section, and subsection of this Agreement is separable from every other provision, section and\nsubsection and constitutes a separate and distinct covenant. Both Employee and the Company agree that if any court rules that a\nrestriction contained in this Agreement is unenforceable as written, the parties will: (a) jointly request and consent to the reformation\nof the restriction by the court to the extent necessary to make the Agreement enforceable, and (b) not to seek to enforce the ruling in\nany state other than the state where the ruling was made.\n11.\nAssignment. This Agreement shall be binding upon and inure to the benefit of the Company, its successors and assigns and\nto the benefit of Employee, his/her heirs and legal representatives. This Agreement is not assignable by Employee. This Agreement\nmay be assigned by the Company. Employee transfers to any corporate parent, affiliate or subsidiary of the Company shall constitute\nan assignment.\n12.\nEntire Agreement. This Agreement and any award agreement or term sheet documenting the equity award(s) that\nconstitutes the Consideration constitute the entire Agreement and understanding between the Company and the Employee concerning\nthe subject matters hereof. No modification, amendment, termination or waiver of this Agreement shall be binding unless in writing\nand signed by a duly authorized representative of the Company. Employee acknowledges and represents that s/he has carefully read\nthis Agreement, that s/he has considered the terms and conditions contained herein, and that s/he voluntarily assents to all of these\nterms and conditions, and that s/he is accepting this Agreement by Employee’s own free will.\n7\nTHE ST. PAUL TRAVELERS COMPANIES , INC\nPARTICIPANT’S ACCEPTANCE\n(Click on the button below to accept the terms of your Agreement, including the terms of the Non-Solicitation\nand Non-Disclosure Agreement. You will not be able to undo this change.)\nAgree/Accept\n(Click on the button below to return to ECW and accept the terms of your Agreement at another time. You\nwill not be able to undo this change.)\nReturn to Equity Compensation Web\n8 EX-10.18 2 a06-2768_leX10d18.him MATERIAL CONTRACTS\nEXHIBIT B\nNON-SOLICITATION AND NON-DISCLOSURE AGREEMENT\n \nTHIS NON-SOLICITATION AND NO N-DISCLOSURE AGREEMENT ("Agreement") is a part of the terms and conditions of the award issued by The St. Paul Travelers Companies, Inc., a Minnesota corporation with its principal place\nof business located in St. Paul, Minnesota and its affiliated entities (collectively, the "Company"), in favor of the participant named in the term sheet (the "Employee”) to which this Agreement is attached as an exhibit\nWITNESSETH:\nWHEREAS, the Employee is employed by the Company; and\nWHEREAS, the Company is engaged in the business of marketing and selling insurance and insurancerelated products\nthroughout the United States.\nNOW, THEREFORE, in consideration of the promises and the mutual covenants and obligations hereinafter set forth, the parties\nagree as follows:\n1. Consideration. As consideration for the execution of this Agreement, the Employee acknowledges receipt of an award(s)\nissued pursuant to the Company's 2004 Stock Incentive Plan (the ”Consideration”), as evidenced by term sheet(s) setting forth the\nterms and conditions of such award(s) to which this Agreement is attached as an exhibit, which constitutes good, valuable and\nindependent consideration for all of Employee' 5 covenants and obligations in this Agreement and above and beyond any\ncompensation Employee is entitled to receive from the Company.\n2. Non-Disclosure of C onfidential Information.\n(a; Employee recognizes that the Company has developed information that is confidential, proprietary and/or nonpublic that is\nrelated to its business, operations, services, finances, clients, customers, policyholders, vendors and agents (”Confidential\nInformation”). Employee understands and agrees that he/she is prohibited from using, disclosing, divulging or misappropriating any\nConfidential Information for his/her own personal benefit or for the benefit of any person or entity, except that Employee\nmay disclose Confidential Information pursuant to a properly issued subpoena, court order, other legal process, or official inquiry of a\nfederal, state or local taxing authority, or other governmental agency with a legitimate legal right to know the Confidential\nInformation. If disclosure is compelled of Employee by subpoena, court order or other legal process, or as otherwise required by law,\nEmployee agrees to notify Company as soon as notice of such process is received and before disclosure and/or appearance takes\nplace. Employee will use reasonable and prudent care to safeguard and prevent the unauthorized use or disclosure of Confidential\nInformation. Confidential Information shall not include any information that: (a) is or becomes a part of the public domain through\nno act or omission of Employee or is otherwise available to the public other than by breach of this Agreement; (b) was in Employee' 5\nlawful possession prior to the disclosure and had not been obtained by Employee either directly or indirectly as a result of\nEmployee' 5 employment with or other service to the Company; (c) is disclosed to Employee by a third party who has authority from\nthe Company to make such disclosure and such disclosure to Employee is not confidential; or (d) is independently developed by\nEmployee outside of Employee' 5 employment with the Company and without the use of any Confidential Information. Employee\nfurther acknowledges that Employee, in the course of employment, has had and will have access to such Confidential Information.\n(h) Employee agrees that every document, computer disk, electronic file, computerized information, computer software\nprogram, notation, record, diary, memorandum, development, investigation, or the like, and any method or manner of doing business\nof the Company containing Confidential Information made or acquired by the Employee during employment by the Company is and\nshall be the sole and exclusive property of Company. The Employee will deliver the same (and every copy, disk, abstract, summary,\nor reproduction of the same made by or for the Employee or acquired by the Employee) whenever the Company may so require and\nin any event prior to or at the termination of employment. Nothing in Section 2 is intended or shall be interpreted to mean that the\nCompany may withhold information, including computerized information, relating to Employee' 5 personal contacts and personal\ninformation that may be stored or contained in Employee' 5 physical or electronic files. The Company further agrees not to\nunreasonably withhold information relating to Employee’s business-related contacts, to the extent such information falls outside the\ndefinition of Confidential Information set forth in Section 2(a) above.\n3. Non-Solicitation/Non-Interference.\n(a) The parties understand and agree that this Agreement is intended to protect the Company against the Employee raiding its\nemployees and/or its business during the twelve (12) month period following the Separation Date (whether voluntary or involuntary)\n(the ”Restricted Period”), while recognizing that after conclusion of his/her employment (the ”Separation Date"), Employee is still\npermitted to freely compete with the Company, except to the extent Confidential Information is used in such solicitation and subject\nto certain restrictions set forth below. Further, nothing in this A greement is intended to grant or limit any rights or claims as to any\nfuture employer of Employee. To this end, any court considering the enforcement of this Agreement for a breach of this Agreement,\nmust accept this statement of intent.\n(h) After Employee has left the employment of the Company and during the Restricted Period, Employee will not seek to\nrecruit or solicit, or assist in recruiting or soliciting, participate in or promote the solicitation of, interfere with, attempt to influence or\notherwise affect the employment of any person who was or is employed by the Company at any time during the last three months of\nEmployee’ 5 employment or thereafter. Further, Employee shall not, on behalf of himself/herself or any other person, hire, employ or\nengage any such person. The parties agree that Employee shall not directly engage in the aforesaid conduct through a third party for\nthe purpose of colluding to avoid the restrictions in this Agreement. However, nothing in this Agreement precludes Employee from\ndirecting a third party (including but not limited to employees of his/her subsequent employer or a search firm) to broadly solicit,\nrecruit, and hire individuals, some of whom may be employees of the Company, provided that Employee does not specifically direct\nsuch third party to specifically target the Company’ 5 employees generally or specific individual employees of the Company.\n(a After Employee has left the employment of the Company, accepts a position as an employee, consultant or contractor with\na direct competitor of the Company, and during the Restricted Period, Employee will not utilize Confidential Information to seek to\nsolicit or assist in soliciting, participate in or otherwise promote the solicitation of, interference with, attempt to influence or\notherwise affect any person or entity, who is a client, customer, policyholder, or agent of the Company, to discontinue business with\nthe Company, and/or move that business elsewhere. Employee also agrees not to be directly and personally involved in the\nnegotiation or solicitation of any individual book roll over(s) or other book of business transfer arrangements involving the transfer of\nbusiness away from Company, even if Confidential Information is not involved. However, nothing in this A greement precludes the\nEmployee from directing a third party (including but not limited to employees of his/her subsequent employer) to solicit, compete for,\nnegotiate and execute book roll over deals or other book of business transfer arrangements provided that (i) Confidential Information\nprovided by the Employee is not used, (ii) Employee is not personally and directly involved in such negotiations, and (iii) Employee\ndoes not direct such third party to target specific agents of Company. Furthermore, nothing in this Agreement precludes the\nEmployee from freely competing with the Company including but not limited to competing on an account by account or deal by deal\nbasis to the extent that he/she does not use Confidential Information.\n4. Forfeiture of C onsideration- 0 ther Remedies. Employee agrees that if Employee breaches this A greement during the\nRestricted Period, Employee will immediately forfeit any award that has not yet been paid, exercised or vested and that serves as\nConsideration for this Agreement. In addition, the Company will be entitled to recapture from Employee any and all compensatory\nvalue that Employee received within twelve months prior to or twelve months after the Separation Date from any award that has\nalready been paid, exercised or vested and that serves as Consideration for this Agreement. The value subject to recapture includes\nthe amount of any cash payment made to Employee upon exercise or settlement of the award, and/or the amount included as\ncompensation in the taxable income of Employee upon vesting or exercise of the award. Employee will promptly pay the full amount\nsubject to recapture to the Company upon demand in the form of cash or shares of Company Common Stock with a current fair\nmarket value equal to the amount subject to recapture. In addition to the remedies set forth in Sections 2, 3 and 4 of this Agreement,\nCompany may avail itself of any other remedies available under statute or common law.\n \n5. C onsent to | urisdiction. Jurisdiction and venue for enforcement of this A greement, and for resolution of any dispute\nunder this Agreement, shall be exclusively in the federal or state courts in the state and county where the Employee resides at the time\nthat the Company commences an action under this Agreement. Employee agrees to notify Company of any changes in his/her\nresidence after the Separation Date.\na. Modification. This Agreement may not be terminated or modified without the express written consent of both the\nEmployee and the Company.\n6\n7. Employment At Will. Employee specifically recognizes and agrees that nothing in this Agreement shall be deemed to\nestablish an employment relationship on a basis other than terminable at will, that the Company is not obligated to continue\nEmployee’ s employment for any particular period, and that this Agreement is not an employment agreement for continued\nemployment.\n8. G overning Law. This Agreement shall be construed, interpreted and applied in accordance with the laws of the State of\nMinnesota.\n9. Waiver. The waiver of a breach of any provision of this Agreement shall not operate as or be construed as a waiver of any\nsubsequent breach of this A greement.\n10. Severabilig If any provision, section or subsection of this Agreement is adjudged by any court to be void or unenforceable\nin whole or in part, this adjudication shall not affect the validity of the remainder of the Agreement, including any other provision,\nsection or subsection. Each provision, section, and subsection of this Agreement is separable from every other provision, section and\nsubsection and constitutes a separate and distinct covenant. Both Employee and the Company agree that if any court rules that a\nrestriction contained in this Agreement is unenforceable as written, the parties will: (a) jointly request and consent to the reformation\nof the restriction by the court to the extent necessary to make the Agreement enforceable, and (b) not to seek to enforce the ruling in\nany state other than the state where the ruling was made.\n11. Assignment. This Agreement shall be binding upon and inure to the benefit of the Company, its successors and assigns and\nto the benefit of Employee, his/her heirs and legal representatives. This A greement is not assignable by Employee. This Agreement\nmay be assigned by the Company. Employee transfers to any corporate parent, affiliate or subsidiary of the Company shall constitute\nan assignment.\n12. Entire Agreement. This Agreement and any award agreement or term sheet documenting the equity award(s) that\nconstitutes the Consideration constitute the entire Agreement and understanding between the Company and the Employee concerning\nthe subject matters hereof. No modification, amendment, termination or waiver of this A greement shall be binding unless in writing\nand signed by a duly authorized representative of the Company. Employee acknowledges and represents that s/he has carefully read\nthis Agreement, that s/he has considered the terms and conditions contained herein, and that s/he voluntarily assents to all of these\nterms and conditions, and that s/he is accepting this Agreement by Employee’ s own free will.\nTHE ST. PAUL TRAVELERS COMPANIES, INC\nPARTICIPANT’S ACCEPTANCE\n(Click on the button below to accept the terms of your Agreement, including the terms of the Non-Solicitation\nand Non-Disclosure Agreement. Y ou will not be able to undo this change.)\nA gree/A ocept\n(Click on the button below to return to ECW and accept the terms of your Agreement at another time. You\nwill not be able to undo this change.)\nReturn to Equity C ompensafion Web\n EX-10.18 a06-2768 lex10d18.htm MATERIAL CONTRACTS\nEXHIBIT B\nNON-SOLICITATION AND NON-DISCLOSURE AGREEMENT\nTHIS NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT ("Agreement") is a part of the terms and conditions of the award issued by The St. Paul Travelers Companies, Inc. a Minnesota corporation with its principal place\nof business located in St. Paul, Minnesota and its affiliated entities (collectively the "Company") in favor of the participant named in the term sheet (the "Employee") to which this Agreement is attached as an exhibit.\nWITNESSETH:\nWHEREAS, the Employee is employed by the Company; and\nWHEREAS, the Company is engaged in the business of marketing and selling insurance and insurance-related products\nthroughout the United States.\nTHEREFORE, in consideration of the promises and the mutual covenants and obligations hereinafter set forth, the parties\nagree as follows:\n1.\nConsideration. As consideration for the execution of this greement, the Employee acknowledges receipt of an award(s)\nissued\npursuant\nto\nthe\nCompany's\n2004\nStock\nIncentive\nPlan\n(the\n"Consideration"),\nas\nevidenced\nby\nterm\nsheet(s)\nsetting\nforth\nthe\nterms and conditions of such award(s) to which this greement is attached as an exhibit, which constitutes good, valuable and\nindependent consideration for all of Employee's covenants and obligations in this A greement and above and beyond any\ncompensation Employee is entitled to receive from the Company.\n2.\nNon-Disclosure of Confidential Information.\n(a)\nEmployee recognizes that the Company has developed information that is confidential, proprietary and/or nonpublic that is\nrelated to its business, operations, services, finances, clients, customers, policyholders, vendors and agents ("Confidential\nInformation"). Employee understands and agrees that he/she is prohibited from using, disclosing, divulging or misappropriating any\nConfidential Information for his/her own personal benefit or for the benefit of any person or entity, except that Employee\nmay disclose Confidential Information pursuant to a properly issued subpoena, court order, other legal process, or official inquiry of a\nfederal, state or local taxing authority, or other governmental agency with a legitimate legal right to know the Confidential\nInformation. If disclosure is compelled of Employee by subpoena, court order or other legal process, or as otherwise required by law,\nEmployee agrees to notify Company as soon as notice of such process is received and before disclosure and/or appearance takes\nplace. Employee will use reasonable and prudent care to safeguard and prevent the unauthorized use or disclosure of Confidential\nInformation. Confidential Information shall not include any information that: (a) is or becomes a part of the public domain through\nno act or omission of Employee or is otherwise available to the public other than by breach of this A greement; (b) was in Employee's\nlawful possession prior to the disclosure and had not been obtained by Employee either directly or indirectly as a result of\nEmployee's employment with or other service to the Company; (c) is disclosed to Employee by a third party who has authority from\nthe Company to make such disclosure and such disclosure to Employee is not confidential; or (d) is independently developed by\nEmployee outside of Employee's employment with the Company and without the use of any Confidential Information. Employee\nfurther acknowledges that Employee, in the course of employment has had and will have access to such Confidential Information.\n(b)\nEmployee agrees that every document, computer disk, electronic file, computerized information, computer software\nprogram, notation, record, diary, memorandum, development, investigation, or the like, and any method or manner of doing business\nof\nthe Company containing Confidential Information made or acquired by the Employee during employment by the Company is and\nshall be the sole and exclusive property of Company. The Employee will deliver the same (and every copy, disk, abstract, summary,\nor reproduction of the same made by or for the Employee or acquired by the Employee) whenever the Company may so require and\nin\nany event prior to or at the termination of employment Nothing in Section 2 is intended or shall be interpreted to mean that the\nCompany may withhold information, including computerized information, relating to Employee's personal contacts and personal\ninformation that may be stored or contained in Employee's physical or electronic files. The Company further agrees not to\nunreasonably withhold information relating to Employee's business-related contacts, to the extent such information falls outside the\ndefinition of Confidential Information set forth in Section 2(a) above.\n3.\nNon-Solicitation/Non-Interference.\n(a)\nThe parties understand and agree that this A greement is intended to protect the Company against the Employee raiding its\nemployees and/or its business during the twelve (12) month period following the Separation Date (whether voluntary or involuntary)\n(the "Restricted Period"), while recognizing that after conclusion of his/her employment (the "Separation Date"), Employee is still\npermitted to freely compete with the Company, except to the extent Confidential Information is used in such solicitation and subject\nto certain restrictions set forth below. Further, nothing in this A greement is intended to grant or limit any rights or claims as to any\nfuture employer of Employee. To this end, any court considering the enforcement of this A greement for a breach of this A greement,\nmust accept this statement of intent.\n(b)\nAfter Employee has left the employment of the Company and during the Restricted Period, Employee will not seek to\nrecruit or solicit, or assist in recruiting or soliciting, participate in or promote the solicitation of, interfere with, attempt to influence or\notherwise affect the employment of any person who was or is employed by the Company at any time during the last three months of\nEmployee's employment or thereafter. Further, Employee shall not, on behalf of himself/herself or any other person, hire, employ or\nengage any such person The parties agree that Employee shall not directly engage in the aforesaid conduct through a third party for\nthe purpose of colluding to avoid the restrictions in this greement. However, nothing in this A greement precludes Employee from\ndirecting a third party (including but not limited to employees of his/her subsequent employer or a search firm) to broadly solicit,\nrecruit, and hire individuals, some of whom may be employees of the Company, provided that Employee does not specifically direct\nsuch third party to specifically target the Company's employees generally or specific individual employees of the Company.\n(c)\nfter Employee has left the employment of the Company, accepts a position as an employee, consultant or contractor with\na direct competitor of the Company, and during the Restricted Period, Employee will not utilize Confidential Information to seek to\nsolicit or assist in soliciting, participate in or otherwise promote the solicitation of, interference with, attempt to influence or\notherwise affect any person or entity, who is a client, customer, policyholder, or agent of the Company, to discontinue business with\nthe Company, and/or move that business elsewhere. Employee also agrees not to be directly and personally involved in the\nnegotiation or solicitation of any individual book roll over(s) or other book of business transfer arrangements involving the transfer of\nbusiness away from Company, even if Confidential Information is not involved. However, nothing in this A greement precludes the\nEmployee from directing a third party (including but not limited to employees of his/her subsequent employer) to solicit, compete for,\nnegotiate and execute book roll over deals or other book of business transfer arrangements provided that (i) Confidential Information\nprovided by the Employee is not used, (ii) Employee is not personally and directly involved in such negotiations, and (iii) Employee\ndoes not direct such third party to target specific agents of Company. Furthermore, nothing in this greement precludes the\nEmployee from freely competing with the Company including but not limited to competing on an account by account or deal by deal\nbasis to the extent that he/she does not use Confidential Information.\n4.\nForfeiture of Consideration; ther Remedies. Employee agrees that if Employee breaches this A greement during the\nRestricted Period, Employee will immediately forfeit any award that has not yet been paid, exercised or vested and that serves as\nConsideration for this Agreement. In addition, the Company will be entitled to recapture from Employee any and all compensatory\nvalue that Employee received within twelve months prior to or twelve months after the Separation Date from any award that has\nalready been paid, exercised or vested and that serves as Consideration for this greement. The value subject to recapture includes\nthe amount of any cash payment made to Employee upon exercise or settlement of the award, and/or the amount included as\ncompensation in the taxable income of Employee upon vesting or exercise of the award. Employee will promptly pay the full amount\nsubject to recapture to the Company upon demand in the form of cash or shares of Company Common Stock with a current fair\nmarket value equal to the amount subject to recapture. In addition to the remedies set forth in Sections 2, 3 and 4 of this A greement,\nCompany may avail itself of any other remedies available under statute or common law.\n5.\nConsent to urisdiction. Jurisdiction and venue for enforcement of this greement, and for resolution of any dispute\nunder this Agreement, shall be exclusively in the federal or state courts in the state and county where the Employee resides at the time\nthat the Company commences an action under this A greement. Employee agrees to notify Company of any changes in his/her\nresidence after the Separation Date.\n6.\nModification. This A greement may not be terminated or modified without the express written consent of both the\nEmployee and the Company.\nEmployment At Will. Employee specifically recognizes and agrees that nothing in this A greement shall be deemed to\nestablish an employment relationship on a basis other than terminable at will, that the Company is not obligated to continue\nEmployee's employment for any particular period, and that this A greement is not an employment agreement for continued\nemployment.\n8.\noverning Law. This A greement shall be construed, interpreted and applied in accordance with the laws of the State of\nMinnesota.\n9.\nWaiver. The waiver of a breach of any provision of this A greement shall not operate as or be construed as a waiver of any\nsubsequent breach of this A greement.\n10.\nSeverability If any provision, section or subsection of this A greement is adjudged by any court to be void or unenforceable\nin whole or in part, this adjudication shall not affect the validity of the remainder of the A greement, including any other provision,\nsection or subsection. Each provision, section, and subsection of this A greement is separable from every other provision, section and\nsubsection and constitutes a separate and distinct covenant. Both Employee and the Company agree that if any court rules that a\nrestriction contained in this A greement is unenforceable as written, the parties will: (a) jointly request and consent to the reformation\nof the restriction by the court to the extent necessary to make the A greement enforceable, and (b) not to seek to enforce the ruling in\nany state other than the state where the ruling was made.\n11.\nssignment. This greement shall be binding upon and inure to the benefit of the Company, its successors and assigns and\nto\nthe benefit of Employee, his/her heirs and legal representatives. This A greement is not assignable by Employee. This A greement\nmay be assigned by the Company. Employee transfers to any corporate parent, affiliate or subsidiary of the Company shall constitute\nan assignment.\n12.\nEntire Agreement This A greement and any award agreement or term sheet documenting the equity award(s) that\nconstitutes the Consideration constitute the entire A greement and understanding between the Company and the Employee concerning\nthe subject matters hereof. No modification, amendment, termination or waiver of this A greement shall be binding unless in writing\nand signed by a duly authorized representative of the Company. Employee acknowledges and represents that s/he has carefully read\nthis A greement, that s/he has considered the terms and conditions contained herein, and that s/he voluntarily assents to all of these\nterms and conditions, and that s/he is accepting this A greement by Employee's own free will.\nTHE ST. PAUL TRAVELERS COMPANIES, INC\nPARTICIPANT'S ACCEPTANCE\n(Click on the button below to accept the terms of your Agreement, including the terms of the Non-Solicitation\nand Non-Disclosure Agreement. You will not be able to undo this change.)\nAgree/A ccept\n(Click on the button below to return to ECW and accept the terms of your Agreement at another time You\nwill not be able to undo this change.)\nReturn to Equity Compensation Web\n8 EX-10 .18 2 a06-2768 _1ex10d18.htm MATERIAL CONTRACTS\nEXHIBIT B\nNON-SOLICITATION AND NON -DISCLOSURE AGREEMENT\nTHIS NON-SOLICITATION AND NON -DISCLOSURE AGREEMENT (“Agreement”) is a part of the terms and conditions of the award issued by The St. Paul Travelers Companies, Inc., a Minnesota corporation with its principal place\nof business located in St. Paul, Minnesota and its affiliated entities (collectively, the “Company”), in favor of the participant named in the term sheet (the “Employee”) to which this Agreement is attached as an exhibit.\nWITNESSETH:\nWHEREAS, the Employee is employed by the Company; and\nWHEREAS, the Company is engaged in the business of marketing and selling insurance and insurance-related products\nthroughout the United States.\nNOW, THEREFORE, in consideration of the promises and the mutual covenants and obligations hereinafter set forth, the parties\nagree as follows:\n1.\nConsideration. As consideration for the execution of this Agreement, the Employee acknowledges receipt of an award(s)\nissued pursuant to the Company’s 2004 Stock Incentive Plan (the “Consideration”), as evidenced by term sheet(s) setting forth the\nterms and conditions of such award(s) to which this Agreement is attached as an exhibit, which constitutes good, valuable and\nindependent consideration for all of Employee’s covenants and obligations in this Agreement and above and beyond any\ncompensation Employee is entitled to receive from the Company.\n2.\nNon-Disclosure of Confidential Information.\n(a)\nEmployee recognizes that the Company has developed information that is confidential, proprietary and/or nonpublic that is\nrelated to its business, operations, services, finances, clients, customers, policyholders, vendors and agents (“Confidential\nInformation”). Employee understands and agrees that he/she is prohibited from using, disclosing, divulging or misappropriating any\nConfidential Information for his/her own personal benefit or for the benefit of any person or entity, except that Employee\nmay disclose Confidential Information pursuant to a properly issued subpoena, court order, other legal process, or official inquiry of a\nfederal, state or local taxing authority, or other governmental agency with a legitimate legal right to know the Confidential\nInformation. If disclosure is compelled of Employee by subpoena, court order or other legal process, or as otherwise required by law,\nEmployee agrees to notify Company as soon as notice of such process is received and before disclosure and/or appearance takes\nplace. Employee will use reasonable and prudent care to safeguard and prevent the unauthorized use or disclosure of Confidential\nInformation. Confidential Information shall not include any information that: (a) is or becomes a part of the public domain through\nno act or omission of Employee or is otherwise available to the public other than by breach of this Agreement; (b) was in Employee’s\nlawful possession prior to the disclosure and had not been obtained by Employee either directly or indirectly as a result of\nEmployee’s employment with or other service to the Company; (c) is disclosed to Employee by a third party who has authority from\nthe Company to make such disclosure and such disclosure to Employee is not confidential; or (d) is independently developed by\nEmployee outside of Employee’s employment with the Company and without the use of any Confidential Information. Employee\nfurther acknowledges that Employee, in the course of employment, has had and will have access to such Confidential Information.\n(b)\nEmployee agrees that every document, computer disk, electronic file, computerized information, computer software\nprogram, notation, record, diary, memorandum, development, investigation, or the like, and any method or manner of doing business\nof the Company containing Confidential Information made or acquired by the Employee during employment by the Company is and\nshall be the sole and exclusive property of Company. The Employee will deliver the same (and every copy, disk, abstract, summary,\nor reproduction of the same made by or for the Employee or acquired by the Employee) whenever the Company may so require and\nin any event prior to or at the termination of employment. Nothing in Section 2 is intended or shall be interpreted to mean that the\nCompany may withhold information, including computerized information, relating to Employee’s personal contacts and personal\ninformation that may be stored or contained in Employee’s physical or electronic files. The Company further agrees not to\nunreasonably withhold information relating to Employee’s business-related contacts, to the extent such information falls outside the\ndefinition of Confidential Information set forth in Section 2(a) above.\n5\n3.\nNon-Solicitation/Non-Interference.\n(a)\nThe parties understand and agree that this Agreement is intended to protect the Company against the Employee raiding its\nemployees and/or its business during the twelve (12) month period following the Separation Date (whether voluntary or involuntary)\n(the “Restricted Period”), while recognizing that after conclusion of his/her employment (the “Separation Date”), Employee is still\npermitted to freely compete with the Company, except to the extent Confidential Information is used in such solicitation and subject\nto certain restrictions set forth below. Further, nothing in this Agreement is intended to grant or limit any rights or claims as to any\nfuture employer of Employee. To this end, any court considering the enforcement of this Agreement for a breach of this Agreement,\nmust accept this statement of intent.\n(b)\nAfter Employee has left the employment of the Company and during the Restricted Period, Employee will not seek to\nrecruit or solicit, or assist in recruiting or soliciting, participate in or promote the solicitation of, interfere with, attempt to influence or\notherwise affect the employment of any person who was or is employed by the Company at any time during the last three months of\nEmployee’s employment or thereafter. Further, Employee shall not, on behalf of himself/herself or any other person, hire, employ or\nengage any such person. The parties agree that Employee shall not directly engage in the aforesaid conduct through a third party for\nthe purpose of colluding to avoid the restrictions in this Agreement. However, nothing in this Agreement precludes Employee from\ndirecting a third party (including but not limited to employees of his/her subsequent employer or a search firm) to broadly solicit,\nrecruit, and hire individuals, some of whom may be employees of the Company, provided that Employee does not specifically direct\nsuch third party to specifically target the Company’s employees generally or specific individual employees of the Company.\n(c)\nAfter Employee has left the employment of the Company, accepts a position as an employee, consultant or contractor with\na direct competitor of the Company, and during the Restricted Period, Employee will not utilize Confidential Information to seek to\nsolicit or assist in soliciting, participate in or otherwise promote the solicitation of, interference with, attempt to influence or\notherwise affect any person or entity, who is a client, customer, policyholder, or agent of the Company, to discontinue business with\nthe Company, and/or move that business elsewhere. Employee also agrees not to be directly and personally involved in the\nnegotiation or solicitation of any individual book roll over(s) or other book of business transfer arrangements involving the transfer of\nbusiness away from Company, even if Confidential Information is not involved. However, nothing in this Agreement precludes the\nEmployee from directing a third party (including but not limited to employees of his/her subsequent employer) to solicit, compete for,\nnegotiate and execute book roll over deals or other book of business transfer arrangements provided that (i) Confidential Information\nprovided by the Employee is not used, (ii) Employee is not personally and directly involved in such negotiations, and (iii) Employee\ndoes not direct such third party to target specific agents of Company. Furthermore, nothing in this Agreement precludes the\nEmployee from freely competing with the Company including but not limited to competing on an account by account or deal by deal\nbasis to the extent that he/she does not use Confidential Information.\n4.\nForfeiture of Consideration; Other Remedies. Employee agrees that if Employee breaches this Agreement during the\nRestricted Period, Employee will immediately forfeit any award that has not yet been paid, exercised or vested and that serves as\nConsideration for this Agreement. In addition, the Company will be entitled to recapture from Employee any and all compensatory\nvalue that Employee received within twelve months prior to or twelve months after the Separation Date from any award that has\nalready been paid, exercised or vested and that serves as Consideration for this Agreement. The value subject to recapture includes\nthe amount of any cash payment made to Employee upon exercise or settlement of the award, and/or the amount included as\ncompensation in the taxable income of Employee upon vesting or exercise of the award. Employee will promptly pay the full amount\nsubject to recapture to the Company upon demand in the form of cash or shares of Company Common Stock with a current fair\nmarket value equal to the amount subject to recapture. In addition to the remedies set forth in Sections 2, 3 and 4 of this Agreement,\nCompany may avail itself of any other remedies available under statute or common law.\n5.\nConsent to Jurisdiction. Jurisdiction and venue for enforcement of this Agreement, and for resolution of any dispute\nunder this Agreement, shall be exclusively in the federal or state courts in the state and county where the Employee resides at the time\nthat the Company commences an action under this Agreement. Employee agrees to notify Company of any changes in his/her\nresidence after the Separation Date.\n6.\nModification. This Agreement may not be terminated or modified without the express written consent of both the\nEmployee and the Company.\n6\n7.\nEmployment At Will. Employee specifically recognizes and agrees that nothing in this Agreement shall be deemed to\nestablish an employment relationship on a basis other than terminable at will, that the Company is not obligated to continue\nEmployee’s employment for any particular period, and that this Agreement is not an employment agreement for continued\nemployment.\n8.\nGoverning Law. This Agreement shall be construed, interpreted and applied in accordance with the laws of the State of\nMinnesota.\n9.\nWaiver. The waiver of a breach of any provision of this Agreement shall not operate as or be construed as a waiver of any\nsubsequent breach of this Agreement.\n10.\nSeverability. If any provision, section or subsection of this Agreement is adjudged by any court to be void or unenforceable\nin whole or in part, this adjudication shall not affect the validity of the remainder of the Agreement, including any other provision,\nsection or subsection. Each provision, section, and subsection of this Agreement is separable from every other provision, section and\nsubsection and constitutes a separate and distinct covenant. Both Employee and the Company agree that if any court rules that a\nrestriction contained in this Agreement is unenforceable as written, the parties will: (a) jointly request and consent to the reformation\nof the restriction by the court to the extent necessary to make the Agreement enforceable, and (b) not to seek to enforce the ruling in\nany state other than the state where the ruling was made.\n11.\nAssignment. This Agreement shall be binding upon and inure to the benefit of the Company, its successors and assigns and\nto the benefit of Employee, his/her heirs and legal representatives. This Agreement is not assignable by Employee. This Agreement\nmay be assigned by the Company. Employee transfers to any corporate parent, affiliate or subsidiary of the Company shall constitute\nan assignment.\n12.\nEntire Agreement. This Agreement and any award agreement or term sheet documenting the equity award(s) that\nconstitutes the Consideration constitute the entire Agreement and understanding between the Company and the Employee concerning\nthe subject matters hereof. No modification, amendment, termination or waiver of this Agreement shall be binding unless in writing\nand signed by a duly authorized representative of the Company. Employee acknowledges and represents that s/he has carefully read\nthis Agreement, that s/he has considered the terms and conditions contained herein, and that s/he voluntarily assents to all of these\nterms and conditions, and that s/he is accepting this Agreement by Employee’s own free will.\n7\nTHE ST. PAUL TRAVELERS COMPANIES , INC\nPARTICIPANT’S ACCEPTANCE\n(Click on the button below to accept the terms of your Agreement, including the terms of the Non-Solicitation\nand Non-Disclosure Agreement. You will not be able to undo this change.)\nAgree/Accept\n(Click on the button below to return to ECW and accept the terms of your Agreement at another time. You\nwill not be able to undo this change.)\nReturn to Equity Compensation Web\n8 5fa6579440892c888a68fb053f30b58e.pdf effective_date jurisdiction party term Non-Disclosure Agreement\nThis Non-Disclosure Agreement (this “Agreement”) is made this day of\n,20\n, by and among KBSIII REIT Acquisition VII, LLC,\na Delaware limited liability company (“KBS REIT VII”), KBS Limited Partnership III, a Delaware limited liability partnership (“KBS LP III”),\nKBS Real Estate Investment Trust III, Inc., a Maryland corporation (“KBS III Inc.”), KBS Capital Advisors LLC, a Delaware limited liability\ncompany (“KBS CA”), and\n,a\n(the “Recipient”) (KBS REIT VII, KBS LP III, KBS III Inc. and KBS CA are\ncollectively referred to as “KBS”; Recipient and KBS are sometimes referred to in this Agreement individually as a “Party” or collectively as the\n“Parties”).\nKBS and Recipient wish to have discussions during which Recipient may be exposed to important business and/or technical information\nwhich is the property of KBS. Such disclosures may be in the form of written materials, by oral disclosure, or through learned observation, and may\ninclude certain plans, designs, data, operations, financial positions and projections, business and technical information, trade secrets, techniques,\nmethods, supplier and vendor contacts and methods, development plans, acquisition plans, financing options and plans, profit margins, services,\nproprietary information, and other confidential information. Much of this information is the result of substantial expenditures of time, money,\ntechnical expertise, and resources. And KBS considers this information confidential and/or a trade secret. The unauthorized use or disclosure of this\ninformation could cause significant harm to KBS’s business. For this reason and in consideration of the mutual covenants contained in this\nAgreement and the disclosure of confidential information to Recipient, the Parties agree as follows:\n3\n1. Definitions. For purposes of this Agreement, the following\ndefinitions apply:\n1.1.\n“Confidential Information” means KBS’s non-public,\nconfidential and proprietary information and specifically includes, but\nis not necessarily limited to, the following: (A) plans, data, operations,\nfinancial positions, historical performance and projections, business\nand technical information, techniques, methods, supplier and vendor\ncontacts, development plans, acquisition plans, financing options and\nplans, profit margins, services, methodologies, techniques, designs\n(architectural or otherwise), specifications, tenant lists, tenant\ninformation, leasing plans or strategies, market information, marketing\nplans, personnel information, other financial information, business\nstrategies, rent and pricing policies, contractual relations with\ncustomers and suppliers, business acquisition plans, business\nopportunities, new personnel acquisition plans, and information, books,\nrecords, patent applications, proprietary information, and other\nconfidential information and know-how relating to the business of\nKBS; (B) information received by KBS from third parties under\nconfidential conditions, which information is identified by KBS as\nbeing subject to such conditions; and (C) KBS’s Trade Secrets.\nConfidential Information does not include any information that: (W) is\nor subsequently becomes publicly available without the Recipient’s\nbreach, directly or indirectly, of any obligation owed to KBS;\n(X) became known to the Recipient prior to KBS’s disclosure of such\ninformation to the Recipient as can be proven by Recipient’s written\nrecords; (Y) became known to the Recipient from a source other than\nKBS other than by the breach of an obligation of confidentiality owed\nto KBS; or (Z) is independently developed, without any use of KBS’s\nConfidential Information, by the Recipient as evidenced by its written\nrecords.\n1.2.\n“Trade Secrets” means information that: derives economic\nvalue, actual or potential, from not being generally known to, or readily\nascertainable by proper means by, other persons who can obtain\neconomic value\nfrom its disclosure or use, and that is the subject of efforts that are\nreasonable under the circumstances to maintain its secrecy.\n2. Obligations of Recipient. Recipient covenants and agrees that:\n2.1. It will hold all Confidential Information in trust and in the\nstrictest confidence and protect it in accordance with a standard of care\nthat shall be no less than the care it uses to protect its own information\nof like importance but in no event with less than reasonable care;\n2.2. It will not use, copy, or disclose, or permit any unauthorized\nperson access to, any Confidential Information without KBS’s\npermission, to be granted or withheld in KBS’s sole discretion, and\nprovided that any existing confidentiality notices are included in such\nreproductions or, if no such notices are included, “Confidential” or\nsome similar notice is stamped on the Confidential Information;\n2.3. It may only disclose Confidential Information to its directors,\nofficers, employees, consultants, insurers, reinsurers, auditors,\nregulators, attorneys and agents (“Representatives”) provided such\nRepresentatives (i) have a need to know and (ii) are informed, directed\nand obligated by Recipient to treat such Confidential Information in\naccordance with the obligations of this Agreement. Recipient agrees to\nbe liable for any breach of an obligation hereunder by any of its\nRepresentatives;\n2.4. All Confidential Information, including all tangible\nembodiments, copies, reproductions and summaries thereof, and any\nother information and materials provided by KBS to the Recipient shall\nremain the sole and exclusive property of KBS.\n2.5. It shall immediately report to KBS any use or disclosure by the\nRecipient’s employees or any other person of which the Recipient has\nknowledge of any portion of the Confidential Information without\nauthorization from KBS, and will reasonably cooperate with KBS to\nhelp KBS\n4\nregain possession of the Confidential Information and prevent its\nfurther unauthorized use.\n2.6. Upon the written request of KBS, Recipient will effect the\ndestruction of all memoranda, notes, records, tapes, documentation,\ndisks, manuals, files, originals, copies, reproductions and summaries\n(in any form or format, including without limitation, copies resident in\nlong or short-term computer storage devices) of, to the extent they\nconcern or contain Confidential Information that are in Recipient’s\npossession, whether made or compiled by Recipient or furnished to\nRecipient by KBS; provided that Recipient, as a regulated entity, may\nretain the Confidential Information for the purposes of and for so long\nas required by any law, court or regulatory agency or authority or its\ninternal compliance procedures. The confidentiality obligations of this\nAgreement shall continue to apply to such Confidential Information\nretained by Recipient or its Representatives for so long as Recipient or\nits Representatives retains such Confidential Information.\n3. Obligation of Recipient. The Recipient’s obligations to maintain\nthe confidentiality of Confidential Information pursuant to Section 2\nspecifically include, but are not limited to, not disclosing Confidential\nInformation to any persons or entities engaged in a field of business\nsimilar to KBS or in the non-traded REIT industry.\n4. Exception. The obligations of confidentiality imposed by this\nAgreement do not apply to any Confidential Information that is\nrequired to be disclosed pursuant to operation of law or legal process,\ngovernmental regulation or court order. If Recipient receives a court\norder or other governmental or administrative decree of appropriate\nand sufficient jurisdiction requiring disclosure of KBS’s Confidential\nInformation, Recipient shall give KBS prompt notice prior to such\ndisclosure, if legally permitted, in order to permit KBS, at its expense,\nto seek a protective order in the case of a court order or other\ngovernmental or administrative decree. Recipient agrees to reasonably\ncooperate with KBS, at KBS’s expense and subject to applicable law,\nto limit such disclosure. Recipient shall also reasonably cooperate with\nKBS in seeking a protective order subject to the payment by KBS of all\nout-of-pocket expenses incurred by the party providing such\ncooperation at the request of KBS. Recipient shall release only so\nmuch of KBS’s Confidential Information as Recipient’s counsel\nadvises is required by such order.\n5. Duration. The restrictions on use and disclosure of Confidential\nInformation shall survive for a period of two (2) years. However, with\nrespect to Confidential Information that constitutes (i) a Trade Secret,\nor (ii) is retained by Recipient pursuant to the second clause of\nSection 2.6(ii) above, the confidentiality obligations set forth in this\nAgreement shall continue in effect for so long as such Confidential\nInformation remains a Trade Secret, or is retained by Recipient, as\napplicable.\n6. No Warranties. KBS makes no warranties, express or implied,\nunder this Agreement or by any Confidential Information\ndisclosed to Recipient under\nthis Agreement. All information disclosed hereunder is provided\n“as is.”\n7. No Licenses or Other Obligations. By disclosing information to\nthe Recipient, KBS does not grant any express or implied rights or\nlicenses to the Recipient with respect to any patents, copyrights,\ntrademarks, Trade Secrets or other proprietary rights of KBS. Nothing\nin this Agreement shall obligate KBS to disclose any information to\nRecipient or to engage in any other business activity with Recipient.\n8.\nRepresentations and Covenants.\nRecipient represents,\ncovenants, acknowledges, and agrees that:\n8.1. It is aware and its Representatives have been advised that\nsecurities laws prohibit any person who has material non-public\ninformation about a public company from purchasing or selling\nsecurities of such company.\n8.2. This Agreement (and any Confidential Information) is\ndelivered upon the express condition that Recipient will not publicize\nin any manner whatsoever by way of interviews, responses to questions\nor inquiries, press releases or otherwise, any aspect or proposed aspect\nof the subject matter of the Confidential Information without prior\nnotice to and approval of KBS, except as may otherwise be required by\nlaw.\n9. Threatened Breach; Breach; Remedies. In the event of any\nbreach of this Agreement by Recipient, including, without limitation,\nthe actual or threatened disclosure of Confidential Information without\nthe prior express written consent of KBS, KBS will suffer an\nirreparable injury, such that no remedy at law will afford it adequate\nprotection against, or appropriate compensation for, such injury.\nAccordingly, Recipient hereby agrees that KBS shall be entitled,\nwithout waiving any other rights or remedies, to seek specific\nperformance of the Recipient’s obligations as well as such other\ninjunctive relief as may be granted by a court of competent jurisdiction.\n10. Miscellaneous.\n10.1. Severability. If any provision of this Agreement shall not\nbe valid for any reason, such provision shall be entirely severable from,\nand shall have no effect upon, the remainder of this Agreement. Any\nsuch invalid provision shall be subject to partial enforcement to the\nextent necessary to protect the interest of KBS.\n10.2. Governing Law; Forum. This Agreement shall be\nconstrued and controlled by the laws of the State of California without\nreference to the provisions governing conflict of laws, and both parties\nfurther consent to the exclusive jurisdiction by the state and federal\ncourts sitting in the State of California of any dispute arising out of or\nrelated to this Agreement.\n10.3.\nEnforcement by Successors or Assigns;\nSurvivability. The covenants and agreements contained herein shall\ninure to the benefit of, and may be enforced by, any legal successors or\nassigns of each Party and shall survive any termination of the\nrelationship between the\n5\nParties, whether such termination is at the instance of either Party, and\nregardless of the reasons therefore.\n10.4. Amendment; Waiver. This Agreement, or any provision\nhereof, shall not be waived, changed or terminated except by a writing\nsigned by an authorized officer of both Parties.\n10.5. Counterparts. This Agreement may be executed in one\nor more counterparts, each of which will constitute an original, but all\nof which together constitute a single document. Any signature duly\naffixed to this Agreement and delivered by facsimile transmission shall\nbe deemed to have the same legal effect as the actual signature of the\nperson signing this Agreement, and any Party receiving delivery of a\nfacsimile copy of the signed Agreement may rely on such as having\nactually been signed.\n10.6. Merger. This Agreement constitutes the entire agreement\nbetween the parties with respect to the subject matter of this\nAgreement, except to the extent of existing non-disclosure agreements\nbetween the parties to which this Agreement supplements (but\nsupersedes to the extent of any inconsistency therein).\n10.7. No Implied Waiver. None of the provisions of this\nAgreement shall be deemed to have been waived by any act or\nacquiescence on the part of KBS, its agents, or employees, but only by\nan instrument in writing signed by an authorized officer of KBS. No\nwaiver of any provision of this Agreement shall constitute a waiver of\nany other provision(s) or of the same provision on another occasion.\n10.8. No Assignment. The Recipient may not assign its rights\nor obligations under this Agreement without the express written\nconsent of KBS.\n10.9. Headings and Construction. The headings of Sections in\nthis Agreement are provided for convenience only and will not affect\nits construction or interpretation. All references to “Section” or\n“Sections” refer to the corresponding Section or Sections of this\nAgreement unless otherwise specified. All words used in this\nAgreement will be construed to be of such gender or number as the\ncircumstances require. Unless otherwise expressly provided, the word\n“including” does not limit the preceding words or terms.\nThe parties hereto have executed this Agreement as of the date noted above.\nRecipient Name:\nKBS Capital Advisors LLC\nBy:\nBy:\nName (print):\nName (print):\nTitle:\nTitle:\nS7-1 Non-Disclosure Agreement\nThis Non-Disclosure Agreement (this “Agreement”) is made this __day of ____, 20__, by and among KBSIII REIT Acquisition VII, LLC,\na Delaware limited liability company (“KBS REIT VII”), KBS Limited Partnership III, a Delaware limited liability partnership (“KBS LP III”),\nKBS Real Estate Investment Trust III, Inc., a Maryland corporation (“KBS III Inc.”), KBS Capital Advisors LLC, a Delaware limited liability\ncompany (“KBS CA”), and a (the “Recipient”) (KBS REIT VII, KBS LP III, KBS III Inc. and KBS CA are\ncollectively referred to as “KBS”; Recipient and KBS are sometimes referred to in this Agreement individually as a “Party” or collectively as the\n“Parties”).\n \nKBS and Recipient wish to have discussions during which Recipient may be exposed to important business and/or technical information\nwhich is the property of KBS. Such disclosures may be in the form of written materials, by oral disclosure, or through learned observation, and may\ninclude certain plans, designs, data, operations, financial positions and projections, business and technical information, trade secrets, techniques,\nmethods, supplier and vendor contacts and methods, development plans, acquisition plans, financing options and plans, profit margins, services,\nproprietary information, and other confidential information. Much of this information is the result of substantial expenditures of time, money,\ntechnical expertise, and resources. And KBS considers this information confidential and/or a trade secret. The unauthorized use or disclosure of this\ninformation could cause significant harm to KBS’s business. For this reason and in consideration of the mutual covenants contained in this\nAgreement and the disclosure of confidential information to Recipient, the Parties agree as follows: 1. Definitions.\ndefinitions apply:\nFor purposes of this Agreement, the following\n1.1. “Confidential Information” means KBS’s non-public,\nconfidential and proprietary information and specifically includes, but\nis not necessarily limited to, the following: (A) plans, data, operations,\nfinancial positions, historical performance and projections, business\nand technical information, techniques, methods, supplier and vendor\ncontacts, development plans, acquisition plans, financing options and\nplans, profit margins, services, methodologies, techniques, designs\n(architectural or otherwise), specifications, tenant lists, tenant\ninformation, leasing plans or strategies, market information, marketing\nplans, personnel information, other financial information, business\nstrategies, rent and pricing policies, contractual relations with\ncustomers and suppliers, business acquisition plans, business\nopportunities, new personnel acquisition plans, and information, books,\nrecords, patent applications, proprietary information, and other\nconfidential information and know-how relating to the business of\nKBS; (B) information received by KBS from third parties under\nconfidential conditions, which information is identified by KBS as\nbeing subject to such conditions; and (C) KBS’s Trade Secrets.\nConfidential Information does not include any information that: (W) is\nor subsequently becomes publicly available without the Recipient’s\nbreach, directly or indirectly, of any obligation owed to KBS;\n(X) became known to the Recipient prior to KBS’s disclosure of such\ninformation to the Recipient as can be proven by Recipient’s written\nrecords; (Y) became known to the Recipient from a source other than\nKBS other than by the breach of an obligation of confidentiality owed\nto KBS; or (Z) is independently developed, without any use of KBS’s\nConfidential Information, by the Recipient as evidenced by its written\nrecords.\n1.2. “Trade Secrets” means information that: derives economic\nvalue, actual or potential, from not being generally known to, or readily\nascertainable by proper means by, other persons who can obtain\neconomic value\nfrom its disclosure or use, and that is the subject of efforts that are\nreasonable under the circumstances to maintain its secrecy.\n2. Obligations of Recipient. Recipient covenants and agrees that:\n2.1. It will hold all Confidential Information in trust and in the\nstrictest confidence and protect it in accordance with a standard of care\nthat shall be no less than the care it uses to protect its own information\nof like importance but in no event with less than reasonable care;\n2.2. It will not use, copy, or disclose, or permit any unauthorized\nperson access to, any Confidential Information without KBS’s\npermission, to be granted or withheld in KBS’s sole discretion, and\nprovided that any existing confidentiality notices are included in such\nreproductions or, if no such notices are included, “Confidential” or\nsome similar notice is stamped on the Confidential Information;\n2.3. It may only disclose Confidential Information to its directors,\nofficers, employees, consultants, insurers, reinsurers, auditors,\nregulators, attorneys and agents (“Representatives”) provided such\nRepresentatives (i) have a need to know and (ii) are informed, directed\nand obligated by Recipient to treat such Confidential Information in\naccordance with the obligations of this Agreement. Recipient agrees to\nbe liable for any breach of an obligation hereunder by any of its\nRepresentatives;\n2.4. All Confidential Information, including all tangible\nembodiments, copies, reproductions and summaries thereof, and any\nother information and materials provided by KBS to the Recipient shall\nremain the sole and exclusive property of KBS.\n2.5. It shall immediately report to KBS any use or disclosure by the\nRecipient’s employees or any other person of which the Recipient has\nknowledge of any portion of the Confidential Information without\nauthorization from KBS, and will reasonably cooperate with KBS to\nhelp KBS\nregain possession of the Confidential Information and prevent its\nfurther unauthorized use.\n2.6. Upon the written request of KBS, Recipient will effect the\ndestruction of all memoranda, notes, records, tapes, documentation,\ndisks, manuals, files, originals, copies, reproductions and summaries\n(in any form or format, including without limitation, copies resident in\nlong or short-term computer storage devices) of, to the extent they\nconcern or contain Confidential Information that are in Recipient’s\npossession, whether made or compiled by Recipient or furnished to\nRecipient by KBS; provided that Recipient, as a regulated entity, may\nretain the Confidential Information for the purposes of and for so long\nas required by any law, court or regulatory agency or authority or its\ninternal compliance procedures. The confidentiality obligations of this\nAgreement shall continue to apply to such Confidential Information\nretained by Recipient or its Representatives for so long as Recipient or\nits Representatives retains such Confidential Information.\n3. Obligation of Recipient. The Recipient’s obligations to maintain\nthe confidentiality of Confidential Information pursuant to Section 2\nspecifically include, but are not limited to, not disclosing Confidential\nInformation to any persons or entities engaged in a field of business\nsimilar to KBS or in the non-traded REIT industry.\n4. Exception. The obligations of confidentiality imposed by this\nAgreement do not apply to any Confidential Information that is\nrequired to be disclosed pursuant to operation of law or legal process,\ngovernmental regulation or court order. If Recipient receives a court\norder or other governmental or administrative decree of appropriate\nand sufficient jurisdiction requiring disclosure of KBS’s Confidential\nInformation, Recipient shall give KBS prompt notice prior to such\ndisclosure, if legally permitted, in order to permit KBS, at its expense,\nto seek a protective order in the case of a court order or other\ngovernmental or administrative decree. Recipient agrees to reasonably\ncooperate with KBS, at KBS’s expense and subject to applicable law,\nto limit such disclosure. Recipient shall also reasonably cooperate with\nKBS in seeking a protective order subject to the payment by KBS of all\nout-of-pocket expenses incurred by the party providing such\ncooperation at the request of KBS. Recipient shall release only so\nmuch of KBS’s Confidential Information as Recipient’s counsel\nadvises is required by such order.\n5. Duration. The restrictions on use and disclosure of Confidential\nInformation shall survive for a period of two (2) years. However, with\nrespect to Confidential Information that constitutes (i) a Trade Secret,\nor (ii) is retained by Recipient pursuant to the second clause of\nSection 2.6(ii) above, the confidentiality obligations set forth in this\nAgreement shall continue in effect for so long as such Confidential\nInformation remains a Trade Secret, or is retained by Recipient, as\napplicable.\n6. No Warranties. KBS makes no warranties, express or implied,\nunder this Agreement or by any Confidential Information\ndisclosed to Recipient under\nthis Agreement. All information disclosed hereunder is provided\n“as is.”\n7. No Licenses or Other Obligations. By disclosing information to\nthe Recipient, KBS does not grant any express or implied rights or\nlicenses to the Recipient with respect to any patents, copyrights,\ntrademarks, Trade Secrets or other proprietary rights of KBS. Nothing\nin this Agreement shall obligate KBS to disclose any information to\nRecipient or to engage in any other business activity with Recipient.\n8. Representations and Covenants.\ncovenants, acknowledges, and agrees that:\nRecipient represents,\n8.1. It is aware and its Representatives have been advised that\nsecurities laws prohibit any person who has material non-public\ninformation about a public company from purchasing or selling\nsecurities of such company.\n8.2. This Agreement (and any Confidential Information) is\ndelivered upon the express condition that Recipient will not publicize\nin any manner whatsoever by way of interviews, responses to questions\nor inquiries, press releases or otherwise, any aspect or proposed aspect\nof the subject matter of the Confidential Information without prior\nnotice to and approval of KBS, except as may otherwise be required by\nlaw.\n9. Threatened Breach; Breach; Remedies. In the event of any\nbreach of this Agreement by Recipient, including, without limitation,\nthe actual or threatened disclosure of Confidential Information without\nthe prior express written consent of KBS, KBS will suffer an\nirreparable injury, such that no remedy at law will afford it adequate\nprotection against, or appropriate compensation for, such injury.\nAccordingly, Recipient hereby agrees that KBS shall be entitled,\nwithout waiving any other rights or remedies, to seek specific\nperformance of the Recipient’s obligations as well as such other\ninjunctive relief as may be granted by a court of competent jurisdiction.\n10. Miscellaneous.\n10.1. Severability. If any provision of this Agreement shall not\nbe valid for any reason, such provision shall be entirely severable from,\nand shall have no effect upon, the remainder of this Agreement. Any\nsuch invalid provision shall be subject to partial enforcement to the\nextent necessary to protect the interest of KBS.\n10.2. Governing Law; Forum. This Agreement shall be\nconstrued and controlled by the laws of the State of California without\nreference to the provisions governing conflict of laws, and both parties\nfurther consent to the exclusive jurisdiction by the state and federal\ncourts sitting in the State of California of any dispute arising out of or\nrelated to this Agreement.\n10.3. Enforcement by Successors or Assigns;\nSurvivability. The covenants and agreements contained herein shall\ninure to the benefit of, and may be enforced by, any legal successors or\nassigns of each Party and shall survive any termination of the\nrelationship between the\nParties, whether such termination is at the instance of either Party, and\nregardless of the reasons therefore.\n10.4. Amendment; Waiver. This Agreement, or any provision\nhereof, shall not be waived, changed or terminated except by a writing\nsigned by an authorized officer of both Parties.\n10.5. Counterparts. This Agreement may be executed in one\nor more counterparts, each of which will constitute an original, but all\nof which together constitute a single document. Any signature duly\naffixed to this Agreement and delivered by facsimile transmission shall\nbe deemed to have the same legal effect as the actual signature of the\nperson signing this Agreement, and any Party receiving delivery of a\nfacsimile copy of the signed Agreement may rely on such as having\nactually been signed.\n10.6. Merger. This Agreement constitutes the entire agreement\nbetween the parties with respect to the subject matter of this\nAgreement, except to the extent of existing non-disclosure agreements\nbetween the parties to which this Agreement supplements (but\nsupersedes to the extent of any inconsistency therein).\n10.7. No Implied Waiver. None of the provisions of this\nAgreement shall be deemed to have been waived by any act or\nacquiescence on the part of KBS, its agents, or employees, but only by\nan instrument in writing signed by an authorized officer of KBS. No\nwaiver of any provision of this Agreement shall constitute a waiver of\nany other provision(s) or of the same provision on another occasion.\n10.8. No Assignment. The Recipient may not assign its rights\nor obligations under this Agreement without the express written\nconsent of KBS.\n10.9. Headings and Construction. The headings of Sections in\nthis Agreement are provided for convenience only and will not affect\nits construction or interpretation. All references to “Section” or\n“Sections” refer to the corresponding Section or Sections of this\nAgreement unless otherwise specified. All words used in this\nAgreement will be construed to be of such gender or number as the\ncircumstances require. Unless otherwise expressly provided, the word\n“including” does not limit the preceding words or terms.\nThe parties hereto have executed this Agreement as of the date noted above.\nRecipient Name: KBS Capital Advisors LLC\nBy: By:\nName (print): Name (print):\nTitle: Title:\nS7-1 Non-Disclosure Agreement\nThis Non-Disclosure Agreement (this "Agreement") is made this day of 20_, by and among KBSIII REIT Acquisition VII, LLC,\na Delaware limited liability company ("KBS REIT VII"), KBS Limited Partnership III, a Delaware limited liability partnership ("KBS LP III"),\nKBS Real Estate Investment Trust III, Inc., a Maryland corporation ("KBS III Inc."), KBS Capital Advisors LLC, a Delaware limited liability\ncompany ("KBS CA"), and\na\n(the "Recipient") (KBS REIT VII, KBS LP III, KBS III Inc. and KBS CA are\ncollectively referred to as "KBS"; Recipient and KBS are sometimes referred to in this Agreement individually as a "Party" or collectively as the\n"Parties").\nKBS and Recipient wish to have discussions during which Recipient may be exposed to important business and/or technical information\nwhich\nis\nthe\nproperty\nof\nKBS. Such disclosures may be in the form of written materials, by oral disclosure, or through learned observation, and may\ninclude certain plans, designs, data, operations, financial positions and projections, business and technical information, trade secrets, techniques,\nmethods, supplier and vendor contacts and methods, development plans, acquisition plans, financing options and plans, profit margins, services,\nproprietary information, and other confidential information. Much of this information is the result of substantial expenditures of time, money,\ntechnical\nexpertise,\nand\nresources. And KBS considers this information confidential and/or a trade secret. The unauthorized use or disclosure of this\ninformation could cause significant harm to KBS's business. For this reason and in consideration of the mutual covenants contained\nin\nthis\nAgreement and the disclosure of confidential information to Recipient, the Parties agree as follows:\n1.\nDefinitions. For purposes of this Agreement, the following\nfrom its disclosure or use, and that is the subject of efforts that are\ndefinitions apply:\nreasonable under the circumstances to maintain its secrecy.\n1.1. "Confidential Information" means KBS's non-public,\n2. Obligations of Recipient. Recipient covenants and agrees that:\nconfidential and proprietary information and specifically includes, but\n2.1. It will hold all Confidential Information in trust and in the\nis not necessarily limited to, the following: (A) plans, data, operations,\nstrictest confidence and protect it in accordance with a standard of care\nfinancial positions, historical performance and projections, business\nthat shall be no less than the care it uses to protect its own information\nand technical information, techniques, methods, supplier and vendor\nof like importance but in no event with less than reasonable care;\ncontacts, development plans, acquisition plans, financing options and\nplans, profit margins, services, methodologies, techniques, designs\n2.2. It will not use, copy, or disclose, or permit any unauthorized\n(architectural or otherwise), specifications, tenant lists, tenant\nperson access to, any Confidential Information without KBS's\ninformation, leasing plans or strategies, market information, marketing\npermission, to be granted or withheld in KBS's sole discretion, and\nplans, personnel information, other financial information, business\nprovided that any existing confidentiality notices are included in such\nstrategies, rent and pricing policies, contractual relations with\nreproductions or, if no such notices are included, "Confidential" or\ncustomers and suppliers, business acquisition plans, business\nsome similar notice is stamped on the Confidential Information;\nopportunities, new personnel acquisition plans, and information, books,\n2.3. It may only disclose Confidential Information to its directors,\nrecords, patent applications, proprietary information, and other\nofficers, employees, consultants, insurers, reinsurers, auditors,\nconfidential information and know-how relating to the business of\nregulators, attorneys and agents ("Representatives") provided such\nKBS; (B) information received by KBS from third parties under\nRepresentatives (i) have a need to know and (ii) are informed, directed\nconfidential conditions, which information is identified by KBS as\nand obligated by Recipient to treat such Confidential Information in\nbeing subject to such conditions; and (C) KBS's Trade Secrets.\naccordance with the obligations of this Agreement. Recipient agrees to\nConfidential Information does not include any information that: (W) is\nbe liable for any breach of an obligation hereunder by any of its\nor subsequently becomes publicly available without the Recipient's\nRepresentatives;\nbreach, directly or indirectly, of any obligation owed to KBS;\n(X) became known to the Recipient prior to KBS's disclosure of such\n2.4. All Confidential Information, including all tangible\ninformation to the Recipient as can be proven by Recipient's written\nembodiments, copies, reproductions and summaries thereof, and any\nrecords; (Y) became known to the Recipient from a source other than\nother information and materials provided by KBS to the Recipient shall\nKBS other than by the breach of an obligation of confidentiality owed\nremain the sole and exclusive property of KBS.\nto KBS; or (Z) is independently developed, without any use of KBS's\n2.5. It shall immediately report to KBS any use or disclosure by the\nConfidential Information, by the Recipient as evidenced by its written\nRecipient's employees or any other person of which the Recipient has\nrecords.\nknowledge of any portion of the Confidentia Information without\n1.2. "Trade Secrets" means information that: derives economic\nauthorization from KBS, and will reasonably cooperate with KBS to\nvalue, actual or potential, from not being generally known to, or readily\nhelp KBS\nascertainable by proper means by, other persons who can obtain\neconomic value\n3\nregain possession of the Confidential Information and prevent its\nthis Agreement. All information disclosed hereunder is provided\nfurther unauthorized use.\n"as is."\n2.6. Upon the written request of KBS, Recipient will effect the\n7.\nNo Licenses or Other Obligations. By disclosing information to\ndestruction of all memoranda, notes, records, tapes, documentation,\nthe Recipient, KBS does not grant any express or implied rights or\ndisks, manuals, files, originals, copies, reproductions and summaries\nlicenses to the Recipient with respect to any patents, copyrights,\n(in any form or format, including without limitation, copies resident in\ntrademarks, Trade Secrets or other proprietary rights of KBS. Nothing\nlong or short-term computer storage devices) of, to the extent they\nin this Agreement shall obligate KBS to disclose any information to\nconcern or contain Confidential Information that are in Recipient's\nRecipient or to engage in any other business activity with Recipient.\npossession, whether made or compiled by Recipient or furnished to\n8.\nRepresentations and Covenants. Recipient represents,\nRecipient by KBS; provided that Recipient, as a regulated entity, may\ncovenants, acknowledges, and agrees that:\nretain the Confidential Information for the purposes of and for so long\nas required by any law, court or regulatory agency or authority or its\n8.1. It is aware and its Representatives have been advised that\ninternal compliance procedures. The confidentiality obligations of this\nsecurities laws prohibit any person who has material non-public\nAgreement shall continue to apply to such Confidential Information\ninformation about a public company from purchasing or selling\nretained by Recipient or its Representatives for so long as Recipient or\nsecurities of such company.\nits Representatives retains such Confidential Information.\n8.2. This Agreement (and any Confidential Information) is\n3. Obligation of Recipient. The Recipient's obligations to maintain\ndelivered upon the express condition that Recipient will not publicize\nthe confidentiality of Confidential Information pursuant to Section 2\nin any manner whatsoever by way of interviews, responses to questions\nspecifically include, but are not limited to, not disclosing Confidentia\nor inquiries, press releases or otherwise, any aspect or proposed aspect\nInformation to any persons or entities engaged in a field of business\nof the subject matter of the Confidential Information without prior\nsimilar to KBS or in the non-traded REIT industry.\nnotice to and approval of KBS, except as may otherwise be required by\nlaw.\n4.\nException. The obligations of confidentiality imposed by this\nAgreement do not apply to any Confidential Information that is\n9. Threatened Breach; Breach; Remedies. In the event of any\nrequired to be disclosed pursuant to operation of law or legal process,\nbreach of this Agreement by Recipient, including, without limitation,\ngovernmental regulation or court order. If Recipient receives a court\nthe actual or threatened disclosure of Confidential Information without\norder or other governmental or administrative decree of appropriate\nthe prior express written consent of KBS, KBS will suffer an\nand sufficient jurisdiction requiring disclosure of KBS's Confidential\nirreparable injury, such that no remedy at law will afford it adequate\nInformation, Recipient shall give KBS prompt notice prior to such\nprotection against, or appropriate compensation for, such injury.\ndisclosure, if legally permitted, in order to permit KBS, at its expense,\nAccordingly, Recipient hereby agrees that KBS shall be entitled,\nto seek a protective order in the case of a court order or other\nwithout waiving any other rights or remedies, to seek specific\ngovernmental or administrative decree. Recipient agrees to reasonably\nperformance of the Recipient's obligations as well as such other\ncooperate with KBS, at KBS's expense and subject to applicable law,\ninjunctive relief as may be granted by a court of competent jurisdiction.\nto limit such disclosure. Recipient shall also reasonably cooperate with\n10. Miscellaneous.\nKBS in seeking a protective order subject to the payment by KBS of all\nout-of-pocket expenses incurred by the party providing such\n10.1. Severability. If any provision of this Agreement shall not\ncooperation at the request of KBS. Recipient shall release only so\nbe valid for any reason, such provision shall be entirely severable from,\nmuch of KBS's Confidential Information as Recipient's counse\nand shall have no effect upon, the remainder of this Agreement. Any\nadvises is required by such order.\nsuch invalid provision shall be subject to partial enforcement to the\nextent necessary to protect the interest of KBS.\n5. Duration. The restrictions on use and disclosure of Confidential\nInformation shall survive for a period of two (2) years. However, with\n10.2. Governing Law; Forum. This Agreement shall be\nrespect to Confidential Information that constitutes (i) a Trade Secret,\nconstrued and controlled by the laws of the State of California without\nor (ii) is retained by Recipient pursuant to the second clause of\nreference to the provisions governing conflict of laws, and both parties\nSection 2.6(ii) above, the confidentiality obligations set forth in this\nfurther consent to the exclusive jurisdiction by the state and federal\nAgreement shall continue in effect for so long as such Confidential\ncourts sitting in the State of California of any dispute arising out of or\nInformation remains a Trade Secret, or is retained by Recipient, as\nrelated to this Agreement.\napplicable.\n10.3.\nEnforcement by Successors or Assigns;\n6. No Warranties KBS makes no warranties, express or implied,\nSurvivability. The covenants and agreements contained herein shall\nunder this Agreement or by any Confidential Information\ninure to the benefit of, and may be enforced by, any legal successors or\ndisclosed to Recipient under\nassigns of each Party and shall survive any termination of the\nrelationship between the\n4\nParties, whether such termination is at the instance of either Party, and\nregardless of the reasons therefore.\n10.4. Amendment; Waiver. This Agreement, or any provision\nhereof, shall not be waived, changed or terminated except by a writing\nsigned by an authorized officer of both Parties.\n10.5. Counterparts. This Agreement may be executed in one\nor more counterparts, each of which will constitute an original, but all\nof which together constitute a single document. Any signature duly\naffixed to this Agreement and delivered by facsimile transmission shall\nbe deemed to have the same legal effect as the actual signature of the\nperson signing this Agreement, and any Party receiving delivery of a\nfacsimile copy of the signed Agreement may rely on such as having\nactually been signed.\n10.6. Merger. This Agreement constitutes the entire agreement\nbetween the parties with respect to the subject matter of this\nAgreement, except to the extent of existing non-disclosure agreements\nbetween the parties to which this Agreement supplements (but\nsupersedes to the extent of any inconsistency therein).\n10.7.\nNo Implied Waiver. None of the provisions of this\nAgreement shall be deemed to have been waived by any act or\nacquiescence on the part of KBS, its agents, or employees, but only by\nan instrument in writing signed by an authorized officer of KBS. No\nwaiver of any provision of this Agreement shall constitute a waiver of\nany other provision(s) or of the same provision on another occasion.\n10.8. No Assignment. The Recipient may not assign its rights\nor obligations under this Agreement without the express written\nconsent of KBS.\n10.9. Headings and Construction. The headings of Sections in\nthis Agreement are provided for convenience only and will not affect\nits construction or interpretation. All references to "Section" or\n"Sections" refer to the corresponding Section or Sections of this\nAgreement unless otherwise specified. All words used in this\nAgreement will be construed to be of such gender or number as the\ncircumstances require. Unless otherwise expressly provided, the word\n"including" does not limit the preceding words or terms.\n5\nThe parties hereto have executed this Agreement as of the date noted above.\nRecipient Name:\nKBS Capital Advisors LLC\nBy:\nBy:\nName (print):\nName (print)\nTitle:\nTitle:\nS7-1 Non-Disclosure Agreement\nThis Non-Disclosure Agreement (this “Agreement”) is made this day of\n,20\n, by and among KBSIII REIT Acquisition VII, LLC,\na Delaware limited liability company (“KBS REIT VII”), KBS Limited Partnership III, a Delaware limited liability partnership (“KBS LP III”),\nKBS Real Estate Investment Trust III, Inc., a Maryland corporation (“KBS III Inc.”), KBS Capital Advisors LLC, a Delaware limited liability\ncompany (“KBS CA”), and\n,a\n(the “Recipient”) (KBS REIT VII, KBS LP III, KBS III Inc. and KBS CA are\ncollectively referred to as “KBS”; Recipient and KBS are sometimes referred to in this Agreement individually as a “Party” or collectively as the\n“Parties”).\nKBS and Recipient wish to have discussions during which Recipient may be exposed to important business and/or technical information\nwhich is the property of KBS. Such disclosures may be in the form of written materials, by oral disclosure, or through learned observation, and may\ninclude certain plans, designs, data, operations, financial positions and projections, business and technical information, trade secrets, techniques,\nmethods, supplier and vendor contacts and methods, development plans, acquisition plans, financing options and plans, profit margins, services,\nproprietary information, and other confidential information. Much of this information is the result of substantial expenditures of time, money,\ntechnical expertise, and resources. And KBS considers this information confidential and/or a trade secret. The unauthorized use or disclosure of this\ninformation could cause significant harm to KBS’s business. For this reason and in consideration of the mutual covenants contained in this\nAgreement and the disclosure of confidential information to Recipient, the Parties agree as follows:\n3\n1. Definitions. For purposes of this Agreement, the following\ndefinitions apply:\n1.1.\n“Confidential Information” means KBS’s non-public,\nconfidential and proprietary information and specifically includes, but\nis not necessarily limited to, the following: (A) plans, data, operations,\nfinancial positions, historical performance and projections, business\nand technical information, techniques, methods, supplier and vendor\ncontacts, development plans, acquisition plans, financing options and\nplans, profit margins, services, methodologies, techniques, designs\n(architectural or otherwise), specifications, tenant lists, tenant\ninformation, leasing plans or strategies, market information, marketing\nplans, personnel information, other financial information, business\nstrategies, rent and pricing policies, contractual relations with\ncustomers and suppliers, business acquisition plans, business\nopportunities, new personnel acquisition plans, and information, books,\nrecords, patent applications, proprietary information, and other\nconfidential information and know-how relating to the business of\nKBS; (B) information received by KBS from third parties under\nconfidential conditions, which information is identified by KBS as\nbeing subject to such conditions; and (C) KBS’s Trade Secrets.\nConfidential Information does not include any information that: (W) is\nor subsequently becomes publicly available without the Recipient’s\nbreach, directly or indirectly, of any obligation owed to KBS;\n(X) became known to the Recipient prior to KBS’s disclosure of such\ninformation to the Recipient as can be proven by Recipient’s written\nrecords; (Y) became known to the Recipient from a source other than\nKBS other than by the breach of an obligation of confidentiality owed\nto KBS; or (Z) is independently developed, without any use of KBS’s\nConfidential Information, by the Recipient as evidenced by its written\nrecords.\n1.2.\n“Trade Secrets” means information that: derives economic\nvalue, actual or potential, from not being generally known to, or readily\nascertainable by proper means by, other persons who can obtain\neconomic value\nfrom its disclosure or use, and that is the subject of efforts that are\nreasonable under the circumstances to maintain its secrecy.\n2. Obligations of Recipient. Recipient covenants and agrees that:\n2.1. It will hold all Confidential Information in trust and in the\nstrictest confidence and protect it in accordance with a standard of care\nthat shall be no less than the care it uses to protect its own information\nof like importance but in no event with less than reasonable care;\n2.2. It will not use, copy, or disclose, or permit any unauthorized\nperson access to, any Confidential Information without KBS’s\npermission, to be granted or withheld in KBS’s sole discretion, and\nprovided that any existing confidentiality notices are included in such\nreproductions or, if no such notices are included, “Confidential” or\nsome similar notice is stamped on the Confidential Information;\n2.3. It may only disclose Confidential Information to its directors,\nofficers, employees, consultants, insurers, reinsurers, auditors,\nregulators, attorneys and agents (“Representatives”) provided such\nRepresentatives (i) have a need to know and (ii) are informed, directed\nand obligated by Recipient to treat such Confidential Information in\naccordance with the obligations of this Agreement. Recipient agrees to\nbe liable for any breach of an obligation hereunder by any of its\nRepresentatives;\n2.4. All Confidential Information, including all tangible\nembodiments, copies, reproductions and summaries thereof, and any\nother information and materials provided by KBS to the Recipient shall\nremain the sole and exclusive property of KBS.\n2.5. It shall immediately report to KBS any use or disclosure by the\nRecipient’s employees or any other person of which the Recipient has\nknowledge of any portion of the Confidential Information without\nauthorization from KBS, and will reasonably cooperate with KBS to\nhelp KBS\n4\nregain possession of the Confidential Information and prevent its\nfurther unauthorized use.\n2.6. Upon the written request of KBS, Recipient will effect the\ndestruction of all memoranda, notes, records, tapes, documentation,\ndisks, manuals, files, originals, copies, reproductions and summaries\n(in any form or format, including without limitation, copies resident in\nlong or short-term computer storage devices) of, to the extent they\nconcern or contain Confidential Information that are in Recipient’s\npossession, whether made or compiled by Recipient or furnished to\nRecipient by KBS; provided that Recipient, as a regulated entity, may\nretain the Confidential Information for the purposes of and for so long\nas required by any law, court or regulatory agency or authority or its\ninternal compliance procedures. The confidentiality obligations of this\nAgreement shall continue to apply to such Confidential Information\nretained by Recipient or its Representatives for so long as Recipient or\nits Representatives retains such Confidential Information.\n3. Obligation of Recipient. The Recipient’s obligations to maintain\nthe confidentiality of Confidential Information pursuant to Section 2\nspecifically include, but are not limited to, not disclosing Confidential\nInformation to any persons or entities engaged in a field of business\nsimilar to KBS or in the non-traded REIT industry.\n4. Exception. The obligations of confidentiality imposed by this\nAgreement do not apply to any Confidential Information that is\nrequired to be disclosed pursuant to operation of law or legal process,\ngovernmental regulation or court order. If Recipient receives a court\norder or other governmental or administrative decree of appropriate\nand sufficient jurisdiction requiring disclosure of KBS’s Confidential\nInformation, Recipient shall give KBS prompt notice prior to such\ndisclosure, if legally permitted, in order to permit KBS, at its expense,\nto seek a protective order in the case of a court order or other\ngovernmental or administrative decree. Recipient agrees to reasonably\ncooperate with KBS, at KBS’s expense and subject to applicable law,\nto limit such disclosure. Recipient shall also reasonably cooperate with\nKBS in seeking a protective order subject to the payment by KBS of all\nout-of-pocket expenses incurred by the party providing such\ncooperation at the request of KBS. Recipient shall release only so\nmuch of KBS’s Confidential Information as Recipient’s counsel\nadvises is required by such order.\n5. Duration. The restrictions on use and disclosure of Confidential\nInformation shall survive for a period of two (2) years. However, with\nrespect to Confidential Information that constitutes (i) a Trade Secret,\nor (ii) is retained by Recipient pursuant to the second clause of\nSection 2.6(ii) above, the confidentiality obligations set forth in this\nAgreement shall continue in effect for so long as such Confidential\nInformation remains a Trade Secret, or is retained by Recipient, as\napplicable.\n6. No Warranties. KBS makes no warranties, express or implied,\nunder this Agreement or by any Confidential Information\ndisclosed to Recipient under\nthis Agreement. All information disclosed hereunder is provided\n“as is.”\n7. No Licenses or Other Obligations. By disclosing information to\nthe Recipient, KBS does not grant any express or implied rights or\nlicenses to the Recipient with respect to any patents, copyrights,\ntrademarks, Trade Secrets or other proprietary rights of KBS. Nothing\nin this Agreement shall obligate KBS to disclose any information to\nRecipient or to engage in any other business activity with Recipient.\n8.\nRepresentations and Covenants.\nRecipient represents,\ncovenants, acknowledges, and agrees that:\n8.1. It is aware and its Representatives have been advised that\nsecurities laws prohibit any person who has material non-public\ninformation about a public company from purchasing or selling\nsecurities of such company.\n8.2. This Agreement (and any Confidential Information) is\ndelivered upon the express condition that Recipient will not publicize\nin any manner whatsoever by way of interviews, responses to questions\nor inquiries, press releases or otherwise, any aspect or proposed aspect\nof the subject matter of the Confidential Information without prior\nnotice to and approval of KBS, except as may otherwise be required by\nlaw.\n9. Threatened Breach; Breach; Remedies. In the event of any\nbreach of this Agreement by Recipient, including, without limitation,\nthe actual or threatened disclosure of Confidential Information without\nthe prior express written consent of KBS, KBS will suffer an\nirreparable injury, such that no remedy at law will afford it adequate\nprotection against, or appropriate compensation for, such injury.\nAccordingly, Recipient hereby agrees that KBS shall be entitled,\nwithout waiving any other rights or remedies, to seek specific\nperformance of the Recipient’s obligations as well as such other\ninjunctive relief as may be granted by a court of competent jurisdiction.\n10. Miscellaneous.\n10.1. Severability. If any provision of this Agreement shall not\nbe valid for any reason, such provision shall be entirely severable from,\nand shall have no effect upon, the remainder of this Agreement. Any\nsuch invalid provision shall be subject to partial enforcement to the\nextent necessary to protect the interest of KBS.\n10.2. Governing Law; Forum. This Agreement shall be\nconstrued and controlled by the laws of the State of California without\nreference to the provisions governing conflict of laws, and both parties\nfurther consent to the exclusive jurisdiction by the state and federal\ncourts sitting in the State of California of any dispute arising out of or\nrelated to this Agreement.\n10.3.\nEnforcement by Successors or Assigns;\nSurvivability. The covenants and agreements contained herein shall\ninure to the benefit of, and may be enforced by, any legal successors or\nassigns of each Party and shall survive any termination of the\nrelationship between the\n5\nParties, whether such termination is at the instance of either Party, and\nregardless of the reasons therefore.\n10.4. Amendment; Waiver. This Agreement, or any provision\nhereof, shall not be waived, changed or terminated except by a writing\nsigned by an authorized officer of both Parties.\n10.5. Counterparts. This Agreement may be executed in one\nor more counterparts, each of which will constitute an original, but all\nof which together constitute a single document. Any signature duly\naffixed to this Agreement and delivered by facsimile transmission shall\nbe deemed to have the same legal effect as the actual signature of the\nperson signing this Agreement, and any Party receiving delivery of a\nfacsimile copy of the signed Agreement may rely on such as having\nactually been signed.\n10.6. Merger. This Agreement constitutes the entire agreement\nbetween the parties with respect to the subject matter of this\nAgreement, except to the extent of existing non-disclosure agreements\nbetween the parties to which this Agreement supplements (but\nsupersedes to the extent of any inconsistency therein).\n10.7. No Implied Waiver. None of the provisions of this\nAgreement shall be deemed to have been waived by any act or\nacquiescence on the part of KBS, its agents, or employees, but only by\nan instrument in writing signed by an authorized officer of KBS. No\nwaiver of any provision of this Agreement shall constitute a waiver of\nany other provision(s) or of the same provision on another occasion.\n10.8. No Assignment. The Recipient may not assign its rights\nor obligations under this Agreement without the express written\nconsent of KBS.\n10.9. Headings and Construction. The headings of Sections in\nthis Agreement are provided for convenience only and will not affect\nits construction or interpretation. All references to “Section” or\n“Sections” refer to the corresponding Section or Sections of this\nAgreement unless otherwise specified. All words used in this\nAgreement will be construed to be of such gender or number as the\ncircumstances require. Unless otherwise expressly provided, the word\n“including” does not limit the preceding words or terms.\nThe parties hereto have executed this Agreement as of the date noted above.\nRecipient Name:\nKBS Capital Advisors LLC\nBy:\nBy:\nName (print):\nName (print):\nTitle:\nTitle:\nS7-1 5fef505c7e8c60c597f150f2f2976684.pdf effective_date jurisdiction party term Exhibit (d)(4)\nRECIPROCAL CONFIDENTIALITY AGREEMENT\nTHIS RECIPROCAL CONFIDENTIALITY AGREEMENT (hereinafter the “Agreement”) is made as of this 16th day of August\n2018, between CafePress Inc., having its principal place of business at 11909 Shelbyville Road, Louisville, Kentucky 40243\n(“CafePress”) and District Photo, Inc., having its principal place of business at 10501 Rhode Island Avenue, Beltsville, MD 20705\n(“Company”).\nWHEREAS, in connection with discussions between Company and CafePress concerning a potential transaction between the parties,\neach party (as the “Disclosing Party”) may find it necessary and desirable to disclose to the other party (as the “Recipient”) certain\ninformation which is proprietary and/or confidential to the Disclosing Party.\nNOW, THEREFORE, in consideration of the disclosure of Confidential Information by each party and each party’s willingness to\nprotect the Confidential Information of the other party it is hereby agreed as follows:\n1. CONFIDENTIAL INFORMATION. For purposes of this Agreement, the term “Confidential Information” shall mean:\n(a) Any non-public information, know-how, data, program, software, process, method, procedure, protocol, design, drawing,\ndiagram, formula, strategy, technology, algorithm, specification or work in progress, or other manufacturing, marketing, financial,\nbusiness, technical or personnel information, as well as information pertaining to sales, suppliers, customers, employees, services, or\nbusiness operations or plans, whether in oral, written, graphic, electronic or any other form, which is learned or disclosed in the\ncourse of the discussions and/or business dealings of the parties; and\n(b) Any document or other communication which is marked “confidential” or is known or should be known by the Recipient to be\nconfidential or of a proprietary nature and is learned or disclosed in the course of the discussions and/or business dealings of the\nparties.\nConfidential Information may also include information of third parties to whom the Disclosing Party has an obligation to treat the\ninformation as confidential. The Disclosing Party will have the sole discretion to determine the information it will disclose under this\nAgreement. Confidential Information will remain the property of the Disclosing Party at all times.\n2. TREATMENT OF CONFIDENTIAL INFORMATION.\n(a) The Recipient will not at any time disclose the Disclosing Party’s Confidential Information to any person, or use the Disclosing\nParty’s Confidential Information for any purpose other than determining the feasibility of a business relationship between the parties.\nThe Recipient shall only disclose the Disclosing Party’s Confidential Information to those of its employees and agents who have a\nneed to know such information for the purpose described above, and who are under an obligation of confidentiality with respect to\nsuch information at least as restrictive as that set forth in this Agreement.\n(b) The Recipient will use the same degree of care to protect the Disclosing Party’s Confidential Information as it uses to protect its\nown information of similar importance, but in no event less than reasonable care. The Recipient shall not reverse engineer, decompile\nor disassemble any equipment, software or other computer program disclosed to the Recipient under this Agreement.\n(c) The Recipient shall not export the Disclosing Party’s Confidential Information without the Disclosing Party’s written consent,\nand then only in compliance with all applicable law, rules and regulations.\n3. RETURN OF CONFIDENTIAL INFORMATION. The Recipient shall promptly return the Disclosing Party’s Confidential\nInformation to the Disclosing Party upon termination of the business relationship between the parties, or upon request, if earlier.\n4. NON-PROTECTED INFORMATION. The Recipient’s obligations set forth in this Agreement shall not apply to:\n(a) Information that, at the time it is disclosed, is already in the Recipient’s rightful possession or available to it or its employees\nfrom any other source having no obligation not to disclose it, without obligation of confidentiality.\n(b) Information that is, or any time hereafter becomes, available to the public without breach of this Agreement by the Recipient.\n(c) Information that, after it is disclosed, is at any time obtained by the Recipient from any other person having no obligation not to\ndisclose it, without obligation of confidentiality.\n(d) Information that is independently developed by the Recipient without use of or reference to the Confidential Information of the\nDisclosing Party.\n5. COURT ORDERED DISCLOSURE. Recipient shall not be liable for disclosure of the Disclosing Party’s Confidential\nInformation if made in response to a valid order of a court or authorized agency of government or otherwise as required by law, rule\nor regulation, including without limitation, as necessary to comply with applicable securities regulations; provided that the Recipient\nprovides reasonable notice to the Disclosing Party so that the Disclosing Party may seek to prevent or limit such disclosure, or to\nobtain confidential treatment for such disclosure.\n6. TERM. The period during which disclosures may be made under this Agreement (the “Disclosure Period”) shall be one (1) year,\nand the obligations of confidentiality set forth herein shall continue for a period of three (3) years following the expiration of the\nDisclosure Period, except that with respect to trade secret information, the obligations of confidentiality shall continue indefinitely.\n7. NO LICENSE; NO WARRANTY. Neither the disclosures made under this Agreement, nor this Agreement, shall be construed\nto convey any right, title, interest, or copyright in any Confidential Information or any license to use, sell, exploit, copy or develop\nfurther any Confidential Information. This Agreement, and the disclosures made hereunder, do not in any way bind the parties to\nenter into or continue a business relationship of any type with the other. ALL CONFIDENTIAL INFORMATION IS PROVIDED\n“AS IS”, WITHOUT EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING BUT NOT LIMITED TO\nWARRANTIES OF ACCURACY, COMPLETENESS OR NON-INFRINGEMENT, AND ANY SUCH WARRANTIES ARE\nHEREBY DISCLAIMED.\n8. GOVERNING LAW. This Agreement shall be construed for all purposes in accordance with the law of the Commonwealth of\nKentucky, exclusive of its choice of law principles. The Kentucky federal or state courts for Jefferson County will have exclusive\njurisdiction and venue over any dispute arising out of or relating to this Agreement, and each party hereby irrevocably consents to the\npersonal jurisdiction of and venue in such courts.\n9. SEVERABILITY. If any of the provisions of this Agreement is declared void, invalid or unenforceable, such provisions shall be\nsevered from this Agreement, which shall otherwise remain in full force and effect.\n10. REMEDIES. The parties agree that, if there is a breach of this Agreement by either party, the other shall have all remedies\navailable to it in law and/or equity. The Recipient acknowledges that its breach of this Agreement will result in immediate and\nirreparable harm to the Disclosing Party, for which there will be no adequate remedy at law, and that in such event the Disclosing\nParty will be entitled to seek appropriate equitable relief as may be granted by a court of competent jurisdiction.\n11. ATTORNEY FEES. In the event any suit or other action is commenced to construe or enforce any provision of this\nAgreement, the prevailing party, in addition to all other amounts, shall be entitled to reasonable attorney’s fee and court costs.\n12. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties with respect to the subject\nmatters addressed herein, and supersedes any and all prior and contemporaneous agreements (whether oral or written) between the\nparties regarding such subject matter. This Agreement may not be amended, modified or waived, in whole or in part, except in\nwriting signed by both parties. A party’s failure to require performance will not affect the right to require performance at any later\ntime.\n13. ASSIGNEES AND SUCCESSORS. Neither party may assign this Agreement without the other party’s written consent, except\nthat no consent is needed for an assignment of this Agreement in connection with a merger, acquisition, reorganization or sale of all\nor substantially all of a party’s assets. Any assignment in violation of this Agreement will be void. This Agreement shall benefit and\nbe binding upon the parties hereto and their respective, permitted assignees and successors.\n14. COUNTERPARTS. This Agreement may be executed by facsimile and/or in counterparts.\nIN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the date set forth above.\nCafePress Inc.\nDistrict Photo, Inc.\n/s/ Ekumene M. Lysonge\n/s/ Kurt Sturn\nSignature\nSignature\nEkumene M. Lysonge\nKurt Sturn\nName (please print)\nName (please print)\nVice President & General Counsel\nDirector\nTitle (please print)\nTitle (please print) Exhibit (d)(4)\nRECIPROCAL CONFIDENTIALITY AGREEMENT\nTHIS RECIPROCAL CONFIDENTIALITY AGREEMENT (hereinafter the ”A greement”) is made as of this 16th day of August\n2018, between CafePress Inc., having its principal place of business at 11909 Shelbyville Road, Louisville, Kentucky 40243\n(”CafePress") and District Photo, Inc., having its principal place of business at 10501 Rhode Island Avenue, Beltsville, MD 20705\n(”Company”).\nWHEREAS, in connection with discussions between Company and CafePress concerning a potential transaction between the parties,\neach party (as the ”Disclosing Party") may find it necessary and desirable to disclose to the other party (as the ”Recipient”) certain\ninformation which is proprietary and/or confidential to the Disclosing Party.\nNOW, THEREFORE, in consideration of the disclosure of Confidential Information by each party and each party’s willingness to\nprotect the Confidential Information of the other party it is hereby agreed as follows:\n1. C O NFIDENTIAL INFORMATION. For purposes of this A greement, the term ”Confidential Information” shall mean:\n(a) Any non-public information, know-how, data, program, software, process, method, procedure, protocol, design, drawing,\ndiagram, formula, strategy, technology, algorithm, specification or work in progress, or other manufacturing, marketing, financial,\nbusiness, technical or personnel information, as well as information pertaining to sales, suppliers, customers, employees, services, or\nbusiness operations or plans, whether in oral, written, graphic, electronic or any other form, which is learned or disclosed in the\ncourse of the discussions and/or business dealings of the parties; and\n(b) Any document or other communication which is marked ”confidential" or is known or should be known by the Recipient to be\nconfidential or of a proprietary nature and is learned or disclosed in the course of the discussions and/or business dealings of the\nparties.\nConfidential Information may also include information of third parties to whom the Disclosing Party has an obligation to treat the\ninformation as confidential. The Disclosing Party will have the sole discretion to determine the information it will disclose under this\nAgreement. Confidential Information will remain the property of the Disclosing Party at all times.\n2. TREATMENT OF CONFIDENTIAL INFORMATION.\n(a) The Recipient will not at any time disclose the Disclosing Party's Confidential Information to any person, or use the Disclosing\nParty’ s Confidential Information for any purpose other than determining the feasibility of a business relationship between the parties.\nThe Recipient shall only disclose the Disclosing Party's Confidential Information to those of its employees and agents who have a\nneed to know such information for the purpose described above, and who are under an obligation of confidentiality with respect to\nsuch information at least as restrictive as that set forth in this Agreement.\n(b) The Recipient will use the same degree of care to protect the Disclosing Party's Confidential Information as it uses to protect its\nown information of similar importance, but in no event less than reasonable care. The Recipient shall not reverse engineer, decompile\nor disassemble any equipment, software or other computer program disclosed to the Recipient under this A greement.\n(c) The Recipient shall not export the Disclosing Party's Confidential Information without the Disclosing Party’s written consent,\nand then only in compliance with all applicable law, rules and regulations.\n \n3. RETURN OF CONFIDENTIAL INFORMATION. The Recipient shall promptly return the Disclosing Party's Confidential\nInformation to the Disclosing Party upon termination of the business relationship between the parties, or upon request, if earlier.\n4. NO N-PROTECTED INFORMATION. The Recipient' s obligations set forth in this Agreement shall not apply to:\n(a) Information that, at the time it is disclosed, is already in the Recipient’s rightful possession or available to it or its employees\nfrom any other source having no obligation not to disclose it, without obligation of confidentiality.\n(b) Information that is, or any time hereafter becomes, available to the public without breach of this Agreement by the Recipient.\n(c) Information that, after it is disclosed, is at any time obtained by the Recipient from any other person having no obligation not to\ndisclose it, without obligation of confidentiality.\n(d) Information that is independently developed by the Recipient without use of or reference to the Confidential Information of the\nDisclosing Party.\n5. COURT ORDERED DISCLOSURE. Recipient shall not be liable for disclosure of the Disclosing Party's Confidential\nInformation if made in response to a valid order of a court or authorized agency of government or otherwise as required by law, rule\nor regulation, including without limitation, as necessary to comply with applicable securities regulations; provided that the Recipient\nprovides reasonable notice to the Disclosing Party so that the Disclosing Party may seek to prevent or limit such disclosure, or to\nobtain confidential treatment for such disclosure.\n6. TERM. The period during which disclosures may be made under this Agreement (the ”Disclosure Period”) shall be one (1) year,\nand the obligations of confidentiality set forth herein shall continue for a period of three (3) years following the expiration of the\nDisclosure Period, except that with respect to trade secret information, the obligations of confidentiality shall continue indefinitely.\n7. NO LICENSE g NO WARRANTY. Neither the disclosures made under this Agreement, nor this Agreement, shall be construed\nto convey any right, title, interest, or copyright in any Confidential Information or any license to use, sell, exploit, copy or develop\nfurther any Confidential Information. This Agreement, and the disclosures made hereunder, do not in any way bind the parties to\nenter into or continue a business relationship of any type with the other. ALL CONFIDENTIAL INFORMATION IS PROVIDED\n”AS IS", WITHOUT EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING BUT NOT LIMITED TO\nWARRANTIES OF ACCURACY, COMPLETENESS OR NON-INFRINGEMENT, AND ANY SUCH WARRANTIES ARE\nHEREBY DISCLAIMED.\n8. GOVERNING LAW. This Agreement shall be construed for all purposes in accordance with the law of the Commonwealth of\nKentucky, exclusive of its choice of law principles. The Kentucky federal or state courts forJefferson County will have exclusive\njurisdiction and venue over any dispute arising out of or relating to this Agreement, and each party hereby irrevocably consents to the\npersonal jurisdiction of and venue in such courts.\n9. SEVERABIL ITY. If any of the provisions of this Agreement is declared void, invalid or unenforceable, such provisions shall be\nsevered from this A greement, which shall otherwise remain in full force and effect.\n10. REMEDIES. The parties agree that, if there is a breach of this Agreement by either party, the other shall have all remedies\navailable to it in law and/or equity. The Recipient acknowledges that its breach of this Agreement will result in immediate and\nirreparable harm to the Disclosing Party, for which there will be no adequate remedy at law, and that in such event the Disclosing\nParty will be entitled to seek appropriate equitable relief as may be granted by a court of competent jurisdiction.\n \n11. ATTORNEY FEES. In the event any suit or other action is commenced to construe or enforce any provision of this Agreement, the prevailing party, in addition to all other amounts, shall be entitled to reasonable attomey’s fee and court costs. 12. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties with respect to the subject matters addressed herein, and supersedes any and all prior and contemporaneous agreements (whether oral or written) between the parties regarding such subject matter. This Agreement may not be amended, modified or waived, in whole or in part, except in writing signed by both parties. A party’s failure to require performance will not affect the right to require performance at any later time.\n13. ASSIG NEES AND SUCCESSORS. Neither party may assign this Agreement without the other party’ s written consent, except that no consent is needed for an assignment of this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of a party’ s assets. Any assignment in violation of this Agreement will be void. This Agreement shall benefit and be binding upon the parties hereto and their respective, permitted assignees and successors. 14. COUNTERPART S. This A greement may be executed by facsimile and/or in counterparts. IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the date set forth above. C afePress Inc.\n/s/ Ekumene M. Lysonge\nSignafiire\nEkumene M. Lysonge\nN ame (please print) —\nVice President & General Counsel\nit e (p ease pnntI\nDistrict Photo, Inc.\n/s/ Kurt Sturn\nS‘—tu1gna re\nKurt Sturn\nN ame (please print) ‘\nDirector\nit e (p ease pnntI Exhibit (d)(4)\nRECIPROCAL CONFIDENTIALITY AGREEMENT\nTHIS RECIPROCAL CONFIDENTIALITY AGREEMENT (hereinafter the "Agreement") is made as of this 16th day of A ugust\n2018, between CafePress Inc., having its principal place of business at 11909 Shelbyville Road, Louisville, Kentucky 40243\n("CafePress") and District Photo, Inc., having its principal place of business at 10501 Rhode Island Avenue, Beltsville, MD 20705\n("Company").\nWHEREAS, in connection with discussions between Company and CafePress concerning a potential transaction between the parties,\neach party (as the "Disclosing Party") may find it necessary and desirable to disclose to the other party (as the "Recipient") certain\ninformation which is proprietary and/or confidential to the Disclosing Party.\nNOW, THEREFORE, in consideration of the disclosure of Confidential Information by each party and each party's willingness to\nprotect the Confidential Information of the other party it is hereby agreed as follows:\n1.\nCONFIDENTIAL INFORMATION. For purposes of this A greement, the term "Confidential Information" shall mean:\n(a)\nAny non-public information, know-how, data, program, software, process, method, procedure, protocol, design drawing,\ndiagram, formula, strategy, technology, algorithm, specification or work in progress, or other manufacturing, marketing, financial,\nbusiness, technical or personnel information, as well as information pertaining to sales, suppliers, customers, employees, services, or\nbusiness operations or plans, whether in oral, written, graphic, electronic or any other form, which is learned or disclosed in the\ncourse of the discussions and/or business dealings of the parties; and\n(b) Any document or other communication which is marked "confidential" or is known or should be known by the Recipient to be\nconfidential or of a proprietary nature and is learned or disclosed in the course of the discussions and/or business dealings of the\nparties.\nConfidential Information may also include information of third parties to whom the Disclosing Party has an obligation to treat the\ninformation as confidential. The Disclosing Party will have the sole discretion to determine the information it will disclose under this\nAgreement. Confidential Information will remain the property of the Disclosing Party at all times.\n2. TREATMENT OF CONFIDENTIAL INFORMATION.\n(a) The Recipient will not at any time disclose the Disclosing Party's Confidential Information to any person, or use the Disclosing\nParty's Confidential Information for any purpose other than determining the feasibility of a business relationship between the parties.\nThe Recipient shall only disclose the Disclosing Party's Confidential Information to those of its employees and agents who have a\nneed to know such information for the purpose described above, and who are under an obligation of confidentiality with respect to\nsuch information at least as restrictive as that set forth in this A greement.\n(b) The Recipient will use the same degree of care to protect the Disclosing Party's Confidentia Information as it uses to protect its\nown information of similar importance, but in no event less than reasonable care. The Recipient shall not reverse engineer, decompile\nor disassemble any equipment, software or other computer program disclosed to the Recipient under this Agreement.\n(c)\nThe Recipient shall not export the Disclosing Party's Confidential Information without the Disclosing Party's written consent\nand then only in compliance with all applicable law, rules and regulations.\n3.\nRETURN OF CONFIDENTIAL INFORMATION. The Recipient shall promptly return the Disclosing Party's Confidential\nInformation to the Disclosing Party upon termination of the business relationship between the parties, or upon request, if earlier.\n4.\nNON-PROTECTED INFORMATION The Recipient's obligations set forth in this greement shall not apply to:\n(a) Information that, at the time it is disclosed, is already in the Recipient's rightful possession or available to it or its employees\nfrom any other source having no obligation not to disclose it, without obligation of confidentiality.\n(b) Information that is, or any time hereafter becomes, available to the public without breach of this A greement by the Recipient.\n(c) Information that, after it is disclosed, is at any time obtained by the Recipient from any other person having no obligation not to\ndisclose it, without obligation of confidentiality.\n(d) Information that is independently developed by the Recipient without use of or reference to the Confidential Information of the\nDisclosing Party.\n5.\nCOURT ORDERED DISCLOSURE. Recipient shall not be liable for disclosure of the Disclosing Party's Confidential\nInformation if made in response to a valid order of a court or authorized agency of government or otherwise as required by law, rule\nor regulation, including without limitation, as necessary to comply with applicable securities regulations; provided that the Recipient\nprovides reasonable notice to the Disclosing Party so that the Disclosing Party may seek to prevent or limit such disclosure, or to\nobtain confidential treatment for such disclosure.\n6. TERM. The period during which disclosures may be made under this Agreement (the "Disclosure Period") shall be one (1) year,\nand the obligations of confidentiality set forth herein shall continue for a period of three (3) years following the expiration of the\nDisclosure Period, except that with respect to trade secret information, the obligations of confidentiality shall continue indefinitely.\n7.\nNO LICENSE; NO WARRANTY. Neither the disclosures made under this Agreement, nor this A greement, shall be construed\nto convey any right, title, interest, or copyright in any Confidential Information or any license to use, sell, exploit, copy or develop\nfurther any Confidentia Information. This Agreement, and the disclosures made hereunder, do not in any way bind the parties to\nenter into or continue a business relationship of any type with the other. ALL CONFIDENTIAL INFORMATION IS PROVIDED\n"AS IS", WITHOUT EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING BUT NOT LIMITED TO\nWARRANTIES OF ACCURACY, COMPLETENESS OR NON-INFRINGEMENT, AND ANY SUCH WARRANTIES ARE\nHEREBY DISCLAIMED.\n8. GOVERNING LAW. This Agreement shall be construed for all purposes in accordance with the law of the Commonwealth of\nKentucky, exclusive of its choice of law principles. The Kentucky federal or state courts for Jefferson County will have exclusive\njurisdiction and venue over any dispute arising out of or relating to this Agreement, and each party hereby irrevocably consents to the\npersonal jurisdiction of and venue in such courts.\n9. SEVERABILITY. If any of the provisions of this Agreement is declared void, invalid or unenforceable, such provisions shall be\nsevered from this A greement, which shall otherwise remain in full force and effect.\n10. REMEDIES. The parties agree that, if there is a breach of this Agreement by either party, the other shall have all remedies\navailable to it in law and/or equity. The Recipient acknowledges that its breach of this Agreement will result in immediate and\nirreparable harm to the Disclosing Party, for which there will be no adequate remedy at law, and that in such event the Disclosing\nParty will be entitled to seek appropriate equitable relief as may be granted by a court of competent jurisdiction.\n11.\nATTORNEY FEES. In the event any suit or other action is commenced to construe or enforce any provision of this\nAgreement, the prevailing party, in addition to all other amounts, shall be entitled to reasonable attorney's fee and court costs.\n12. ENTIRE AGREEMENT. This A greement constitutes the entire agreement between the parties with respect to the subject\nmatters addressed herein, and supersedes any and all prior and contemporaneous agreements (whether oral or written) between the\nparties regarding such subject matter. This Agreement may not be amended, modified or waived, in whole or in part, except in\nwriting signed by both parties. A party's failure to require performance will not affect the right to require performance at any later\ntime.\n13. ASSIGNEES AND SUCCESSORS. Neither party may assign this A greement without the other party's written consent, except\nthat no consent is needed for an assignment of this Agreement in connection with a merger, acquisition, reorganization or sale of all\nor\nsubstantially all of a party's assets. Any assignment in violation of this Agreement will be void. This Agreement shall benefit and\nbe binding upon the parties hereto and their respective, permitted assignees and successors.\n14. COUNTERPARTS. This A greement may be executed by facsimile and/or in counterparts.\nIN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the date set forth above.\nCafePress Inc.\nDistrict Photo, Inc.\n/s/ Ekumene M. Lysonge\n/s/ Kurt Sturn\nSignature\nS1gnature\nEkumene M. Lysonge\nKurt Sturn\nName (please print)\nName (please print)\nVice President & General Counsel\nDirector\nTitle (please print)\nTitle Tplease print) Exhibit (d)(4)\nRECIPROCAL CONFIDENTIALITY AGREEMENT\nTHIS RECIPROCAL CONFIDENTIALITY AGREEMENT (hereinafter the “Agreement”) is made as of this 16th day of August\n2018, between CafePress Inc., having its principal place of business at 11909 Shelbyville Road, Louisville, Kentucky 40243\n(“CafePress”) and District Photo, Inc., having its principal place of business at 10501 Rhode Island Avenue, Beltsville, MD 20705\n(“Company”).\nWHEREAS, in connection with discussions between Company and CafePress concerning a potential transaction between the parties,\neach party (as the “Disclosing Party”) may find it necessary and desirable to disclose to the other party (as the “Recipient”) certain\ninformation which is proprietary and/or confidential to the Disclosing Party.\nNOW, THEREFORE, in consideration of the disclosure of Confidential Information by each party and each party’s willingness to\nprotect the Confidential Information of the other party it is hereby agreed as follows:\n1. CONFIDENTIAL INFORMATION. For purposes of this Agreement, the term “Confidential Information” shall mean:\n(a) Any non-public information, know-how, data, program, software, process, method, procedure, protocol, design, drawing,\ndiagram, formula, strategy, technology, algorithm, specification or work in progress, or other manufacturing, marketing, financial,\nbusiness, technical or personnel information, as well as information pertaining to sales, suppliers, customers, employees, services, or\nbusiness operations or plans, whether in oral, written, graphic, electronic or any other form, which is learned or disclosed in the\ncourse of the discussions and/or business dealings of the parties; and\n(b) Any document or other communication which is marked “confidential” or is known or should be known by the Recipient to be\nconfidential or of a proprietary nature and is learned or disclosed in the course of the discussions and/or business dealings of the\nparties.\nConfidential Information may also include information of third parties to whom the Disclosing Party has an obligation to treat the\ninformation as confidential. The Disclosing Party will have the sole discretion to determine the information it will disclose under this\nAgreement. Confidential Information will remain the property of the Disclosing Party at all times.\n2. TREATMENT OF CONFIDENTIAL INFORMATION.\n(a) The Recipient will not at any time disclose the Disclosing Party’s Confidential Information to any person, or use the Disclosing\nParty’s Confidential Information for any purpose other than determining the feasibility of a business relationship between the parties.\nThe Recipient shall only disclose the Disclosing Party’s Confidential Information to those of its employees and agents who have a\nneed to know such information for the purpose described above, and who are under an obligation of confidentiality with respect to\nsuch information at least as restrictive as that set forth in this Agreement.\n(b) The Recipient will use the same degree of care to protect the Disclosing Party’s Confidential Information as it uses to protect its\nown information of similar importance, but in no event less than reasonable care. The Recipient shall not reverse engineer, decompile\nor disassemble any equipment, software or other computer program disclosed to the Recipient under this Agreement.\n(c) The Recipient shall not export the Disclosing Party’s Confidential Information without the Disclosing Party’s written consent,\nand then only in compliance with all applicable law, rules and regulations.\n3. RETURN OF CONFIDENTIAL INFORMATION. The Recipient shall promptly return the Disclosing Party’s Confidential\nInformation to the Disclosing Party upon termination of the business relationship between the parties, or upon request, if earlier.\n4. NON-PROTECTED INFORMATION. The Recipient’s obligations set forth in this Agreement shall not apply to:\n(a) Information that, at the time it is disclosed, is already in the Recipient’s rightful possession or available to it or its employees\nfrom any other source having no obligation not to disclose it, without obligation of confidentiality.\n(b) Information that is, or any time hereafter becomes, available to the public without breach of this Agreement by the Recipient.\n(c) Information that, after it is disclosed, is at any time obtained by the Recipient from any other person having no obligation not to\ndisclose it, without obligation of confidentiality.\n(d) Information that is independently developed by the Recipient without use of or reference to the Confidential Information of the\nDisclosing Party.\n5. COURT ORDERED DISCLOSURE. Recipient shall not be liable for disclosure of the Disclosing Party’s Confidential\nInformation if made in response to a valid order of a court or authorized agency of government or otherwise as required by law, rule\nor regulation, including without limitation, as necessary to comply with applicable securities regulations; provided that the Recipient\nprovides reasonable notice to the Disclosing Party so that the Disclosing Party may seek to prevent or limit such disclosure, or to\nobtain confidential treatment for such disclosure.\n6. TERM. The period during which disclosures may be made under this Agreement (the “Disclosure Period”) shall be one (1) year,\nand the obligations of confidentiality set forth herein shall continue for a period of three (3) years following the expiration of the\nDisclosure Period, except that with respect to trade secret information, the obligations of confidentiality shall continue indefinitely.\n7. NO LICENSE; NO WARRANTY. Neither the disclosures made under this Agreement, nor this Agreement, shall be construed\nto convey any right, title, interest, or copyright in any Confidential Information or any license to use, sell, exploit, copy or develop\nfurther any Confidential Information. This Agreement, and the disclosures made hereunder, do not in any way bind the parties to\nenter into or continue a business relationship of any type with the other. ALL CONFIDENTIAL INFORMATION IS PROVIDED\n“AS IS”, WITHOUT EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING BUT NOT LIMITED TO\nWARRANTIES OF ACCURACY, COMPLETENESS OR NON-INFRINGEMENT, AND ANY SUCH WARRANTIES ARE\nHEREBY DISCLAIMED.\n8. GOVERNING LAW. This Agreement shall be construed for all purposes in accordance with the law of the Commonwealth of\nKentucky, exclusive of its choice of law principles. The Kentucky federal or state courts for Jefferson County will have exclusive\njurisdiction and venue over any dispute arising out of or relating to this Agreement, and each party hereby irrevocably consents to the\npersonal jurisdiction of and venue in such courts.\n9. SEVERABILITY. If any of the provisions of this Agreement is declared void, invalid or unenforceable, such provisions shall be\nsevered from this Agreement, which shall otherwise remain in full force and effect.\n10. REMEDIES. The parties agree that, if there is a breach of this Agreement by either party, the other shall have all remedies\navailable to it in law and/or equity. The Recipient acknowledges that its breach of this Agreement will result in immediate and\nirreparable harm to the Disclosing Party, for which there will be no adequate remedy at law, and that in such event the Disclosing\nParty will be entitled to seek appropriate equitable relief as may be granted by a court of competent jurisdiction.\n11. ATTORNEY FEES. In the event any suit or other action is commenced to construe or enforce any provision of this\nAgreement, the prevailing party, in addition to all other amounts, shall be entitled to reasonable attorney’s fee and court costs.\n12. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties with respect to the subject\nmatters addressed herein, and supersedes any and all prior and contemporaneous agreements (whether oral or written) between the\nparties regarding such subject matter. This Agreement may not be amended, modified or waived, in whole or in part, except in\nwriting signed by both parties. A party’s failure to require performance will not affect the right to require performance at any later\ntime.\n13. ASSIGNEES AND SUCCESSORS. Neither party may assign this Agreement without the other party’s written consent, except\nthat no consent is needed for an assignment of this Agreement in connection with a merger, acquisition, reorganization or sale of all\nor substantially all of a party’s assets. Any assignment in violation of this Agreement will be void. This Agreement shall benefit and\nbe binding upon the parties hereto and their respective, permitted assignees and successors.\n14. COUNTERPARTS. This Agreement may be executed by facsimile and/or in counterparts.\nIN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the date set forth above.\nCafePress Inc.\nDistrict Photo, Inc.\n/s/ Ekumene M. Lysonge\n/s/ Kurt Sturn\nSignature\nSignature\nEkumene M. Lysonge\nKurt Sturn\nName (please print)\nName (please print)\nVice President & General Counsel\nDirector\nTitle (please print)\nTitle (please print) 64ee806eb8c3db587c89b4215fac31da.pdf effective_date jurisdiction party Exhibit (10)MM\nNON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT\nThis Non-Competition, Non-Solicitation and Confidentiality Agreement (referred to as the\n“Agreement”), is made by and between Target Corporation, a Minnesota corporation, and Target\nEnterprise, Inc., a subsidiary of Target Corporation (“Target Enterprise”), their predecessors, successors,\nparents, subsidiaries, affiliates, joint venture partners, shareholders, officers, and divisions (collectively\nreferred to as “Target”) and Tina Tyler, an employee of Target Enterprise (“Ms. Tyler”). Ms. Tyler and\nTarget are collectively referred to as “the parties” throughout this Agreement.\nWHEREAS, Ms. Tyler has been a key Target executive, and has therefore been granted access to\nTarget’s critical confidential business information, been positioned as a prominent Target representative\nidentified with its good will within the retail industry and corporate community, and developed strong\nrelationships with other Target employees; and\nWHEREAS, in order to protect Target’s critical confidential business information and good will\nfrom use for the benefit of its competitors and to protect its employees from solicitation, and in addition to\nany benefits or compensation she might otherwise receive from Target under any policy, program or\nagreement, Target wishes to provide Ms. Tyler with supplemental compensation in return for Ms. Tyler\nagreeing further not to compete with Target both during and after her employment, solicit Target\nemployees, and disclose Target confidential information; and\nWHEREAS, Ms. Tyler wishes to accept that supplemental compensation in return for her\nacceptance of the terms of this Agreement.\nNOW, THEREFORE, in consideration of the promises and the mutual covenants and agreements\ncontained herein and other good and valuable consideration, the receipt and sufficiency of which is\nhereby acknowledged, Target and Ms. Tyler agree as follows:\n1. Consideration. In exchange for entering into this Agreement, Target agrees to pay Ms. Tyler the\ntotal amount of Three Million Dollars ($3,000,000) (the “Consideration”). Target will pay this\namount, less applicable withholdings as determined by Target, as follows: (1) in one increment of\nOne Million Dollars ($1,000,000) paid on or about January 13, 2017, (2) in one increment of One\nMillion Dollars ($1,000,000) paid on or about January 12, 2018, and (3) in one increment of One\nMillion Dollars ($1,000,000) paid on or about January 11, 2019.\n2. Target Employment. Nothing in this Agreement alters the nature, status or termination of Ms.\nTyler’s employment with Target.\n3. Ms. Tyler’s Covenant. In consideration of this Agreement, and in recognition of the facts that, as a\nresult of her employment with Target, Ms. Tyler has had access to and gained knowledge of\nconfidential and/or proprietary information or trade secrets pertaining to Target, has been identified\nwith its good will within the retail industry and corporate community, has developed strong\nrelationships with other Target employees whom Target wishes to retain, and that Target has\nexpended time, resources and money to obtain or develop these protectable interests, all of which\nhave significant value to Target, Ms. Tyler agrees for the benefit of Target, and as a material\ncondition to her receipt of the consideration described in Paragraph 1, as follows:\n1\na. Non-Competition. Ms. Tyler will not, during her employment and for a period of three (3)\nyears following the date of her termination from Target, perform services directly or\nindirectly (including as an employee, independent contractor, consultant, officer, director,\nor similar relationship), to Amazon.com, Inc.; Best Buy Co., Inc.; Costco Wholesale\nCorporation; CVS Health Corporation; Dollar General Corporation; The Gap, Inc.; The\nHome Depot, Inc.; J.C. Penney Company, Inc.; Kohl’s Corporation; The Kroger Co.;\nLowe’s Companies; Macy’s, Inc.; Publix Super Markets, Inc.; Rite Aid Corporation;\nSafeway Inc.; Sears Holdings Corporation; Staples, Inc.; The TJX Companies, Inc.;\nWalgreens Boots Alliance, Inc.; and Wal-Mart Stores, Inc.; or any parent, subsidiary,\ndivision, or affiliate of any such company (examples of affiliates include entities under\ncommon control, joint venture partners and e-commerce affiliates) (“Competitive Entities”).\nMs. Tyler expressly agrees that due to the nature of the confidential and/or proprietary\ninformation to which she has had access, and her position as a representative identified\nwith the company’s good will while a Target employee, the three (3) year world-wide\nrestriction on her ability to work for the Competitive Entities set forth above is reasonable\nand appropriate. Restrictions on Ms. Tyler’s ability to work for the entities set forth above\nmay be modified or waived at any time at the discretion of Brian Cornell, or the then-acting\nChief Executive Officer, in accordance with the procedure described in Paragraph 8. Any\nsuch waiver or modification must be made in writing.\nb. Non-Solicitation. Ms. Tyler will not, during her employment and for a period of three (3)\nyears following the date of her termination from Target, recruit, solicit or entice, directly or\nindirectly, for employment or performance of services, any employee of Target or any of its\naffiliated companies, unless Ms. Tyler has a written agreement signed by the Executive\nVice President of Human Resources, in accordance with the procedure described in\nParagraph 8, allowing Ms. Tyler to recruit persons named in that agreement.\nc. Confidentiality.\n(i) Ms.Tyler acknowledges and agrees that confidential information of Target and any of its\naffiliates is a valuable, special and unique asset. Such confidential information includes\nwithout limitation:\n(A)employee data and information (including, but not limited to, personnel decisions\nrelating to employees and applicants), and\n(B)present, past and future strategies, plans, and proposals (including but not limited\nto, customer, marketing, merchandising, sourcing, store operations, technology,\nassets protection, distribution, benefits and compensation strategies, plans and\nproposals), and\n(C)financial information, and\n2\n(D)present, past and future personnel and labor relations strategies, plans, practices,\npolicies, training programs and goals.\n(ii) Ms.Tyler will not, during or after the date of her termination from Target, use or disclose\nor cause or permit to be used or disclosed any such information or any other information\nTarget treats as confidential, to any person, firm, corporation, association or other entity\nfor any reason or purpose whatsoever. For avoidance of doubt, nothing in this\nAgreement shall prohibit Ms. Tyler from communicating with a government agency,\nregulator or legal authority concerning any possible violations of federal or state law or\nregulation; however, Ms. Tyler is not authorized to share communications covered and\nprotected from disclosure by Target’s attorney-client privilege.\nd. Consultation and Cooperation. Following the date of her termination from Target, Target may\nrequest that Ms. Tyler consult or cooperate (including, without limitation, providing truthful\ninformation to Target or serving as a witness or testifying at Target’s request without\nsubpoena), and Ms. Tyler agrees to be available at mutually agreeable times to perform such\nduties and provide such cooperation in connection with the various business and legal\nmatters in which Ms. Tyler was involved or of which Ms. Tyler has knowledge as result of her\nemployment with Target. In so consulting or cooperating, Ms. Tyler shall be reimbursed her\nreasonable out-of-pocket expenses.\ne. Remedies for Breach of These Covenants.\n(i) Ms.Tyler acknowledges that any breach of the covenants in Paragraph 3 will cause\nirreparable harm to Target for which money damages could not reasonably or\nadequately compensate Target. Accordingly, Target shall be entitled to seek all\navailable forms of injunctive relief (whether temporary, preliminary, or permanent) to\nenforce the covenant, in addition to repayment of any consideration provided hereunder\nby Target to the date of breach, damages recoverable by law and all other available\nremedies. Ms. Tyler consents to the issuance of injunctive relief without the necessity of\nTarget posting a bond or, if a court requires a bond to be posted, with a bond of no\ngreater than Five Hundred Dollars ($500) in principal amount.\n(ii) In addition to any other remedies available to Target, in the event Ms. Tyler breaches\nany of her obligations under Paragraphs 3.a ., b., c., or d. of this Agreement, then Target\n(A) will be relieved of all liability and obligation to make any further payments under this\nAgreement, and (B) may demand the return of any payments previously paid to Ms.\nTyler under this Agreement.\n4. Extension of Covenants. Ms. Tyler agrees that if she violates any of the covenants in Paragraph 3,\nthe restrictions therein shall be extended for the amount of time during which a court determines\nthat she was in violation of that Paragraph.\n5. Enforceability. If any one or more of the provisions of this Agreement is held invalid, illegal, or\nunenforceable in any respect, such provision shall be severable, and the\n3\nvalidity, legality, and enforceability of the remaining provisions contained in this Agreement will not\nin any way be affected or impaired thereby. If any restriction in this Agreement is deemed by a\ncourt to be overbroad, Ms. Tyler and Target expressly authorize the court to impose the broadest\nlimitations permissible under the law.\n6. Assignment. The parties agree that the rights and obligations under this Agreement shall inure to\nand be binding on Target, and its successors and assigns, but the rights and obligations of Ms.\nTyler under this Agreement are personal and may not be assigned to any other person or entity.\nHowever, if Ms. Tyler dies before all the Consideration is paid, the remaining Consideration will be\npaid to her estate.\n7. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall\nbe deemed an original, but all of which shall constitute one and the same instrument.\n8. Amendment; Waivers. This Agreement may not be modified, amended, waived or discharged in\nany manner except by an instrument in writing signed by both parties hereto. The execution of any\nsuch modification, amendment or waiver shall be in the sole discretion of an authorized officer of\nTarget. The waiver by either party of compliance with any provision of this Agreement by the other\nparty shall not operate or be construed as a waiver of any other provision of this Agreement, or of\nany subsequent breach by such party of a provision of this Agreement.\n9. Entire Agreement. This Agreement embodies the entire agreement and understanding between\nTarget and Ms. Tyler pertaining to the payment of the consideration described in Paragraph 1\nhereof. For the sake of clarity, Target and Ms. Tyler have simultaneously executed an Income\nContinuance Agreement which contains parallel covenants. The Income Continuance Agreement is\nsupported by independent consideration and is intended to operate separately and independently\nof this Agreement.\n10. Code Section 409A. For all purposes under Section 409A of the Internal Revenue Code (“Section\n409A), each payment under this Agreement shall be treated as a separate payment. It is the\nintention of the parties that the January 13, 2017, payment be exempt from the requirements of\nSection 409A because it is a short term deferral under Treas. Reg. Sec. 1.409A-1(b)(4), and that\nthe balance of the payments, are intended to comply both in form and operation with the\nrequirements of Section 409A, and this Agreement will be construed and administered in a manner\nconsistent with such intent. Target reserves the right to adopt such rules, regulations or procedures\nthat are deemed necessary or appropriate to comply with the requirements of Section 409A. Any\npayments that are subject to the requirements of Section 409A may be accelerated or delayed only\nif and to the extent otherwise permitted under Section 409A.\n11. Reporting. Until all Consideration is paid pursuant to this Agreement, Ms. Tyler shall promptly\ninform Target of the name and business address of each business or person for which Ms. Tyler\nperforms services, and shall provide a summary description of the nature and principal business\nlocations of each such business or person. Ms. Tyler shall also provide her title, principal duties,\naddress and phone number. Significant changes to employment, services, duties or location must\nbe promptly reported. Such\n4\nreports shall be provided to the Executive Vice President, Human Resources, in accordance with\nthe procedure described in Paragraph 8.\n12. Governing Law. This Agreement will be construed and interpreted in accordance with the laws of\nthe State of Minnesota as interpreted by Minnesota state and federal courts.\n13. Jurisdiction. Any action or proceeding seeking to enforce or interpret any provision of, or based\nupon any right arising out of, this Agreement may be brought against any of the parties in the\nfederal or state courts located in Minneapolis, Minnesota, and each of the parties consents to the\njurisdiction of such courts (and of the appropriate appellate courts) in any such action or\nproceeding, and waives any objection to venue therein.\n14. Effective Date. This Agreement shall be effective on the earliest date it is executed by all parties\nhereto (the “Effective Date”).\n15. Authorization. Target affirms that this Agreement is duly authorized by all necessary parties.\n5\nDated: January 19, 2016\n/s/ Tina Tyler\nTINA TYLER\nDated: January 27, 2016\nTARGET CORPORATION\nBy: /s/ Jodee Kozlak\nIts: CHRO\nDated: January 27, 2016\nTARGET ENTERPRISE, INC.\nBy: /s/ Jodee Kozlak\nIts: CHRO\n6 Exhibit (10)MM\nNON-COMPETITIONI NON-SOLIC ITATION\nAND CONFIDENTIALITY AGREEMENT\nThis Non-Competition, Non-Solicitation and Confidentiality Agreement (referred to as the\n“Agreement”), is made by and between TargetCorporation, a Minnesota corporation, and Target\nE nterprise, Inc., a subsidiary ofTarget Corporation ('Target E nterprise”), their predecessors, successors,\nparents, subsidiaries, affiliates, jointventure partners, shareholders, officers, and divisions (collectively\nreferred to as 'Target”) and Tina Tyler, an employee ofTarget Enterprise (“Ms. Tyler”). Ms. Tyler and\nTarget are collectively referred to as “the pa rties” throughout this Agreement.\nWHEREAS, Ms. Tyler has been a key Target executive, and has therefore been granted access to\nTarget's critical confidential business information, been positioned as a prominentTarget representative\nidentified with its good will within the retail industry and corporate community, and developed strong\nrelationships with other Target employees; and\nWHEREAS, in orderto protectTarget’s critical confidential business information and good will\nfrom use for the benefit of its competitors and to protect its employees from solicitation, and in addition to\nany benefits or compensation she might otherwise receive from Target under any policy, program or\nagreement, Targetwishes to provide Ms. Tyler with supplemental compensation in return for Ms. Tyler\nagreeing further notto compete with Target both during and after her employment, solicitTarget\nemployees, and disclose Target confidential information; and\nWHEREAS, Ms. Tyler wishes to accept thatsupplemental compensation in return for her\nacceptance ofthe terms of this Agreement.\nNOW, THEREFORE, in consideration of the promises and the mutual covenants and agreements\ncontained herein and other good and valuable consideration, the receipt and sufficiency ofwhich is\nhereby acknowledged, Targetand Ms. Tyler agree as follows:\n1. Consideration. In exchange for entering into this Agreement, Target agrees to pay Ms. Tyler the\ntotal amount ofThree Million Dollars ($3,000,000) (the “Consideration”). Targetwill pay this\namount, less applicable withholdings as determined by Target, as follows: (1) in one increment of\nOne Million Dollars ($1,000,000) paid on or about) anuary 13, 2017, (2) in one increment ofOne\nMillion Dollars ($1,000,000) paid on or about) anuary 12, 2018, and (3) in one increment ofOne\nMillion Dollars ($1,000,000) paid on or about) anuary 11,2019.\n2. Target Employment. Nothing in this Agreementalters the nature, status ortermination of Ms.\nTyler's employment with Target.\n3. Ms. Tyler's Covenant. In consideration of this Agreement, and in recognition ofthe facts that, as a\nresult of her employment with Target, Ms. Tyler has had access to and gained knowledge of\nconfidential and/or proprietary information or trade secrets pertaining to Target, has been identified\nwith its good will within the retail industry and corporate community, has developed strong\nrelationships with other Targetemployees whom Targetwishes to retain, and thatTarget has\nexpended time, resources and money to obtain or develop these protectable interests, all ofwhich\nhave significant value to Target, Ms. Tyler agrees forthe benefit ofTarget, and as a material\ncondition to her receipt of the consideration described in Paragraph 1, as follows:\na. Non-Competition. Ms. Tyler will not, during her employmentand fora period of three (3)\nyears following the date of her termination from Target, perform services directly or\nindirectly (including as an employee, independent contractor, consultant, officer, director,\nor similar relationship), to Amazon.com, lnc.; Best Buy Co., lnc.; Costco Wholesale\nCorporation; CVS Health Corporation; DollarGeneral Corporation; The Gap, lnc.; The\nHome Depot, lnc.; J .C. Penney Company, lnc.; Kohl's Corporation; The KrogerCo.;\nLowe’s Companies; Macy’s, lnc.; Publix Super Markets, lnc.; Rite Aid Corporation;\nSafeway lnc.; Sears Holdings Corporation; Staples, lnc.; The T) X Companies, lnc.;\nWalgreens Boots Alliance, lnc.; and Wal-Mart Stores, lnc.; or any parent, subsidiary,\ndivision, or affiliate of any such company (examples ofaffiliates include entities under\ncommon control, joint venture partners and e-commerce affiliates) (“Competitive Entities”).\nMs. Tyler expressly agrees that due to the nature of the confidential and/or proprietary\ninformation to which she has had access, and her position as a representative identified\nwith the company's good will while a Target employee, the three (3) year world-wide\nrestriction on her ability to work forthe Competitive Entities set forth above is reasonable\nand appropriate. Restrictions on Ms. Tyler's ability to work forthe entities setforth above\nmay be modified or waived at any time atthe discretion of Brian Cornell, orthe then-acting\nChief Executive Officer, in accordance with the procedure described in Paragraph 8. Any\nsuch waiver or modification must be made in writing.\nb. Non-Solicitation. Ms. Tyler will not, during her employmentand fora period of three (3)\nyears following the date of her termination from Target, recruit, solicit or entice, directly or\nindirectly, for employment or performance of services, any employee of Target or any of its\naffiliated companies, unless Ms. Tyler has a written agreementsigned by the Executive\nVice President of Human Resources, in accordance with the procedure described in\nParagraph 8, allowing Ms. Tylerto recruit persons named in thatagreement.\nc. Confidentiality.\n(i) Ms.Tyler acknowledges and agrees that confidential information ofTarget and any of its\naffiliates is a valuable, special and unique asset. Such confidential information includes\nwithout limitation:\n(employee data and information (including, but not limited to, personnel decisions\nrelating to employees and applicants), and\n(lpfesent, pastand future strategies, plans, and proposals (including but not limited\nto, customer, marketing, merchandising, sourcing, store operations, technology,\nassets protection, distribution, benefits and compensation strategies, plans and\nproposals), and\n(financial information, and\n(l'pfesent, pastand future personnel and labor relations strategies, plans, practices,\npolicies, training programs and goals.\n(ii) Ms.Tyler will not, during or afterthe date of hertermination from Target, use or disclose\nor cause or permit to be used or disclosed any such information or any other information\nTargettreats as confidential, to any person, firm, corporation, association or other entity\nfor any reason or purpose whatsoever. For avoidance ofdoubt, nothing in this\nAgreement shall prohibit Ms. Tyler from communicating with a governmentagency,\nregulator or legal authority concerning any possible violations of federal or state law or\nregulation; however, Ms. Tyler is notauthorized to share communications covered and\nprotected from disclosure by Target’s attorney-client privilege.\nd. Consultation and Cooperation. Following the date of her termination from Target, Target may\nrequestthat Ms. Tyler consult or cooperate (including, without limitation, providing truthful\ninformation to Target or serving as a witness ortestifying atTarget's requestwithout\nsubpoena), and Ms. Tyler agrees to be available at mutually agreeable times to perform such\nduties and provide such cooperation in connection with the various business and legal\nmatters in which Ms. Tyler was involved or ofwhich Ms. Tyler has knowledge as result of her\nemployment with Target. In so consulting or cooperating, Ms. Tyler shall be reimbursed her\nreasonable out-of-pocket expenses.\ne. Remedies for Breach ofThese Covenants.\n(i) Ms.Tyler acknowledges that any breach ofthe covenants in Paragraph 3 will cause\nirreparable harm to Targetfor which money damages could not reasonably or\nadequately compensate Target. Accordingly, Target shall be entitled to seek all\navailable forms of injunctive relief (whethertemporary, preliminary, or permanent) to\nenforce the covenant, in addition to repayment of any consideration provided hereunder\nby Targetto the date of breach, damages recoverable by law and all other available\nremedies. Ms. Tyler consents to the issuance of injunctive relief withoutthe necessity of\nTarget posting a bond or, ifa court requires a bond to be posted, with a bond of no\ngreaterthan Five Hundred Dollars ($500) in principal amount.\n(ii) In addition to any other remedies available to Target, in the event Ms. Tyler breaches\nany of her obligations under Paragraphs 3.a., b., c., or d. of this Agreement, then Target\n(A) will be relieved ofall liability and obligation to make any further payments underthis\nAgreement, and (B) may demand the return ofany payments previously paid to Ms.\nTyler under this Agreement.\n4. Extension ofCovenants. Ms. Tyler agrees that if she violates any of the covenants in Paragraph 3,\nthe restrictions therein shall be extended forthe amount oftime during which a court determines\nthatshe was in violation ofthat Paragraph.\n5. Enforceabilitv. Ifany one or more of the provisions of this Agreement is held invalid, illegal, or\nunenforceable in any respect, such provision shall be severable, and the\n10. validity, legality, and enforceability of the remaining provisions contained in this Agreement will not\nin any way be affected or impaired thereby. lfany restriction in this Agreement is deemed by a\ncourtto be overbroad, Ms. Tyler and Target expressly authorize the courtto impose the broadest\nlimitations permissible underthe law.\nAssignment. The parties agree thatthe rights and obligations underthis Agreementshall inure to\nand be binding on Target, and its successors and assigns, butthe rights and obligations of Ms.\nTyler underthis Agreementare personal and may not be assigned to any other person or entity.\nHowever, if Ms. Tyler dies before all the Consideration is paid, the remaining Consideration will be\npaid to her estate.\nCounterparts. This Agreement may be executed in any number of counterparts, each ofwhich shall\nbe deemed an original, but all ofwhich shall constitute one and the same instrument.\nAmendment; Waivers. This Agreement may not be modified, amended, waived or discharged in\nany manner except by an instrument in writing signed by both parties hereto. The execution of any\nsuch modification, amendmentor waiver shall be in the sole discretion of an authorized officer of\nTarget. The waiver by either parw of compliance with any provision ofthis Agreement by the other\nparw shall not operate or be construed as a waiver of any other provision ofthis Agreement, or of\nany subsequent breach by such parw ofa provision ofthis Agreement.\nEntire Agreement. This Agreementembodies the entire agreement and understanding between\nTargetand Ms. Tyler pertaining to the payment of the consideration described in Paragraph 1\nhereof. Forthe sake of clarity, Targetand Ms. Tyler have simultaneously executed an Income\nContinuance Agreementwhich contains parallel covenants. The Income Continuance Agreement is\nsupported by independent consideration and is intended to operate separately and independently\nofthis Agreement.\nCode Section 409A. For all purposes under Section 409A of the Internal Revenue Code (“Section\n409A), each payment underthis Agreementshall be treated as a separate payment. It is the\nintention of the parties thatthe J anuary 13, 2017, payment be exempt from the requirements of\nSection 409A because it is a shortterm deferral under Treas. Reg. Sec. 1.409A-1(b)(4), and that\nthe balance of the payments, are intended to comply both in form and operation with the\nrequirements of Section 409A, and this Agreement will be construed and administered in a manner\nconsistentwith such intent. Target reserves the rightto adoptsuch rules, regulations or procedures\nthatare deemed necessary or appropriate to comply with the requirements of Section 409A. Any\npayments thatare subjectto the requirements of Section 409A may be accelerated or delayed only\nifand to the extent otherwise permitted under Section 409A.\n11. Reporting. Until all Consideration is paid pursuantto this Agreement, Ms. Tyler shall promptly\ninform Target of the name and business address of each business or person for which Ms. Tyler\nperforms services, and shall provide a summary description of the nature and principal business\nlocations ofeach such business or person. Ms. Tyler shall also provide hertitle, principal duties,\naddress and phone number. Significantchanges to employment, services, duties or location must\nbe promptly reported. Such\n12. 13. 14. 15. reports shall be provided to the Executive Vice President, Human Resources, in accordance with\nthe procedure described in Paragraph 8.\nGoverning Law. This Agreement will be construed and interpreted in accordance with the laws of\nthe State of Minnesota as interpreted by Minnesota state and federal courts.\n|urisdiction. Any action or proceeding seeking to enforce or interpret any provision of, or based\nupon any rightarising out of, this Agreement may be brought against any of the parties in the\nfederal or state courts located in Minneapolis, Minnesota, and each of the parties consents to the\njurisdiction of such courts (and of the appropriate appellate courts) in any such action or\nproceeding, and waives any objection to venue therein.\nEffective Date. This Agreement shall be effective on the earliest date it is executed by all parties\nhereto (the “E ffective Date”).\nAuthorization. Target affirms that this Agreement is duly authorized by all necessary parties.\n/s/Tina Tyler\nDatedzjanuary 19, 2016\nTINA TYLER\nDated:January27,2016 TARGET CORPORATION\nBy: /s/ I odee Kozlak\nIts: CHRO\nDated:January27,2016 TARGET ENTERPRISE, INC.\nBy: /s/ | odee Kozlak\nIts: CHRO Exhibit (10)MM\nNON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT\nThis Non-Competition, on-Solicitation and Confidentiality Agreement (referred to as the\n"Agreement"), is made by and between Target Corporation, a Minnesota corporation, and Target\nEnterprise, Inc., a subsidiary of Target Corporation ('Target E nterprise"), their predecessors, successors,\nparents, subsidiaries, affiliates, joint venture partners, shareholders, officers, and divisions (collectively\nreferred to as "Target") and Tina Tyler, an employee of Target nterprise ("Ms. Tyler"). Ms. Tyler and\nTarget are collectively referred to as "the parties" throughout this Agreement\nWHEREAS, Ms. Tyler has been a key Target executive, and has therefore been granted access to\nTarget's critical confidential business information, been positioned as a prominent Target representative\nidentified with its good will within the retail industry and corporate community, and developed strong\nrelationships with other Target employees; and\nWHEREAS, in order to protect Target's critica confidential business information and good will\nfrom use for the benefit of its competitors and to protect its employees from solicitation, and in addition to\nany benefits or compensation she might otherwise receive from Target under any policy, program or\nagreement, Target wishes to provide Ms. Tyler with supplemental compensation in return for Ms. Tyler\nagreeing further not to compete with Target both during and after her employment, solicit Target\nemployees, and disclose Target confidential information; and\nWHEREAS, Ms. Tyler wishes to accept that supplementa compensation in return for her\nacceptance of the terms of this Agreement\nNOW, THEREFORE, in consideration of the promises and the mutual covenants and agreements\ncontained herein and other good and valuable consideration, the receipt and sufficiency of which is\nhereby acknowledged, Target and Ms. Tyler agree as follows:\n1.\nConsideration. In exchange for entering into this Agreement, Target agrees to pay Ms. Tyler the\ntotal amount of Three Million Dollars ($3,000,000) (the "Consideration"). Target will pay this\namount, less applicable withholdings as determined by Target, as follows: (1) in one increment of\nOne Million Dollars ($1,000,000) paid on or about anuary 13, 2017, (2) in one increment of One\nMillion Dollars ($1,000,000) paid on or about anuary 12, 2018, and (3) in one increment of One\nMillion Dollars ($1,000,000) paid on or about anuary 11, 2019.\n2.\nTarget mployment. Nothing in this Agreement alters the nature, status or termination of Ms.\nTyler's employment with Target.\n3.\nMs. Tyler's Covenant. In consideration of this Agreement, and in recognition of the facts that, as a\nresult of her employment with Target, Ms. Tyler has had access to and gained knowledge of\nconfidential and/or proprietary information or trade secrets pertaining to Target, has been identified\nwith its good will within the retai industry and corporate community, has developed strong\nrelationships with other Target employees whom Target wishes to retain, and that Target has\nexpended time, resources and money to obtain or develop these protectable interests, all of which\nhave significant value to Target, Ms. Tyler agrees for the benefit of Target, and as a material\ncondition to her receipt of the consideration described in Paragraph 1, as follows:\nm\na.\nNon-Competition. Ms. Tyler will not, during her employment and for a period of three (3)\nyears following the date of her termination from Target, perform services directly or\nindirectly (including as an employee, independent contractor, consultant, officer, director,\nor similar relationship), to Amazon.com, Inc.; Best Buy Co., Inc.; Costco Wholesale\nCorporation; CVS Health Corporation; Dollar General Corporation; The Gap, Inc.; The\nHome Depot, Inc.; .C. Penney Company, Inc.; Kohl's Corporation; The Kroger Co.;\nLowe's Companies; Macy's, Inc.; Publix Super Markets, Inc.; R ite Aid Corporation;\nSafeway Inc.; Sears Holdings Corporation; Staples, Inc.; The TJ Companies, Inc.;\nWalgreens Boots Alliance, Inc.; and Wal-Mart Stores, Inc.; or any parent, subsidiary,\ndivision, or affiliate of any such company (examples of affiliates include entities under\ncommon control, joint venture partners and e-commerce affiliates) ("Competitive Entities").\nMs. Tyler expressly agrees that due to the nature of the confidential and/or proprietary\ninformation to which she has had access, and her position as a representative identified\nwith the company's good will while a Target employee, the three (3) year world-wide\nrestriction on her ability to work for the Competitive Entities set forth above is reasonable\nand appropriate. Restrictions on Ms. Tyler's ability to work for the entities set forth above\nmay be modified or waived at any time at the discretion of Brian Cornell, or the then-acting\nChief Executive Officer, in accordance with the procedure described in aragraph 8. Any\nsuch waiver or modification must be made in writing.\nb.\nlon-Solicitation. Ms. Tyler will not, during her employment and for a period of three (3)\nyears following the date of her termination from Target, recruit, solicit or entice, directly or\nindirectly, for employment or performance of services, any employee of Target or any of its\naffiliated companies, unless Ms. Tyler has a written agreement signed by the Executive\nVice resident of Human Resources, in accordance with the procedure described in\nParagraph 8, allowing Ms. Tyler to recruit persons named in that agreement.\nc. Confidentiality.\n(i) Ms. S.Tyler acknowledges and agrees that confidentia information of Target and any of its\naffiliates is a valuable, special and unique asset. Such confidential information includes\nwithout limitation:\n(Employee data and information (including, but not limited to, personne decisions\nrelating to employees and applicants), and\n(Present, past and future strategies, plans, and proposals (including but not limited\nto, customer, marketing, merchandising, sourcing, store operations, technology,\nassets protection, distribution, benefits and compensation strategies, plans and\nproposals), and\n(financial information, and\nN\n(present, past and future personnel and labor relations strategies, plans, practices,\npolicies, training programs and goals.\n(ii) Ms. .Tyler will not, during or after the date of her termination from Target, use or disclose\nor cause or permit to be used or disclosed any such information or any other information\nTarget treats as confidential, to any person, firm, corporation, association or other entity\nfor any reason or purpose whatsoever. For avoidance of doubt, nothing in this\nAgreement shall prohibit Ms. Tyler from communicating with a government agency,\nregulator or legal authority concerning any possible violations of federa or state law or\nregulation; however, Ms. Tyler is not authorized to share communications covered and\nprotected from disclosure by Target's attorney-client privilege.\nd. Consultation and Cooperation Following the date of her termination from Target, Target may\nrequest that Ms. Tyler consult or cooperate (including, without limitation, providing truthful\ninformation to Target or serving as a witness or testifying at Target's request without\nsubpoena), and Ms. Tyler agrees to be available at mutually agreeable times to perform such\nduties and provide such cooperation in connection with the various business and legal\nmatters in which Ms. Tyler was involved or of which Ms. Tyler has knowledge as result of her\nemployment with Target. In so consulting or cooperating, Ms. Tyler shall be reimbursed her\nreasonable out-of-pocket expenses.\ne.\nRemedies for Breach of These Covenants.\n(i) Ms. S.Tyler acknowledges that any breach of the covenants in Paragraph 3 will cause\nirreparable harm to Target for which money damages could not reasonably or\nadequately compensate Target Accordingly, Target shall be entitled to seek all\navailable forms of injunctive relief (whether temporary, preliminary, or permanent) to\nenforce the covenant, in addition to repayment of any consideration provided hereunder\nby Target to the date of breach, damages recoverable by law and all other available\nremedies. Ms. Tyler consents to the issuance of injunctive relief without the necessity of\nTarget posting a bond or, if a court requires a bond to be posted, with a bond of no\ngreater than Five Hundred Dollars ($500) in principal amount.\n(ii) In addition to any other remedies available to Target, in the event Ms. Tyler breaches\nany of her obligations under Paragraphs 3.a., b., C., or d. of this Agreement, then Target\n(A) will be relieved of all liability and obligation to make any further payments under this\nAgreement, and (B) may demand the return of any payments previously paid to Ms.\nTyler under this Agreement.\n4.\nExtension of Covenants. Ms. Tyler agrees that if she violates any of the covenants in Paragraph 3,\nthe restrictions therein shall be extended for the amount of time during which a court determines\nthat she was in violation of that Paragraph.\n5.\nEnforceability If any one or more of the provisions of this Agreement is held invalid, illegal, or\nunenforceable in any respect, such provision shall be severable, and the\n3\nvalidity, legality, and enforceability of the remaining provisions contained in this Agreement will not\nin any way be affected or impaired thereby. If any restriction in this Agreement is deemed by a\ncourt to be overbroad, Ms. Tyler and Target expressly authorize the court to impose the broadest\nlimitations permissible under the law.\n6.\nAssignment. The parties agree that the rights and obligations under this Agreement shall inure to\nand be binding on Target, and its successors and assigns but the rights and obligations of Ms.\nTyler\nunder\nthis\nAgreement\nare\npersonal\nand\nmay\nnot\nbe\nassigned\nto\nany\nother\nperson\nor\nentity.\nHowever, if Ms. Tyler dies before all the Consideration is paid, the remaining Consideration will be\npaid to her estate.\n7.\nCounterparts. This Agreement may be executed in any number of counterparts, each of which shal\nbe deemed an original, but all of which shall constitute one and the same instrument.\n8.\nAmendment; Waivers. This Agreement may not be modified, amended, waived or discharged in\nany manner except by an instrument in writing signed by both parties hereto. The execution of any\nsuch modification, amendment or waiver shall be in the sole discretion of an authorized officer of\nTarget. The waiver by either party of compliance with any provision of this Agreement by the other\nparty shall not operate or be construed as a waiver of any other provision of this Agreement, or of\nany subsequent breach by such party of a provision of this Agreement.\n9.\nEntire Agreement. This Agreement embodies the entire agreement and understanding between\nTarget and Ms. Tyler pertaining to the payment of the consideration described in aragraph 1\nhereof. For the sake of clarity, Target and Ms. Tyler have simultaneously executed an Income\nContinuance Agreement which contains parallel covenants. The Income Continuance Agreement is\nsupported by independent consideration and is intended to operate separately and independently\nof this Agreement.\n10. Code Section 409A. For all purposes under Section 409A of the Internal evenue Code ("Section\n409A), each payment under this Agreement shall be treated as a separate payment. It is the\nintention of the parties that the J anuary 13, 2017, payment be exempt from the requirements of\nSection 409A because it is a short term deferral under Treas. Reg. Sec. 1.409A-1(b)(4) and that\nthe balance of the payments, are intended to comply both in form and operation with the\nrequirements of Section 409A, and this Agreement will be construed and administered in a manner\nconsistent with such intent. Target reserves the right to adopt such rules, regulations or procedures\nthat are deemed necessary or appropriate to comply with the requirements of Section 409A. Any\npayments that are subject to the requirements of Section 409A may be accelerated or delayed only\nif and to the extent otherwise permitted under Section 409A.\n11.\nReporting. Until all Consideration is paid pursuant to this Agreement, Ms. Tyler shall promptly\ninform Target of the name and business address of each business or person for which Ms. Tyler\nperforms services, and shall provide a summary description of the nature and principa business\nlocations of each such business or person. Ms. Tyler shall also provide her title, principal duties,\naddress and phone number. Significant changes to employment, services, duties or location must\nbe promptly reported. Such\n4\nreports shall be provided to the Executive Vice President, Human Resources, in accordance with\nthe procedure described in Paragraph 8.\n12.\nGoverning Law. This Agreement will be construed and interpreted in accordance with the laws of\nthe State of Minnesota as interpreted by Minnesota state and federal courts.\n13.\nJJI\nurisdiction. Any action or proceeding seeking to enforce or interpret any provision of, or based\nupon any right arising out of, this Agreement may be brought against any of the parties in the\nfederal or state courts located in Minneapolis, Minnesota, and each of the parties consents to the\njurisdiction of such courts (and of the appropriate appellate courts) in any such action or\nproceeding, and waives any objection to venue therein.\n14.\nE ffective Date. This Agreement shall be effective on the earliest date it is executed by all parties\nhereto (the Effective Date").\n15. Authorization. Target affirms that this Agreement is duly authorized by all necessary parties.\n5\n/s/ Tina Tyler\nDated: J anuary 19, 2016\nTINA TYLER\nDated: J anuary 27, 2016\nTARGET CORPORATION\nBy: /s/ odee Kozlak\nIts: CHRO\nDated: J anuary 27, 2016\nTARGET ENTERPRISE, INC.\nBy: /s/ odee Kozlak\nIts: CHRO\n6 Exhibit (10)MM\nNON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT\nThis Non-Competition, Non-Solicitation and Confidentiality Agreement (referred to as the\n“Agreement”), is made by and between Target Corporation, a Minnesota corporation, and Target\nEnterprise, Inc., a subsidiary of Target Corporation (“Target Enterprise”), their predecessors, successors,\nparents, subsidiaries, affiliates, joint venture partners, shareholders, officers, and divisions (collectively\nreferred to as “Target”) and Tina Tyler, an employee of Target Enterprise (“Ms. Tyler”). Ms. Tyler and\nTarget are collectively referred to as “the parties” throughout this Agreement.\nWHEREAS, Ms. Tyler has been a key Target executive, and has therefore been granted access to\nTarget’s critical confidential business information, been positioned as a prominent Target representative\nidentified with its good will within the retail industry and corporate community, and developed strong\nrelationships with other Target employees; and\nWHEREAS, in order to protect Target’s critical confidential business information and good will\nfrom use for the benefit of its competitors and to protect its employees from solicitation, and in addition to\nany benefits or compensation she might otherwise receive from Target under any policy, program or\nagreement, Target wishes to provide Ms. Tyler with supplemental compensation in return for Ms. Tyler\nagreeing further not to compete with Target both during and after her employment, solicit Target\nemployees, and disclose Target confidential information; and\nWHEREAS, Ms. Tyler wishes to accept that supplemental compensation in return for her\nacceptance of the terms of this Agreement.\nNOW, THEREFORE, in consideration of the promises and the mutual covenants and agreements\ncontained herein and other good and valuable consideration, the receipt and sufficiency of which is\nhereby acknowledged, Target and Ms. Tyler agree as follows:\n1. Consideration. In exchange for entering into this Agreement, Target agrees to pay Ms. Tyler the\ntotal amount of Three Million Dollars ($3,000,000) (the “Consideration”). Target will pay this\namount, less applicable withholdings as determined by Target, as follows: (1) in one increment of\nOne Million Dollars ($1,000,000) paid on or about January 13, 2017, (2) in one increment of One\nMillion Dollars ($1,000,000) paid on or about January 12, 2018, and (3) in one increment of One\nMillion Dollars ($1,000,000) paid on or about January 11, 2019.\n2. Target Employment. Nothing in this Agreement alters the nature, status or termination of Ms.\nTyler’s employment with Target.\n3. Ms. Tyler’s Covenant. In consideration of this Agreement, and in recognition of the facts that, as a\nresult of her employment with Target, Ms. Tyler has had access to and gained knowledge of\nconfidential and/or proprietary information or trade secrets pertaining to Target, has been identified\nwith its good will within the retail industry and corporate community, has developed strong\nrelationships with other Target employees whom Target wishes to retain, and that Target has\nexpended time, resources and money to obtain or develop these protectable interests, all of which\nhave significant value to Target, Ms. Tyler agrees for the benefit of Target, and as a material\ncondition to her receipt of the consideration described in Paragraph 1, as follows:\n1\na. Non-Competition. Ms. Tyler will not, during her employment and for a period of three (3)\nyears following the date of her termination from Target, perform services directly or\nindirectly (including as an employee, independent contractor, consultant, officer, director,\nor similar relationship), to Amazon.com, Inc.; Best Buy Co., Inc.; Costco Wholesale\nCorporation; CVS Health Corporation; Dollar General Corporation; The Gap, Inc.; The\nHome Depot, Inc.; J.C. Penney Company, Inc.; Kohl’s Corporation; The Kroger Co.;\nLowe’s Companies; Macy’s, Inc.; Publix Super Markets, Inc.; Rite Aid Corporation;\nSafeway Inc.; Sears Holdings Corporation; Staples, Inc.; The TJX Companies, Inc.;\nWalgreens Boots Alliance, Inc.; and Wal-Mart Stores, Inc.; or any parent, subsidiary,\ndivision, or affiliate of any such company (examples of affiliates include entities under\ncommon control, joint venture partners and e-commerce affiliates) (“Competitive Entities”).\nMs. Tyler expressly agrees that due to the nature of the confidential and/or proprietary\ninformation to which she has had access, and her position as a representative identified\nwith the company’s good will while a Target employee, the three (3) year world-wide\nrestriction on her ability to work for the Competitive Entities set forth above is reasonable\nand appropriate. Restrictions on Ms. Tyler’s ability to work for the entities set forth above\nmay be modified or waived at any time at the discretion of Brian Cornell, or the then-acting\nChief Executive Officer, in accordance with the procedure described in Paragraph 8. Any\nsuch waiver or modification must be made in writing.\nb. Non-Solicitation. Ms. Tyler will not, during her employment and for a period of three (3)\nyears following the date of her termination from Target, recruit, solicit or entice, directly or\nindirectly, for employment or performance of services, any employee of Target or any of its\naffiliated companies, unless Ms. Tyler has a written agreement signed by the Executive\nVice President of Human Resources, in accordance with the procedure described in\nParagraph 8, allowing Ms. Tyler to recruit persons named in that agreement.\nc. Confidentiality.\n(i) Ms.Tyler acknowledges and agrees that confidential information of Target and any of its\naffiliates is a valuable, special and unique asset. Such confidential information includes\nwithout limitation:\n(A)employee data and information (including, but not limited to, personnel decisions\nrelating to employees and applicants), and\n(B)present, past and future strategies, plans, and proposals (including but not limited\nto, customer, marketing, merchandising, sourcing, store operations, technology,\nassets protection, distribution, benefits and compensation strategies, plans and\nproposals), and\n(C)financial information, and\n2\n(D)present, past and future personnel and labor relations strategies, plans, practices,\npolicies, training programs and goals.\n(ii) Ms.Tyler will not, during or after the date of her termination from Target, use or disclose\nor cause or permit to be used or disclosed any such information or any other information\nTarget treats as confidential, to any person, firm, corporation, association or other entity\nfor any reason or purpose whatsoever. For avoidance of doubt, nothing in this\nAgreement shall prohibit Ms. Tyler from communicating with a government agency,\nregulator or legal authority concerning any possible violations of federal or state law or\nregulation; however, Ms. Tyler is not authorized to share communications covered and\nprotected from disclosure by Target’s attorney-client privilege.\nd. Consultation and Cooperation. Following the date of her termination from Target, Target may\nrequest that Ms. Tyler consult or cooperate (including, without limitation, providing truthful\ninformation to Target or serving as a witness or testifying at Target’s request without\nsubpoena), and Ms. Tyler agrees to be available at mutually agreeable times to perform such\nduties and provide such cooperation in connection with the various business and legal\nmatters in which Ms. Tyler was involved or of which Ms. Tyler has knowledge as result of her\nemployment with Target. In so consulting or cooperating, Ms. Tyler shall be reimbursed her\nreasonable out-of-pocket expenses.\ne. Remedies for Breach of These Covenants.\n(i) Ms.Tyler acknowledges that any breach of the covenants in Paragraph 3 will cause\nirreparable harm to Target for which money damages could not reasonably or\nadequately compensate Target. Accordingly, Target shall be entitled to seek all\navailable forms of injunctive relief (whether temporary, preliminary, or permanent) to\nenforce the covenant, in addition to repayment of any consideration provided hereunder\nby Target to the date of breach, damages recoverable by law and all other available\nremedies. Ms. Tyler consents to the issuance of injunctive relief without the necessity of\nTarget posting a bond or, if a court requires a bond to be posted, with a bond of no\ngreater than Five Hundred Dollars ($500) in principal amount.\n(ii) In addition to any other remedies available to Target, in the event Ms. Tyler breaches\nany of her obligations under Paragraphs 3.a ., b., c., or d. of this Agreement, then Target\n(A) will be relieved of all liability and obligation to make any further payments under this\nAgreement, and (B) may demand the return of any payments previously paid to Ms.\nTyler under this Agreement.\n4. Extension of Covenants. Ms. Tyler agrees that if she violates any of the covenants in Paragraph 3,\nthe restrictions therein shall be extended for the amount of time during which a court determines\nthat she was in violation of that Paragraph.\n5. Enforceability. If any one or more of the provisions of this Agreement is held invalid, illegal, or\nunenforceable in any respect, such provision shall be severable, and the\n3\nvalidity, legality, and enforceability of the remaining provisions contained in this Agreement will not\nin any way be affected or impaired thereby. If any restriction in this Agreement is deemed by a\ncourt to be overbroad, Ms. Tyler and Target expressly authorize the court to impose the broadest\nlimitations permissible under the law.\n6. Assignment. The parties agree that the rights and obligations under this Agreement shall inure to\nand be binding on Target, and its successors and assigns, but the rights and obligations of Ms.\nTyler under this Agreement are personal and may not be assigned to any other person or entity.\nHowever, if Ms. Tyler dies before all the Consideration is paid, the remaining Consideration will be\npaid to her estate.\n7. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall\nbe deemed an original, but all of which shall constitute one and the same instrument.\n8. Amendment; Waivers. This Agreement may not be modified, amended, waived or discharged in\nany manner except by an instrument in writing signed by both parties hereto. The execution of any\nsuch modification, amendment or waiver shall be in the sole discretion of an authorized officer of\nTarget. The waiver by either party of compliance with any provision of this Agreement by the other\nparty shall not operate or be construed as a waiver of any other provision of this Agreement, or of\nany subsequent breach by such party of a provision of this Agreement.\n9. Entire Agreement. This Agreement embodies the entire agreement and understanding between\nTarget and Ms. Tyler pertaining to the payment of the consideration described in Paragraph 1\nhereof. For the sake of clarity, Target and Ms. Tyler have simultaneously executed an Income\nContinuance Agreement which contains parallel covenants. The Income Continuance Agreement is\nsupported by independent consideration and is intended to operate separately and independently\nof this Agreement.\n10. Code Section 409A. For all purposes under Section 409A of the Internal Revenue Code (“Section\n409A), each payment under this Agreement shall be treated as a separate payment. It is the\nintention of the parties that the January 13, 2017, payment be exempt from the requirements of\nSection 409A because it is a short term deferral under Treas. Reg. Sec. 1.409A-1(b)(4), and that\nthe balance of the payments, are intended to comply both in form and operation with the\nrequirements of Section 409A, and this Agreement will be construed and administered in a manner\nconsistent with such intent. Target reserves the right to adopt such rules, regulations or procedures\nthat are deemed necessary or appropriate to comply with the requirements of Section 409A. Any\npayments that are subject to the requirements of Section 409A may be accelerated or delayed only\nif and to the extent otherwise permitted under Section 409A.\n11. Reporting. Until all Consideration is paid pursuant to this Agreement, Ms. Tyler shall promptly\ninform Target of the name and business address of each business or person for which Ms. Tyler\nperforms services, and shall provide a summary description of the nature and principal business\nlocations of each such business or person. Ms. Tyler shall also provide her title, principal duties,\naddress and phone number. Significant changes to employment, services, duties or location must\nbe promptly reported. Such\n4\nreports shall be provided to the Executive Vice President, Human Resources, in accordance with\nthe procedure described in Paragraph 8.\n12. Governing Law. This Agreement will be construed and interpreted in accordance with the laws of\nthe State of Minnesota as interpreted by Minnesota state and federal courts.\n13. Jurisdiction. Any action or proceeding seeking to enforce or interpret any provision of, or based\nupon any right arising out of, this Agreement may be brought against any of the parties in the\nfederal or state courts located in Minneapolis, Minnesota, and each of the parties consents to the\njurisdiction of such courts (and of the appropriate appellate courts) in any such action or\nproceeding, and waives any objection to venue therein.\n14. Effective Date. This Agreement shall be effective on the earliest date it is executed by all parties\nhereto (the “Effective Date”).\n15. Authorization. Target affirms that this Agreement is duly authorized by all necessary parties.\n5\nDated: January 19, 2016\n/s/ Tina Tyler\nTINA TYLER\nDated: January 27, 2016\nTARGET CORPORATION\nBy: /s/ Jodee Kozlak\nIts: CHRO\nDated: January 27, 2016\nTARGET ENTERPRISE, INC.\nBy: /s/ Jodee Kozlak\nIts: CHRO\n6 65ad3d6fa2814b1e1f6b87f56b398086.pdf jurisdiction EX-10 .29 22 a2207597zex-10_29.htm FORM OF NON-COMPETITION AND CONFIDENTIALITY AGREEMENT -- EXECUTIVE OFFICERS\nExhibit 10.29\nExecution Version\nNON-COMPETITION, NON -SOLICITATION\nAND CONFIDENTIALITY AGREEMENT\nNON-COMPETITION , NON -SOLICITATION AND CONFIDENTIALITY AGREEMENT (this “Agreement”) made as of\n, by and between Fifth Third Processing Solutions, LLC, a Delaware\nlimited liability company (together with any successor entity thereto, the “Company”), and\n(“Employee”) .\nIn consideration of the Company’s offer of employment pursuant to the terms and conditions of an offer letter, dated as of the date of this Agreement, the Company’s providing Employee with access to its\nproperty, equipment and valuable Confidential Information (as defined below), and other good and valuable consideration, the parties hereby agree as follows:\n1.\nEmployee’s Covenants\na. Non-Competition: During the Restricted Period (as defined below), Employee agrees not to compete in any manner, either directly or indirectly, whether for compensation or otherwise, with the\nCompany, including by, entering into an ownership, consulting or employment arrangement with, or render services for, any individual or entity; accept or provide assistance in the accepting of (including, but not limited to, providing any\nservice, information or assistance or other facilitation or other involvement) business or orders from customers or any potential customers of the Business or the Company with whom Employee has had contact, involvement, or\nresponsibility on behalf of any third party or otherwise, or to assist any other person or entity to compete with the Business (as defined below) or the Company by either:\n(i)\nproducing, developing or marketing, rendering services or handling products competitive with the Business or the Company in any geographic region or territory in which\nEmployee worked or had responsibility during the eighteen (18) month period preceding departure from the Company or the Closing, as applicable, or assisting others to\nproduce, develop or market, or render such services or products; or\n(ii)\naccepting employment from or having any other relationship (including, without limitation, through owning, managing, operating, controlling or consulting) with any entity\nwhich produces, develops or markets, a product, process, or service which is competitive with those products, processes, or services of the Business or the Company, whether\nexisting or planned for the future, on which Employee has worked, or concerning which Employee has in any manner acquired knowledge of or had access to Confidential\nInformation, during the eighteen (18) months preceding termination of Employee’s employment, provided, however, that it shall not be a violation of this Agreement for\nEmployee to have beneficial ownership of less than 1% of the outstanding amount of any class of securities listed on a national securities exchange or quoted on an\ninter-dealer quotation system.\nb. Non-Solicitation: During the Restricted Period, Employee agrees that Employee will not, either on Employee’s own behalf or on behalf of any other person or entity, directly or indirectly, (a) solicit\nany person or entity that is a customer of the Business or the Company, or has been a customer of the Company during the prior eighteen (18) months, to purchase any products or services the Business or the Company provided or\nprovides to the customer, (b) interfere with any of the Business’s or the Company’s business relationships, or (c) directly or indirectly solicit, divert, entice or take away any potential customer identified, selected or targeted by the\nBusiness or the Company with whom Employee had contact, involvement or responsibility during Employee’s employment with the Company and/or its affiliates, or attempt to do so for the sale of any product or service that competes\nwith a product or service offered by the Business or the Company.\nc. No-Hire: During the Restricted Period, Employee agrees that Employee will not, either on Employee’s own behalf or on behalf of any other person or entity, directly or indirectly, hire, solicit or\nencourage to leave the employ of the Company, Holdco and/or any of their subsidiaries who is then an employee of the Company, Holdco and/or any of their subsidiaries or was such an employee within twelve (12) months of the date of\nsuch hiring, soliciting, or encouragement to leave.\nd. Confidentiality. The Employee will not at any time (whether during or after the Employee’s employment with the Company or its subsidiaries) disclose, divulge, transfer or provide access to, or use for\nthe benefit of, any third party outside the Company, Holdco or their subsidiaries (other than as necessary to perform the Employee’s employment duties) any Confidential Information without prior authorization of the Company. Upon\ntermination of the Employee’s employment for any reason, the Employee shall return any and all Confidential Information and other property of the Company, Holdco or their subsidiaries in the Employee’s possession.\ne. Non-Disparagement. During the Restricted Period, Employee agrees that Employee will not make disparaging statements, in any form, about the Company or its affiliates, officers, directors, agents,\nemployees, products or services which Employee knows, or has reason to believe, are false or misleading.\n2\nf. Certain Definitions.\n(i)\n“ Business” means (i) merchant processing services (including payment authorization, clearing and settlement for credit, debit, check authorization and truncation), (ii) gift,\nprivate label, stored value and prepaid card processing, (iii) electronic funds transfer services to business customers (including debt and ATM card processing and driving\nservices, PIN and signature debit transaction authorization settlement and exception processing, (iv) payment and ATM network switching services (including the Jeanie\nnetwork), (v) credit and debit card production, activation, replacement and related management services (including on an outsourced basis), (vi) certain payments-related\nreselling services, (vii) other value added services (including fraud detection, prevention and management services) relating to the foregoing, (viii) promotional messaging\nservice relating to the foregoing, (ix) debit portfolio management services related to the foregoing, and (x) certain data processing services.\n(ii)\n“ Confidential Information” shall mean information or material of the Company which is not generally available to or used by others, or the utility or value of which is not\ngenerally known or recognized as standard practice, whether or not the underlying details are in the public domain, including: (A) information or material relating to the\nCompany and its business as conducted or anticipated to be conducted; business plans; operations; past, current or anticipated services, products or software; customers or\nprospective customers; relations with business partners or prospective business partners; or research, engineering, development, manufacturing, purchasing, accounting, or\nmarketing activities; (B) information or material relating to the Company’s inventions, improvements, discoveries, “know-how,” technological developments, or unpublished\nwritings or other works of authorship, or to the materials, apparatus, processes, formulae, plans or methods used in the development, manufacture or marketing of the\nCompany’s services, products or software; (C) information on or material relating to the Company which when received is marked as “proprietary,” “private,” or\n“c onfidential”; (D) trade secrets of the Company; (E) software of the Company in various stages of development, software designs, web-based solutions, specifications,\nprogramming aids, programming languages, interfaces, visual displays, technical documentation, user manuals, data files and databases of the Company; and (F) any similar\ninformation of the type described above which the Company obtained from another party and which the Company treats as or designates as being proprietary, private or\n3\nconfidential, whether or not owned or developed by the Company. Notwithstanding the foregoing, “Confidential Information” does not include any information which is\nproperly published or in the public domain; provided, however, that information which is published by or with the aid of Employee outside the scope of employment or\ncontrary to the requirements of this Agreement will not be considered to have been properly published, and therefore will not be in the public domain for purposes of this\nAgreement.\n(iii)\n“Restricted Period” means the period of Employee’s employment by the Company, its parent company or one of their respective subsidiaries and one (1) year following\ntermination of such employment for any reason.\n2.\nRepresentations, Warranties and Acknowledgements\na. Employee acknowledges that Employee’s services are of a special, unique and extraordinary character and, Employee’s position with the Business and the Company places Employee in a position of\nconfidence and trust with the customers, suppliers, vendors, employees and agents of the Company.\nb. Employee also acknowledges that businesses that are competitive with the Company include, but are not limited to, any businesses which are engaged in the Business or any other lines of business that\nthe Company may engage in the future. Employee further acknowledges that given the nature of the Business and the other businesses of the Company, certain accounts of the Company are national in scope and are not dependent on the\ngeographic location of Employee or the Company.\nc. Employee represents and warrants to the Company that Employee is not a party to any agreement, or non-competition or other covenant or restriction contained in any agreement, commitment,\narrangement or understanding (whether oral or written), that in any way conflicts with or limits Employee’s ability to commence or continue to render services to the Company or that would otherwise limit Employee’s ability to perform\nall responsibilities in accordance with the terms and subject to the conditions of Employee’s employment.\n3.\nRemedies\nIn the event of breach or threatened breach by Employee of any provision of Section 1 hereof, the Company shall be entitled to (a) temporary and preliminary and permanent injunctive relief and without the\nposting any bond or other security, (b) damages and an equitable accounting of all earnings, profits and other benefits arising from such violation, (c) recovery of all attorney’s fees and costs incurred by the Company in obtaining such\nrelief, (d) cessation and repayment of any severance benefits paid to Employee pursuant to any agreement with the Company, including any employment agreement, severance benefit agreement, plan or program of the Company, and\n(e) any other legal and equitable relief to which it may be entitled, including any and all monetary damages which the Company may incur as a result of said breach or threatened breach. The Company may pursue any remedy available,\nincluding declaratory\n4\nrelief, concurrently or consecutively in any order, and the pursuit of one such remedy at any time will not be deemed an election of remedies or waiver of the right to pursue any other remedy.\n4.\nEarly Resolution Conference\nThis Agreement is understood to be clear and enforceable as written and is executed by both parties on that basis. However, should Employee later challenge any provision as unclear, unenforceable, or\ninapplicable to activity that Employee intends to engage in, Employee will first notify Company in writing and meet with a Company representative and a neutral mediator (if the Company elects to retain one at its expense) to discuss\nresolution of any disputes between the parties. Employee will provide this notification at least fourteen (14) days before Employee engages in any activity on behalf of a competing business or engages in other activity that could\nforeseeably fall within a questioned restriction. The failure to comply with this requirement shall waive Employee’s right to challenge the reasonable scope, clarity, applicability, or enforceability of the Agreement and its restrictions at a\nlater time. All rights of both parties will be preserved if the early resolution conference requirement is complied with even if no agreement is reached in the conference.\n5.\nMiscellaneous\na. This Agreement, together with the offer letter, constitute the sole and entire agreements and understandings between Employee and the Company with respect to the matters covered thereby, and there\nare no other promises, agreements, representations, warranties or other statements between Employee and the Company in respect to such matters not expressly set forth in these agreements. These Agreements supersede all prior and\ncontemporaneous agreements, understandings or other arrangements concerning the subject matter thereof. These Agreements may not be changed or terminated orally but only by an agreement in writing signed by the parties hereto.\nb. No course of dealing or any delay on the part of the Company or Employee in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach of this\nAgreement shall be deemed a continuing waiver of any other breach or default.\nc. Because the Company is headquartered in the State of Ohio this Agreement shall be governed by, and construed in accordance with, the laws of the State of Ohio without regard to the choice of law\nrules of any state or where Employee is in fact required to work.\nd. If any provision or clause of this Agreement, or portion thereof, shall be held by any court of competent jurisdiction to be illegal, void or unenforceable in such jurisdiction, the remainder of such\nprovisions shall not thereby be affected and shall be given full effect, without regard to the invalid portion. It is the intention of the parties that, if any court construes any provision or clause of this Agreement, or any portion thereof, to be\nillegal, void or unenforceable because of the duration of such provision or the area or matter covered thereby, such court shall reduce the duration, area, or matter of such provision and, in its reduced form, such provision shall then be\nenforceable and shall be enforced.\n5\ne. The obligations of Employee may not be delegated and, Employee may not assign or otherwise transfer this Agreement or any obligations hereunder. This Agreement and all of the Company’s rights\nand obligations under this Agreement may be assigned or transferred by the Company to and may be assumed by and inure to the benefit of any successor or other transferee of all or a substantial part of the assets of the Company’s\nbusiness in which Employee works.\nf. Any legal suit, action or proceeding against any party hereto arising out of or relating to this Agreement shall be instituted in a Ohio federal or state court in the Ohio and each party hereto waives any\nobjection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding and each party hereto irrevocably submits to the jurisdiction of any such court in any suit, action or proceeding.\n[The remainder of this page is left blank intentionally.]\n6\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered, effective as of the date first indicated above by a duly authorized officer of the Company.\nEMPLOYEE:\nSignature\nPrint name\n[SIGNATURE PAGE TO\nNON-COMPETITION AGREEMENT]\nFIFTH THIRD PROCESSING SOLUTIONS, LLC\nBy:\nSignature\nPrint name\nTitle\n[SIGNATURE PAGE TO\nNON-COMPETITION AGREEMENT] EX-10.29 22 a2207597zeX-10_29.htm FORM OF NON-COMPETITION AND CONFIDENTIALITY AGREEMENT -- EXECUTIVE OFFICERS\nExhibit 10.29\nExecution Version\nN0 N-COMPETITIO N, NON-SOLIC ITATION\nAND CONFIDENTIALITY AGREEMENT\nNON-COMPETITIO N, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (this "A ggement”) made as of , by and between Fifth Third Processing Solutions, LLC, a Delaware\nlimited liability company (together with any successor entity thereto, the "Company”), and ("Employee").\nIn consideration of the Company' 5 offer of employment pursuant to the terms and conditions of an offer letter, dated as of the date of this Agreement, the Company' 5 providing Employee with access to its\nproperty, equipment and valuable Confidential Information (as defined below), and other good and valuable consideration, the parties hereby agree as follows:\n1. Employee’ s C ovenants\na, Non-Competition: During the Restricted Period (as defined below), Employee agrees not to compete in any manner, either directly orindirectly, whether for compensation or otherwise, with the\nCompany, including by, entering into an ownership, consulting or employment arrangement with, or render services for, any individual or entity,- accept or provide assismnce in the accepting of (including, but not limited to, providing any\nservice, information or assistance or other facilimtion or other involvement) business or orders from customers or any potential customers of the Business or the Company with whom Employee has had contact, involvement, or\nresponsibility on behalf of any third party or otherwise, or to assist any other person or entity to compete with the Business (as defined below) or the Company by either:\n(i) producing, developing or marketing, rendering services or handling products competitive with the Business or the Company in any geographic region or territory in which\nEmployee worked or had responsibility during the eighteen (18) month period preceding departure from the Company or the Closing, as applicable, or assisting others to\nproduce, develop or market, or render such services or products; or\n(ii) accepting employment from or having any other relationship (including, without limitation, through owning, managing, operating, controlling or consulting) with any entity\nwhich produces, develops or markets, a product, process, or service which is competitive with those products, processes, or services of the Business or the Company, whether\nexisting or planned for the future, on which Employee has worked, or concerning which Employee has in any manner acquired knowledge of or had access to Confidential\nInformation, during the eighteen (18) months preceding termination of Employee’s employment, provided, however, that it shall not be a violation of this Agreement for\nEmployee to have beneficial ownership of less than 1% of the outstanding amount of any class of securities listed on a national securities exchange or quoted on an\ninter- dealer quomtion system\nb. Non-Solicitation: During the Restricted Period, Employee agrees that Employee will not, either on Employee's own behalf or on behalf of any other person or entity, directly or indirectly, (a) solicit\nany person or entity that is a customer of the Business or the Company, or has been a customer of the Company during the prior eighteen (18) months, to purchase any products or services the Business or the Company provided or\nprovides to the customer, (b) interfere with any of the Business' 5 or the Company' 5 business relationships, or (c) directly or indirectly solicit, divert, entice or take away any potential customer identified, selected or targeted by the\nBusiness or the Company with whom Employee had contact, involvement or responsibility during Employee's employment with the Company and/orits affiliates, or attempt to do so for the sale of any product or service that competes\nwith a product or service offered by the Business or the Company,\nor No-Hire: During the Restricted Period, Employee agrees that Employee will not, either on Employee' 5 own behalf or on behalf of any other person or entity, directly or indirectly, hire, solicit or\nencourage to leave the employ of the Company, Holdco and/or any of their subsidiaries who is then an employee of the Company, Holdco and/or any of their subsidiaries or was such an employee within twelve (12) months of the date of\nsuch hiring, soliciting, or encouragement to leave.\nd. Confidentialiy. The Employee will not at any time (whether during or after the Employee' 5 employment with the Company or its subsidiaries) disclose, divulge, transfer or provide access to, or use for\nthe benefit of, any third party outside the Company, Holdco or their subsidiaries (other than as necessary to perform the Employee' 5 employment duties) any Confidential Information without prior authorization of the Company. Upon\ntermination of the Employee’s employment for any reason, the Employee shall return any and all Confidential Information and other property of the Company, Holdco or their subsidiaries in the Employee's possession,\ne, Non-Disparaqement. During the Restricted Period, Employee agrees that Employee will not make disparaging statements, in any form, about the Company or its affiliates, officers, directors, agents,\nemployees, products or services which Employee knows, or has reason to believe, are false or misleading.\nf. C ertain D efinitions,\n(i) "Business" means (i) merchant processing services (including payment authorization, clearing and settlement for credit, debit, check authorization and truncation), (ii) gift,\nprivate label, stored value and prepaid card processing, (iii) electronic funds transfer services to business customers (including debt and ATM card processing and driving\nservices, PIN and signature debit transaction authorization settlement and exception processing, (iv) payment and ATM network switching services (including theJeanie\nnetwork), (v) credit and debit card production, activation, replacement and related management services (including on an outsourced basis), (vi) certain payments-related\nreselling services, (vii) other value added services (including fraud detection, prevention and management services) relating to the foregoing, (viii) promotional messaging\nservice relating to the foregoing, (ix) debit portfolio management services related to the foregoing, and (x) cermin dam processing services.\n(ii) ”Confidential Information" shall mean information or material of the Company which is not generally available to or used by others, or the utility or value of which is not\ngenerally known or recognized as standard practice, whether or not the underlying details are in the public domain, including: (A) information or material relating to the\nCompany and its business as conducted or anticipated to be conducted,- business plans,- operations; past, current or anticipated services, products or software,- customers or\nprospective customers; relations with business partners or prospective business partners,- or research, engineering, development, manufacturing, purchasing, accounting, or\nmarketing activities; (B) information or material relating to the Company’s inventions, improvements, discoveries, "know-how," technological developments, or unpublished\nwritings or other works of authorship, orto the materials, apparatus, processes, formulae, plans or methods used in the development, manufacture or marketing of the\nCompany's services, products or software; (C) information on or material relating to the Company which when received is marked as ”proprietary," "private," or\n"confidential"; (D) trade secrets of the Company: (E) software of the Company in various stages of development, software designs, web-based solutions, specifications,\nprogramming aids, programming languages, interfaces, visual displays, technical documentation, user manuals, data files and databases of the Company; and (F) any similar\ninformation of the type described above which the Company obmined from another party and which the Company treats as or designates as being propriemry, private or\nconfidential, whether or not owned or developed by the Company. Notwithstanding the foregoing, "Confidential Information" does not include any information which is\nproperly published orin the public domain; Molar, however, that information which is published by or with the aid of Employee outside the scope of employment or\ncontrary to the requirements of this Agreement will not be considered to have been properly published, and therefore will not be in the public domain for purposes of this\nA greement.\n(iii) ”Restricted Period" means the period of Employee' 5 employment by the Company, its parent company or one of their respective subsidiaries and one (1) year following\ntermination of such employment for any reason.\n2. Representations, Warranties and Acknowledgements\n \na. Employee acknowledges that Employee's services are of a special, unique and extraordinary character and, Employee's position with the Business and the Company places Employee in a position of\nconfidence and trust with the customers, suppliers, vendors, employees and agents of the Company.\nb. Employee also acknowledges that businesses that are competitive with the Company include, but are not limited to, any businesses which are engaged in the Business or any other lines of business that\nthe Company may engage in the future. Employee further acknowledges that given the nature of the Business and the other businesses of the Company, certain accounts of the Company are national in scope and are not dependent on the\ngeographic location of Employee or the Company.\nc. Employee represents and warrants to the Company that Employee is not a party to any agreement, or non-competition or other covenant or restriction conmined in any agreement, commitment,\narrangement or understanding (whether oral or written), that in any way conflicts with or limits Employee's ability to commence or continue to render services to the Company or that would otherwise limit Employee's ability to perform\nall responsibilities in accordance with the terms and subject to the conditions of Employee’s employment.\n3. Remedies\nIn the event of breach or threatened breach by Employee of any provision of Section 1 hereof, the Company shall be entitled to (a) temporary and preliminary and permanent injunctive relief and without the\n \nposting any bond or other security, (b) damages and an equitable accounting of all earnings, profits and other benefits arising from such violation, (c) recovery of all attorney' 5 fees and costs incurred by the Company in obtaining such\nrelief, (d) cessation and repayment of any severance benefits paid to Employee pursuant to any agreement with the Company, including any employment agreement, severance benefit agreement, plan or program of the Company, and\n(e) any other legal and equimble relief to which it may be entitled, including any and all monetary damages which the Company may incur as a result of said breach or threatened breach. The Company may pursue any remedy available,\nincluding declarame\nrelief, concurrently or consecutively in any order, and the pursuit of one such remedy at any time will not be deemed an election of remedies or waiver of the right to pursue any other remedy.\n4. Early Resolution C onference\nThis Agreement is understood to be clear and enforceable as written and is executed by both parties on that basis. However, should Employee later challenge any provision as unclear, unenforceable, or\ninapplicable to activity that Employee intends to engage in, Employee will first notify Company in writing and meet with a Company represenmtive and a neutral mediator (if the Company elects to remin one at its expense) to discuss\nresolution of any disputes between the parties. Employee will provide this notification at least fourteen (14) days before Employee engages in any activity on behalf of a competing business or engages in other activity that could\nforeseeably fall within a questioned restriction. The failure to comply with this requirement shall waive Employee's right to challenge the reasonable scope, clarity, applicability, or enforceability of the Agreement and its restrictions at a\nlater time. All rights of both parties will be preserved if the early resolution conference requirement is complied with even if no agreement is reached in the conference.\n5. Miscellaneous\na. This Agreement, together with the offer letter, constitute the sole and entire agreements and understandings between Employee and the Company with respect to the matters covered thereby, and there\nare no other promises, agreements, representations, warranties or other smtements between Employee and the Company in respect to such matters not expressly set forth in these agreements. These Agreements supersede all prior and\ncontemporaneous agreements, understandings or other arrangements concerning the subject matter thereof. These Agreements may not be changed or terminated orally but only by an agreement in writing signed by the parties hereto.\nb. No course of dealing or any delay on the part of the Company or Employee in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach of this\nAgreement shall be deemed a continuing waiver of any other breach or default.\nc. Because the Company is headquartered in the State of Ohio this Agreement shall be governed by, and construed in accordance with, the laws of the State of Ohio without regard to the choice of law\nrules of any state or where Employee is in fact required to work.\nd. If any provision or clause of this Agreement, or portion thereof, shall be held by any court of competent jurisdiction to be illegal, void or unenforceable in such jurisdiction, the remainder of such\nprovisions shall not thereby be affected and shall be given full effect, without regard to the invalid portion. It is the intention of the parties that, if any court construes any provision or clause of this Agreement, or any portion thereof, to be\nillegal, void or unenforceable because of the duration of such provision or the area or matter covered thereby, such court shall reduce the duration, area, or matter of such provision and, in its reduced form, such provision shall then be\nenforceable and shall be enforced.\ne. The obligations of Employee may not be delegated and, Employee may not assign or otherwise transfer this Agreement or any obligations hereunder. This Agreement and all of the Company's rights\nand obligations under this Agreement may be assigned or transferred by the Company to and may be assumed by and inure to the benefit of any successor or other transferee of all or a substantial part of the assets of the Company’s\nbusiness in which Employee works.\nf. Any legal suit, action or proceeding against any party hereto arising out of or relating to this Agreement shall be instituted in a Ohio federal or state court in the Ohio and each party hereto waives any\nobjection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding and each party hereto irrevocably submits to the jurisdiction of any such court in any suit, action or proceeding.\n[The remainder of this page is left blank intentionally]\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered, effective as of the date first indicated above by a duly authorized officer of the Company.\nEMPLOY EE:\nSW?\nPHD name\n[SIGNATURE PAGE TO NON-COMPETITION AGREEMENT]\nFIFTH THIRD PROCESSING SOLUTIONS, LLC\nBy:\nSignafi re\nPHD name\n[SIGNATURE PAGE TO NON-COMPETITION AGREEMENT] EX-10.29 22 a2207597zex-10_29.htr FORMC OF NON-COMPETITION AND CONFIDENTIALITY AGREEMENT EXECUTIVE OFFICERS\nExhibit 10.29\nExecution Version\nNON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT\nNON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (this "Agreement") made as of\nby and between Fifth Third Processing Solutions, LLC, a Delaware\nlimited liability company (together with any successor entity thereto the "Company") and\n("Employee").\nIn consideration of the Company's offer of employment pursuant to the terms and conditions of an offer letter, dated as of the date of this Agreement, the Company's providing Employee with access to\nits\nproperty equipment and valuable Confidential Information (as defined below), and other good and valuable consideration, the parties hereby agree as follows:\n1.\nEmplovee's Covenants\na.\nNon-Competition: During the Restricted Period (as defined below), Employee agrees no to compete in any manner, either directly or indirectly, whether for compensation or otherwise, with the\nCompany, including by, entering into an ownership, consulting or employment arrangement with or render services for, any individual or entity accept or provide assistance in the accepting of (including, but not limited to, providing any\nservice, information or assistance or other facilitation or other involvement) business or orders from customers or any potential customers of the Business or the Company with whom Employee has had contact, involvement or\nresponsibility on behalf of any third party or otherwise, or to assist any other person or entity to compete with the Business (as defined below) or the Company by either:\n(i)\nproducing, developing or marketing, rendering services or handling products competitive with the Business or the Company in any geographic region or territory in which\nEmployee worked or had responsibility during the eighteen (18) month period preceding departure from the Company or the Closing, as applicable, or assisting others\nto\nproduce develop or market, or render such services or products or\n(ii)\naccepting employment from or having any other relationship (including, without limitation, through owning, managing, operating, controlling or consulting) with any entity\nwhich produces, develops or markets, a product process, or service which is competitive with those products, processes, or services of the Business or the Company, whether\nexisting or planned for the future, on which Employee has worked, or conceming which Employee has in any manner acquired knowledge of or had access to Confidential\nInformation, during the eighteen (18) months preceding termination of Employee's employment, provided however that it shall not be a violation of this Agreement for\nEmployee to have beneficial ownership of less than 1% of the outstanding amount of any class of securities listed on a national securities exchange or quoted on an\ninter-dealer quotation system.\nb. Non-Solicitation: During the Restricted Period, Employee agrees that Employee will not either on Employee's own behalf or on behalf of any other person or entity, directly or indirectly, (a) solicit\nany person or entity that is a customer of the Business or the Company, or has been a customer of the Company during the prior eighteen (18) months, to purchase any products or services the Business or the Company provided or\nprovides to the customer, (b) interfere with any of the Business's or the Company's business relationships, or (c) directly or rindirectly solicit, divert, entice or take away any potential customer identified, selected or targeted by the\nBusiness or the Company with whom Employee had contact, involvement or responsibility during Employee's employment with the Company and/or its affiliates, or attempt to do so for the sale of any product or service that competes\nwith a product or service offered by the Business or the Company.\nc.\nNo-Hire: During the Restricted Period, Employee agrees that Employee will not, either on Employee's own behalf or on behalf of any other person or entity, directly or indirectly, hire, solicit or\nencourage to leave the employ of the Company, Holdco and/or any of their subsidiaries who is then an employee of the Company, Holdco and/or any of their subsidiaries or was such an employee within twelve (12) months of the date of\nsuch hiring, soliciting, or encouragement to leave.\nd. Confidentiality. The Employee will not at any time (whether during or after the Employee's employment with the Company or its subsidiaries) disclose, divulge, transfer or provide access to, or use for\nthe benefit of, any third party outside the Company, Holdco or their subsidiaries (other than as necessary to perform the Employee's employment duties) any Confidential Information without prior authorization of the Company. Upon\ntermination of the Employee's employment for any reason, the Employee shall return any and all Confidential Information and other property of the Company, Holdco or their subsidiaries in the Employee's possession.\ne.\nNon -Disparagement. During the Restricted Period, Employee agrees that Employee wil not make disparaging statements, in any for, about the Company or its affiliates, officers, directors, agents,\nemployees, products or services which Employee knows, or has reason to believe, are false or misleading.\n2\nf. Certain Definitions.\n(i)\n"Business" means (i) merchant processing services (including payment authorization, clearing and settlement for credit, debit, check authorization and truncation), (ii) gift,\nprivate label stored value and prepaid card processing, (iii) electronic funds transfer services to business customers (including debt and ATM card processing and driving\nservices PIN and signature debit transaction authorization settlement and exception processing (iv) payment and ATM network switching services (including the Jeanie\nnetwork), (v) credit and debit card production, activation, replacement and related management services (including on an outsourced basis) (vi) certain payments-related\nreselling services, (vii) other value added services (including fraud detection prevention and management services) relating to the foregoing, (viii) promotional messaging\nservice relating to the foregoing (ix) debit portfolio management services related to the foregoing, and (x) certain data processing services.\n(ii)\n"Confidential Information" shall mean information or material of the Company which is not generally available to or used by others, or the utility or value of which is not\ngenerally known or recognized as standard practice, whether or not the underlying details are in the public domain, including (A) information or material relating to the\nCompany and its business as conducted or anticipated to be conducted; business plans; operations past, current or anticipated services, products or software; customers or\nprospective customers; relations with business partners or prospective business partners; or research, engineering, development, manufacturing, purchasing, accounting, or\nmarketing activities; (B) information or material relating to the Company's inventions, improvements, discoveries, "know-how," technological developments, or unpublished\nwritings or other works of authorship, or to the materials, apparatus, processes, formulae, plans or methods used in the development, manufacture or marketing of the\nCompany's services, products or software; (C) information on or material relating to the Company which when received is marked as "proprietary," "private,' or\n"confidential" (D) trade secrets of the Company; (E) software of the Company in various stages of development, software designs, web-based solutions, specifications,\nprogramming aids, programming languages, interfaces, visual displays, technical documentation, user manuals, data files and databases of the Company; and (F) any similar\ninformation of the type described above which the Company obtained from another party and which the Company treats as or designates as being proprietary, private or\n3\nconfidential, whether or not owned or developed by the Company. Notwithstanding the foregoing, "Confidential Information" does not include any information which is\nproperly published or in the public domain; provided however, that information which is published by or with the aid of Employee outside the scope of employment or\ncontrary to the requirements of this Agreement will not be considered to have been properly published, and therefore will not be in the public domain for purposes of this\ngreement.\n(iii)\n"Restricted Period" means the period of Employee's employment by the Company, its parent company or one of their respective subsidiaries and one (1) year following\ntermination of such employment for any reason.\n2.\nRepresentations, Warranties and Acknowledgements\na.\nEmployee acknowledges that Employee's services are of a special, unique and extraordinary character and, Employee's position with the Business and the Company places Employee in a position of\nconfidence and trust with the customers, suppliers, vendors, employees and agents of the Company.\nb. Employee also acknowledges that businesses that are competitive with the Company include, but are not limited to, any businesses which are engaged in the Business or any other lines of business that\nthe Company may engage in the future. Employee further acknowledges that given the nature of the Business and the other businesses of the Company, certain accounts of the Company are national in scope and are not dependent on the\ngeographic location of Employee or the Company.\nc. Employee represents and warrants to the Company that Employee is not a party to any agreement or non-competition or other covenant or restriction contained in any agreement, commitment,\narrangement or understanding (whether oral or written), that in any way conflicts with or limits Employee's ability to commence or continue to render services to the Company or that would otherwise limit Employee's ability to perform\nall responsibilities in accordance with the terms and subject to the conditions of Employee's employment.\n3.\nRemedies\nIn the event of breach or threatened breach by Employee of any provision of Section hereof, the Company shall be entitled to (a) temporary and preliminary and permanent injunctive relief and without the\nposting any bond or other security, (b) damages and an equitable accounting of all earnings, profits and other benefits arising from such violation (c) recovery of all attomey's fees and costs incurred by the Company in obtaining such\nrelief, (d) cessation and repayment of any severance benefits paid to Employee pursuant to any agreement with the Company, including any employment agreement, severance benefit agreement, plan or program of the Company,\nand\n(e) any other legal and equitable relief to which it may be entitled including any and all monetary damages which the Company may incur as a result of said breach or threatened breach. The Company may pursue any remedy available,\nincluding declaratory\n4\nrelief, concurrently or consecutively in any order, and the pursuit of one such remedy at any time will not be deemed an election of remedies or waiver of the right to pursue any other remedy.\n4.\nEarly Resolution Conference\nThis Agreement is understood to be clear and enforceable as written and is executed by both parties on that basis. However, should Employee later challenge any provision as unclear, unenforceable, or\ninapplicable to activity that Employee intends to engage in, Employee will first notify Company in writing and meet with a Company representative and a neutral mediator (if the Company elects to retain one at its expense) to\ndiscuss\nresolution of any disputes between the parties. Employee will provide this notification at least fourteen (14) days before Employee engages in any activity on behalf of a competing business or engages in other activity that could\nforeseeably fall within a questioned restriction. The failure to comply with this requirement shal waive Employee's right to challenge the reasonable scope clarity, applicability, or enforceability of the A greement and its restrictions at\na\nlater time. All rights of both parties will be preserved if the early resolution conference requirement is complied with even if no agreement is reached in the conference.\n5.\nMiscellaneous\na.\nThis A greement together with the offer letter, constitute the sole and entire agreements and understandings between Employee and the Company with respect to the matters covered thereby, and there\nare no other promises, agreements, representations, warranties or other statements between Employee and the Company in respect to such matters not expressly set forth in these agreements. These A greements supersede all prior and\ncontemporaneous agreements, understandings or other arrangements concerning the subject matter thereof. These A greements may not be changed or terminated orally but only by an agreement in writing signed by the parties hereto.\nb. No course of dealing or any delay on the part of the Company or Employee in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach of this\nAgreement shall be deemed a continuing waiver of any other breach or default.\nc.\nBecause the Company is headquartered in the State of Ohio this Agreement shall be governed by, and construed in accordance with, the laws of the State of Ohio without regard to the choice of law\nrules of any state or where Employee is in fact required to work.\nd. If any provision or clause of this Agreement, or portion thereof, shall be held by any court of competent jurisdiction to be illegal void or unenforceable in such jurisdiction the remainder of such\nprovisions shall not thereby be affected and shall be given full effect, without regard to the invalid portion. It is the intention of the parties that, if any court construes any provision or clause of this Agreement, or any portion thereof, to be\nillegal, void or unenforceable because of the duration of such provision or the area or matter covered thereby, such court shall reduce the duration, area, or matter of such provision and, in its reduced form, such provision shall then be\nenforceable and shall be enforced.\n5\ne.\nThe obligations of Employee may not be delegated and Employee may not assign or otherwise transfer this Agreement or any obligations hereunder. This Agreement and all of the Company's rights\nand obligations under this Agreement may be assigned or transferred by the Company to and may be assumed by and inure to the benefit of any successor or other transferee of all or a substantial part of the assets of the Company's\nbusiness in which Employee works.\nf. Any legal suit, action or proceeding against any party hereto arising out of or relating to this A greement shall be instituted in a Ohio federal or state court in the Ohio and each party hereto waives any\nobjection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding and each party hereto irrevocably submits to the jurisdiction of any such court in any suit, action or proceeding.\n[The remainder of this page is left blank intentionally.]\n6\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered, effective as of the date first indicated above by a duly authorized officer of the Company.\nEMPLOY EE:\nS1gnature\nPnnt name\n[SIGNATURE PAGE TO\nNON-COMPETITION AGREEMENT]\nFIFTH THIRD PROCESSING SOLUTIONS, LLC\nBy:\nS1gnature\nPnnt name\nThe\n[SIGNATURE PAGE TO\nNON-COMPETITION AGREEMENT] EX-10 .29 22 a2207597zex-10_29.htm FORM OF NON-COMPETITION AND CONFIDENTIALITY AGREEMENT -- EXECUTIVE OFFICERS\nExhibit 10.29\nExecution Version\nNON-COMPETITION, NON -SOLICITATION\nAND CONFIDENTIALITY AGREEMENT\nNON-COMPETITION , NON -SOLICITATION AND CONFIDENTIALITY AGREEMENT (this “Agreement”) made as of\n, by and between Fifth Third Processing Solutions, LLC, a Delaware\nlimited liability company (together with any successor entity thereto, the “Company”), and\n(“Employee”) .\nIn consideration of the Company’s offer of employment pursuant to the terms and conditions of an offer letter, dated as of the date of this Agreement, the Company’s providing Employee with access to its\nproperty, equipment and valuable Confidential Information (as defined below), and other good and valuable consideration, the parties hereby agree as follows:\n1.\nEmployee’s Covenants\na. Non-Competition: During the Restricted Period (as defined below), Employee agrees not to compete in any manner, either directly or indirectly, whether for compensation or otherwise, with the\nCompany, including by, entering into an ownership, consulting or employment arrangement with, or render services for, any individual or entity; accept or provide assistance in the accepting of (including, but not limited to, providing any\nservice, information or assistance or other facilitation or other involvement) business or orders from customers or any potential customers of the Business or the Company with whom Employee has had contact, involvement, or\nresponsibility on behalf of any third party or otherwise, or to assist any other person or entity to compete with the Business (as defined below) or the Company by either:\n(i)\nproducing, developing or marketing, rendering services or handling products competitive with the Business or the Company in any geographic region or territory in which\nEmployee worked or had responsibility during the eighteen (18) month period preceding departure from the Company or the Closing, as applicable, or assisting others to\nproduce, develop or market, or render such services or products; or\n(ii)\naccepting employment from or having any other relationship (including, without limitation, through owning, managing, operating, controlling or consulting) with any entity\nwhich produces, develops or markets, a product, process, or service which is competitive with those products, processes, or services of the Business or the Company, whether\nexisting or planned for the future, on which Employee has worked, or concerning which Employee has in any manner acquired knowledge of or had access to Confidential\nInformation, during the eighteen (18) months preceding termination of Employee’s employment, provided, however, that it shall not be a violation of this Agreement for\nEmployee to have beneficial ownership of less than 1% of the outstanding amount of any class of securities listed on a national securities exchange or quoted on an\ninter-dealer quotation system.\nb. Non-Solicitation: During the Restricted Period, Employee agrees that Employee will not, either on Employee’s own behalf or on behalf of any other person or entity, directly or indirectly, (a) solicit\nany person or entity that is a customer of the Business or the Company, or has been a customer of the Company during the prior eighteen (18) months, to purchase any products or services the Business or the Company provided or\nprovides to the customer, (b) interfere with any of the Business’s or the Company’s business relationships, or (c) directly or indirectly solicit, divert, entice or take away any potential customer identified, selected or targeted by the\nBusiness or the Company with whom Employee had contact, involvement or responsibility during Employee’s employment with the Company and/or its affiliates, or attempt to do so for the sale of any product or service that competes\nwith a product or service offered by the Business or the Company.\nc. No-Hire: During the Restricted Period, Employee agrees that Employee will not, either on Employee’s own behalf or on behalf of any other person or entity, directly or indirectly, hire, solicit or\nencourage to leave the employ of the Company, Holdco and/or any of their subsidiaries who is then an employee of the Company, Holdco and/or any of their subsidiaries or was such an employee within twelve (12) months of the date of\nsuch hiring, soliciting, or encouragement to leave.\nd. Confidentiality. The Employee will not at any time (whether during or after the Employee’s employment with the Company or its subsidiaries) disclose, divulge, transfer or provide access to, or use for\nthe benefit of, any third party outside the Company, Holdco or their subsidiaries (other than as necessary to perform the Employee’s employment duties) any Confidential Information without prior authorization of the Company. Upon\ntermination of the Employee’s employment for any reason, the Employee shall return any and all Confidential Information and other property of the Company, Holdco or their subsidiaries in the Employee’s possession.\ne. Non-Disparagement. During the Restricted Period, Employee agrees that Employee will not make disparaging statements, in any form, about the Company or its affiliates, officers, directors, agents,\nemployees, products or services which Employee knows, or has reason to believe, are false or misleading.\n2\nf. Certain Definitions.\n(i)\n“ Business” means (i) merchant processing services (including payment authorization, clearing and settlement for credit, debit, check authorization and truncation), (ii) gift,\nprivate label, stored value and prepaid card processing, (iii) electronic funds transfer services to business customers (including debt and ATM card processing and driving\nservices, PIN and signature debit transaction authorization settlement and exception processing, (iv) payment and ATM network switching services (including the Jeanie\nnetwork), (v) credit and debit card production, activation, replacement and related management services (including on an outsourced basis), (vi) certain payments-related\nreselling services, (vii) other value added services (including fraud detection, prevention and management services) relating to the foregoing, (viii) promotional messaging\nservice relating to the foregoing, (ix) debit portfolio management services related to the foregoing, and (x) certain data processing services.\n(ii)\n“ Confidential Information” shall mean information or material of the Company which is not generally available to or used by others, or the utility or value of which is not\ngenerally known or recognized as standard practice, whether or not the underlying details are in the public domain, including: (A) information or material relating to the\nCompany and its business as conducted or anticipated to be conducted; business plans; operations; past, current or anticipated services, products or software; customers or\nprospective customers; relations with business partners or prospective business partners; or research, engineering, development, manufacturing, purchasing, accounting, or\nmarketing activities; (B) information or material relating to the Company’s inventions, improvements, discoveries, “know-how,” technological developments, or unpublished\nwritings or other works of authorship, or to the materials, apparatus, processes, formulae, plans or methods used in the development, manufacture or marketing of the\nCompany’s services, products or software; (C) information on or material relating to the Company which when received is marked as “proprietary,” “private,” or\n“c onfidential”; (D) trade secrets of the Company; (E) software of the Company in various stages of development, software designs, web-based solutions, specifications,\nprogramming aids, programming languages, interfaces, visual displays, technical documentation, user manuals, data files and databases of the Company; and (F) any similar\ninformation of the type described above which the Company obtained from another party and which the Company treats as or designates as being proprietary, private or\n3\nconfidential, whether or not owned or developed by the Company. Notwithstanding the foregoing, “Confidential Information” does not include any information which is\nproperly published or in the public domain; provided, however, that information which is published by or with the aid of Employee outside the scope of employment or\ncontrary to the requirements of this Agreement will not be considered to have been properly published, and therefore will not be in the public domain for purposes of this\nAgreement.\n(iii)\n“Restricted Period” means the period of Employee’s employment by the Company, its parent company or one of their respective subsidiaries and one (1) year following\ntermination of such employment for any reason.\n2.\nRepresentations, Warranties and Acknowledgements\na. Employee acknowledges that Employee’s services are of a special, unique and extraordinary character and, Employee’s position with the Business and the Company places Employee in a position of\nconfidence and trust with the customers, suppliers, vendors, employees and agents of the Company.\nb. Employee also acknowledges that businesses that are competitive with the Company include, but are not limited to, any businesses which are engaged in the Business or any other lines of business that\nthe Company may engage in the future. Employee further acknowledges that given the nature of the Business and the other businesses of the Company, certain accounts of the Company are national in scope and are not dependent on the\ngeographic location of Employee or the Company.\nc. Employee represents and warrants to the Company that Employee is not a party to any agreement, or non-competition or other covenant or restriction contained in any agreement, commitment,\narrangement or understanding (whether oral or written), that in any way conflicts with or limits Employee’s ability to commence or continue to render services to the Company or that would otherwise limit Employee’s ability to perform\nall responsibilities in accordance with the terms and subject to the conditions of Employee’s employment.\n3.\nRemedies\nIn the event of breach or threatened breach by Employee of any provision of Section 1 hereof, the Company shall be entitled to (a) temporary and preliminary and permanent injunctive relief and without the\nposting any bond or other security, (b) damages and an equitable accounting of all earnings, profits and other benefits arising from such violation, (c) recovery of all attorney’s fees and costs incurred by the Company in obtaining such\nrelief, (d) cessation and repayment of any severance benefits paid to Employee pursuant to any agreement with the Company, including any employment agreement, severance benefit agreement, plan or program of the Company, and\n(e) any other legal and equitable relief to which it may be entitled, including any and all monetary damages which the Company may incur as a result of said breach or threatened breach. The Company may pursue any remedy available,\nincluding declaratory\n4\nrelief, concurrently or consecutively in any order, and the pursuit of one such remedy at any time will not be deemed an election of remedies or waiver of the right to pursue any other remedy.\n4.\nEarly Resolution Conference\nThis Agreement is understood to be clear and enforceable as written and is executed by both parties on that basis. However, should Employee later challenge any provision as unclear, unenforceable, or\ninapplicable to activity that Employee intends to engage in, Employee will first notify Company in writing and meet with a Company representative and a neutral mediator (if the Company elects to retain one at its expense) to discuss\nresolution of any disputes between the parties. Employee will provide this notification at least fourteen (14) days before Employee engages in any activity on behalf of a competing business or engages in other activity that could\nforeseeably fall within a questioned restriction. The failure to comply with this requirement shall waive Employee’s right to challenge the reasonable scope, clarity, applicability, or enforceability of the Agreement and its restrictions at a\nlater time. All rights of both parties will be preserved if the early resolution conference requirement is complied with even if no agreement is reached in the conference.\n5.\nMiscellaneous\na. This Agreement, together with the offer letter, constitute the sole and entire agreements and understandings between Employee and the Company with respect to the matters covered thereby, and there\nare no other promises, agreements, representations, warranties or other statements between Employee and the Company in respect to such matters not expressly set forth in these agreements. These Agreements supersede all prior and\ncontemporaneous agreements, understandings or other arrangements concerning the subject matter thereof. These Agreements may not be changed or terminated orally but only by an agreement in writing signed by the parties hereto.\nb. No course of dealing or any delay on the part of the Company or Employee in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach of this\nAgreement shall be deemed a continuing waiver of any other breach or default.\nc. Because the Company is headquartered in the State of Ohio this Agreement shall be governed by, and construed in accordance with, the laws of the State of Ohio without regard to the choice of law\nrules of any state or where Employee is in fact required to work.\nd. If any provision or clause of this Agreement, or portion thereof, shall be held by any court of competent jurisdiction to be illegal, void or unenforceable in such jurisdiction, the remainder of such\nprovisions shall not thereby be affected and shall be given full effect, without regard to the invalid portion. It is the intention of the parties that, if any court construes any provision or clause of this Agreement, or any portion thereof, to be\nillegal, void or unenforceable because of the duration of such provision or the area or matter covered thereby, such court shall reduce the duration, area, or matter of such provision and, in its reduced form, such provision shall then be\nenforceable and shall be enforced.\n5\ne. The obligations of Employee may not be delegated and, Employee may not assign or otherwise transfer this Agreement or any obligations hereunder. This Agreement and all of the Company’s rights\nand obligations under this Agreement may be assigned or transferred by the Company to and may be assumed by and inure to the benefit of any successor or other transferee of all or a substantial part of the assets of the Company’s\nbusiness in which Employee works.\nf. Any legal suit, action or proceeding against any party hereto arising out of or relating to this Agreement shall be instituted in a Ohio federal or state court in the Ohio and each party hereto waives any\nobjection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding and each party hereto irrevocably submits to the jurisdiction of any such court in any suit, action or proceeding.\n[The remainder of this page is left blank intentionally.]\n6\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered, effective as of the date first indicated above by a duly authorized officer of the Company.\nEMPLOYEE:\nSignature\nPrint name\n[SIGNATURE PAGE TO\nNON-COMPETITION AGREEMENT]\nFIFTH THIRD PROCESSING SOLUTIONS, LLC\nBy:\nSignature\nPrint name\nTitle\n[SIGNATURE PAGE TO\nNON-COMPETITION AGREEMENT] 65b49db954428a2000d96815b1fcb033.pdf effective_date jurisdiction party term SCHEDULE A\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis non-disclosure Agreement (the “Agreement”) is made and entered into as of the Effective Date of the Licensing\nAgreement entered into between HI-TEX, INC., a Michigan corporation (the “Licensor”) and QUAKER FABRIC\nCORPORATION OF FALL RIVER, a Massachusetts company (the “Licensee”).\nRecitals\nThe parties above have entered into a License Agreement (the “Business Relationship”) which may involve the\ndisclosure by each party (the “Discloser”) to the other party (the “Recipient”) of confidential and proprietary information\nwhich is owned by the Discloser, its affiliates or third parties.\nAgreement\nNOW THEREFORE, in consideration of the mutual promises contained herein, the parties agree by their signature\non the License Agreement as follows:\nThe Confidential Information heretofore and hereafter to be exchanged between the parties is proprietary and\nconfidential to each of the parties, respectively, and is of significant importance and value to the parties and their\nrespective businesses. Accordingly, in order for the parties to facilitate their Business Relationship and to provide the\nbasis for them to furnish additional Confidential Information to each other, and in consideration thereof, the parties\nhereto have agreed as follows:\n1. During the course of disclosures hereunder and in perpetuity thereafter, each of the parties shall not, with respect\nto Confidential Information received by the Recipient the Discloser:\na. publish or disclose any Confidential Information heretofore or hereafter so received to anyone other than to\nonly those directors, officers, and employees of the Recipient who have a need to know such Confidential\nInformation in order to carry out the purpose of the disclosures contemplated by the parties; or\nb. directly or indirectly use any Confidential Information for the Recipient's own benefit (except to carry out the\npurposes of the disclosures described above) or for the benefit of any third-party.\n2. Each Recipient shall apply to Confidential Information such security procedures as it applies to like information of\nits own, provided that each Recipient shall in any event, at its own expense, provide a secure place for its retention and\nuse of Confidential Information and observe and comply with Paragraph 3 hereof.\n3. Each party has represented and warranted to and agreed with the other of them that each of its directors, officers\nand employees to whom Confidential Information is disclosed will be advised in advance of the terms of this Agreement.\n4. Each party understands, acknowledges and agrees that Confidential Information is of great competitive as well as\nmonetary value to the other and that, therefore, each party has the right to bring an action to enjoin the improper use or\ndisclosure of Confidential Information, it being agreed that a suit for monetary damages alone would be an inadequate\nremedy.\n5. The parties agree to maintain any written record made of the other's Confidential Information as “Confidential.”\n6. Upon termination of the License Agreement, the Recipient shall promptly return to the Discloser all documents or\nrecords and all copies thereof containing such Discloser's Confidential Information. All documents, memoranda, notes\nand other writings prepared by the Recipient on the basis of such Discloser's Confidential Information shall also be\nreturned to the Discloser promptly after such request or, in the alternative and promptly after such request, the Recipient\nshall destroy all of the foregoing and shall certify to the Discloser as to such destruction. The foregoing shall include,\nwithout limitation, all such records and other information in written, graphic, computer media or other form.\n7. Nothing contained herein shall be construed to grant either party a license or right to use any Confidential\nInformation of the other, or a license under any patent, trademark, copyright, know-how or trade secret of either party,\nexcept as specifically provided in the course of the Business Relationship.\n8. “Confidential Information” is defined for purposes of this Agreement to include, but not to be limited to, any one\nor more of the following, which is designated as confidential by a party: trade secrets; customer lists; business plans,\nmethods and practices; marketing plans; non-public financial data; product specifications and designs; the existence,\nnature, substance, progress and results of research and development projects; inventions; discoveries; formulae;\nprocesses; drawings; documents; records; and/or any other information, whether similar to the specified information or\nnot. Confidential Information includes, without limitation, such of the foregoing as are developed by either party, alone\nor jointly with the other of them or others, whether or not in the course of the Business Relationship, as well as such of\nthe foregoing as either party may furnish to the other from time to time.\n9. Each of the parties acknowledges that Confidential Information will be furnished, or otherwise made available to\nthe other party incident to a relationship of trust and confidence.\n10. Anything herein to the contrary notwithstanding, neither of the parties, as Recipient, shall have any obligation of\nconfidentiality with respect to any Confidential Information which:\na. was already known to the Recipient prior to acquisition from, or disclosure by the Discloser; or\nb. is or becomes publicly known through no fault or act of the Recipient; or\nc. is rightfully received by the Recipient from a third-party not known by the Recipient to have an obligation of\nconfidentiality to the other party with respect thereto; or\nd. is approved to release by written authorization of the Discloser; or\ne. is developed by the Recipient, independently or jointly with others and, in either case, without use of or\nreference to Confidential Information of the other party hereto; or\nf. the Recipient is ordered by a court of competent jurisdiction to disclose, pursuant to an order from which no\nfurther right of appeal exists or cannot be stayed pending any such appeal; provided such disclosure is strictly in\naccordance with such order, and provided further that the Recipient shall have given the Discloser prompt prior\nnotice of such order and of any request therefore and a reasonable opportunity, at the Discloser's expense, to object\nto or appeal from, or to require the Recipient to object to or appeal from, any such order or request therefore and/or\nto obtain a protective order with respect thereto.\n11. The dispute resolution provisions of the License Agreement shall apply to this schedule. SCHEDULE A\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis non-disclosure Agreement (the “Agreement”) is made and entered into as of the Effective Date of the Licensing\nAgreement entered into between HI-TEX, INC., a Michigan corporation (the “Licensor”) and QUAKER FABRIC\nCORPORATION OF FALL RIVER, a Massachusetts company (the “Licensee”).\nRecitals\nThe parties above have entered into a License Agreement (the “Business Relationship”) which may involve the\ndisclosure by each party (the “Discloser”) to the other party (the “Recipient”) of confidential and proprietary information\nwhich is owned by the Discloser, its affiliates or third parties.\nAgreement\nNOW THEREFORE, in consideration of the mutual promises contained herein, the parties agree by their signature\non the License Agreement as follows:\nThe Confidential Information heretofore and hereafter to be exchanged between the parties is proprietary and\nconfidential to each of the parties, respectively, and is of significant importance and value to the parties and their\nrespective businesses. Accordingly, in order for the parties to facilitate their Business Relationship and to provide the\nbasis for them to furnish additional Confidential Information to each other, and in consideration thereof, the parties\nhereto have agreed as follows:\n1. During the course of disclosures hereunder and in perpetuity thereafter, each of the parties shall not, with respect\nto Confidential Information received by the Recipient the Discloser:\na. publish or disclose any Confidential Information heretofore or hereafter so received to anyone other than to\nonly those directors, officers, and employees of the Recipient who have a need to know such Confidential\nInformation in order to carry out the purpose of the disclosures contemplated by the parties; or\nb. directly or indirectly use any Confidential Information for the Recipient's own benefit (except to carry out the\npurposes of the disclosures described above) or for the benefit of any third-party.\n2. Each Recipient shall apply to Confidential Information such security procedures as it applies to like information of\nits own, provided that each Recipient shall in any event, at its own expense, provide a secure place for its retention and\nuse of Confidential Information and observe and comply with Paragraph 3 hereof.\n3. Each party has represented and warranted to and agreed with the other of them that each of its directors, officers\nand employees to whom Confidential Information is disclosed will be advised in advance of the terms of this Agreement.\n4. Each party understands, acknowledges and agrees that Confidential Information is of great competitive as well as\nmonetary value to the other and that, therefore, each party has the right to bring an action to enjoin the improper use or\ndisclosure of Confidential Information, it being agreed that a suit for monetary damages alone would be an inadequate\nremedy.\n5. The parties agree to maintain any written record made of the other's Confidential Information as “Confidential.”\n6. Upon termination of the License Agreement, the Recipient shall promptly return to the Discloser all documents or\nrecords and all copies thereof containing such Discloser's Confidential Information. All documents, memoranda, notes\nand other writings prepared by the Recipient on the basis of such Discloser's Confidential Information shall also be\nreturned to the Discloser promptly after such request or, in the alternative and promptly after such request, the Recipient\nshall destroy all of the foregoing and shall certify to the Discloser as to such destruction. The foregoing shall include,\nwithout limitation, all such records and other information in written, graphic, computer media or other form.\n7. Nothing contained herein shall be construed to grant either party a license or right to use any Confidential\nInformation of the other, or a license under any patent, trademark, copyright, know-how or trade secret of either party,\nexcept as specifically provided in the course of the Business Relationship.\n8. “Confidential Information” is defined for purposes of this Agreement to include, but not to be limited to, any one\nor more of the following, which is designated as confidential by a party: trade secrets; customer lists; business plans,\nmethods and practices; marketing plans; non-public financial data; product specifications and designs; the existence,\nnature, substance, progress and results of research and development projects; inventions; discoveries; formulae;\nprocesses; drawings; documents; records; and/or any other information, whether similar to the specified information or\nnot. Confidential Information includes, without limitation, such of the foregoing as are developed by either party, alone\nor jointly with the other of them or others, whether or not in the course of the Business Relationship, as well as such of\nthe foregoing as either party may furnish to the other from time to time.\n9. Each of the parties acknowledges that Confidential Information will be furnished, or otherwise made available to\nthe other party incident to a relationship of trust and confidence.\n10. Anything herein to the contrary notwithstanding, neither of the parties, as Recipient, shall have any obligation of\nconfidentiality with respect to any Confidential Information which:\na. was already known to the Recipient prior to acquisition from, or disclosure by the Discloser; or\nb. is or becomes publicly known through no fault or act of the Recipient; or\nc. is rightfully received by the Recipient from a third-party not known by the Recipient to have an obligation of\nconfidentiality to the other party with respect thereto; or\nd. is approved to release by written authorization of the Discloser; or\ne. is developed by the Recipient, independently or jointly with others and, in either case, without use of or\nreference to Confidential Information of the other party hereto; or\nf. the Recipient is ordered by a court of competent jurisdiction to disclose, pursuant to an order from which no\nfurther right of appeal exists or cannot be stayed pending any such appeal; provided such disclosure is strictly in\naccordance with such order, and provided further that the Recipient shall have given the Discloser prompt prior\nnotice of such order and of any request therefore and a reasonable opportunity, at the Discloser's expense, to object\nto or appeal from, or to require the Recipient to object to or appeal from, any such order or request therefore and/or\nto obtain a protective order with respect thereto.\n11. The dispute resolution provisions of the License Agreement shall apply to this schedule. SCHEDULE A\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis non-disclosure Agreement (the "Agreement") is made and entered into as of the Effective Date of the Licensing\nAgreement entered into between HI-TEX, INC., a Michigan corporation (the "Licensor") and QUAKER FABRIC\nCORPORATION OF FALL RIVER, a Massachusetts company (the "Licensee").\nRecitals\nThe parties above have entered into a License Agreement (the "Business Relationship") which may involve the\ndisclosure by each party (the "Discloser") to the other party (the "Recipient") of confidential and proprietary information\nwhich is owned by the Discloser, its affiliates or third parties.\nAgreement\nNOW THEREFORE, in consideration of the mutual promises contained herein, the parties agree by their signature\non the License Agreement as follows:\nThe Confidential Information heretofore and hereafter to be exchanged between the parties is proprietary and\nconfidential to each of the parties, respectively, and is of significant importance and value to the parties and their\nrespective businesses. Accordingly, in order for the parties to facilitate their Business Relationship and to provide the\nbasis for them to furnish additional Confidential Information to each other, and in consideration thereof, the parties\nhereto have agreed as follows:\n1. During the course of disclosures hereunder and in perpetuity thereafter, each of the parties shall not, with respect\nto Confidential Information received by the Recipient the Discloser:\na. publish or disclose any Confidential Information heretofore or hereafter so received to anyone other than to\nonly those directors, officers, and employees of the Recipient who have a need to know such Confidential\nInformation in order to carry out the purpose of the disclosures contemplated by the parties; or\nb. directly or indirectly use any Confidential Information for the Recipient's own benefit (except to carry out the\npurposes of the disclosures described above) or for the benefit of any third-party.\n2. Each Recipient shall apply to Confidential Information such security procedures as it applies to like information of\nits own, provided that each Recipient shall in any event, at its own expense, provide a secure place for its retention and\nuse of Confidential Information and observe and comply with Paragraph 3 hereof.\n3. Each party has represented and warranted to and agreed with the other of them that each of its directors, officers\nand employees to whom Confidential Information is disclosed will be advised in advance of the terms of this Agreement\n4. Each party understands, acknowledges and agrees that Confidential Information is of great competitive as well as\nmonetary value to the other and that, therefore, each party has the right to bring an action to enjoin the improper use or\ndisclosure of Confidential Information, it being agreed that a suit for monetary damages alone would be an inadequate\nremedy.\n5. The parties agree to maintain any written record made of the other's Confidential Information as "Confidential."\n6. Upon termination of the License Agreement, the Recipient shall promptly return to the Discloser all documents or\nrecords and all copies thereof containing such Discloser's Confidential Information. All documents, memoranda, notes\nand other writings prepared by the Recipient on the basis of such Discloser's Confidential Information shall also be\nreturned to the Discloser promptly after such request or, in the alternative and promptly after such request, the Recipient\nshall destroy all of the foregoing and shall certify to the Discloser as to such destruction. The foregoing shall include,\nwithout limitation, all such records and other information in written, graphic, computer media or other form.\n7.\nNothing contained herein shall be construed to grant either party a license or right to use any Confidential\nInformation of the other, or a license under any patent, trademark, copyright, know-how or trade secret of either party,\nexcept as specifically provided in the course of the Business Relationship.\n8. "Confidential Information" is defined for purposes of this Agreement to include, but not to be limited to, any one\nor more of the following, which is designated as confidential by a party: trade secrets; customer lists; business plans,\nmethods and practices; marketing plans; non-public financial data; product specifications and designs; the existence,\nnature, substance, progress and results of research and development projects; inventions; discoveries; formulae;\nprocesses; drawings; documents; records; and/or any other information, whether similar to the specified information or\nnot. Confidential Information includes, without limitation, such of the foregoing as are developed by either party, alone\nor jointly with the other of them or others, whether or not in the course of the Business Relationship, as well as such of\nthe foregoing as either party may furnish to the other from time to time.\n9. Each of the parties acknowledges that Confidential Information will be furnished, or otherwise made available to\nthe other party incident to a relationship of trust and confidence.\n10 Anything herein to the contrary notwithstanding, neither of the parties, as Recipient, shall have any obligation of\nconfidentiality with respect to any Confidential Information which:\na. was already known to the Recipient prior to acquisition from, or disclosure by the Discloser; or\nb. is or becomes publicly known through no fault or act of the Recipient; or\nC. is rightfully received by the Recipient from a third-party not known by the Recipient to have an obligation of\nconfidentiality to the other party with respect thereto; or\nd. is approved to release by written authorization of the Discloser; or\ne. is developed by the Recipient, independently or jointly with others and, in either case, without use of or\nreference to Confidential Information of the other party hereto; or\nf. the Recipient is ordered by a court of competent jurisdiction to disclose, pursuant to an order from which no\nfurther\nright\nof\nappeal\nexists\nor\ncannot\nbe\nstayed\npending\nany\nsuch\nappeal;\nprovided\nsuch\ndisclosure\nis\nstrictly\nin\naccordance with such order, and provided further that the Recipient shall have given the Discloser prompt prior\nnotice of such order and of any request therefore and a reasonable opportunity, at the Discloser's expense, to object\nto or appeal from, or to require the Recipient to object to or appeal from, any such order or request therefore and/or\nto obtain a protective order with respect thereto.\n11. The dispute resolution provisions of the License Agreement shall apply to this schedule. SCHEDULE A\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis non-disclosure Agreement (the “Agreement”) is made and entered into as of the Effective Date of the Licensing\nAgreement entered into between HI-TEX, INC., a Michigan corporation (the “Licensor”) and QUAKER FABRIC\nCORPORATION OF FALL RIVER, a Massachusetts company (the “Licensee”).\nRecitals\nThe parties above have entered into a License Agreement (the “Business Relationship”) which may involve the\ndisclosure by each party (the “Discloser”) to the other party (the “Recipient”) of confidential and proprietary information\nwhich is owned by the Discloser, its affiliates or third parties.\nAgreement\nNOW THEREFORE, in consideration of the mutual promises contained herein, the parties agree by their signature\non the License Agreement as follows:\nThe Confidential Information heretofore and hereafter to be exchanged between the parties is proprietary and\nconfidential to each of the parties, respectively, and is of significant importance and value to the parties and their\nrespective businesses. Accordingly, in order for the parties to facilitate their Business Relationship and to provide the\nbasis for them to furnish additional Confidential Information to each other, and in consideration thereof, the parties\nhereto have agreed as follows:\n1. During the course of disclosures hereunder and in perpetuity thereafter, each of the parties shall not, with respect\nto Confidential Information received by the Recipient the Discloser:\na. publish or disclose any Confidential Information heretofore or hereafter so received to anyone other than to\nonly those directors, officers, and employees of the Recipient who have a need to know such Confidential\nInformation in order to carry out the purpose of the disclosures contemplated by the parties; or\nb. directly or indirectly use any Confidential Information for the Recipient's own benefit (except to carry out the\npurposes of the disclosures described above) or for the benefit of any third-party.\n2. Each Recipient shall apply to Confidential Information such security procedures as it applies to like information of\nits own, provided that each Recipient shall in any event, at its own expense, provide a secure place for its retention and\nuse of Confidential Information and observe and comply with Paragraph 3 hereof.\n3. Each party has represented and warranted to and agreed with the other of them that each of its directors, officers\nand employees to whom Confidential Information is disclosed will be advised in advance of the terms of this Agreement.\n4. Each party understands, acknowledges and agrees that Confidential Information is of great competitive as well as\nmonetary value to the other and that, therefore, each party has the right to bring an action to enjoin the improper use or\ndisclosure of Confidential Information, it being agreed that a suit for monetary damages alone would be an inadequate\nremedy.\n5. The parties agree to maintain any written record made of the other's Confidential Information as “Confidential.”\n6. Upon termination of the License Agreement, the Recipient shall promptly return to the Discloser all documents or\nrecords and all copies thereof containing such Discloser's Confidential Information. All documents, memoranda, notes\nand other writings prepared by the Recipient on the basis of such Discloser's Confidential Information shall also be\nreturned to the Discloser promptly after such request or, in the alternative and promptly after such request, the Recipient\nshall destroy all of the foregoing and shall certify to the Discloser as to such destruction. The foregoing shall include,\nwithout limitation, all such records and other information in written, graphic, computer media or other form.\n7. Nothing contained herein shall be construed to grant either party a license or right to use any Confidential\nInformation of the other, or a license under any patent, trademark, copyright, know-how or trade secret of either party,\nexcept as specifically provided in the course of the Business Relationship.\n8. “Confidential Information” is defined for purposes of this Agreement to include, but not to be limited to, any one\nor more of the following, which is designated as confidential by a party: trade secrets; customer lists; business plans,\nmethods and practices; marketing plans; non-public financial data; product specifications and designs; the existence,\nnature, substance, progress and results of research and development projects; inventions; discoveries; formulae;\nprocesses; drawings; documents; records; and/or any other information, whether similar to the specified information or\nnot. Confidential Information includes, without limitation, such of the foregoing as are developed by either party, alone\nor jointly with the other of them or others, whether or not in the course of the Business Relationship, as well as such of\nthe foregoing as either party may furnish to the other from time to time.\n9. Each of the parties acknowledges that Confidential Information will be furnished, or otherwise made available to\nthe other party incident to a relationship of trust and confidence.\n10. Anything herein to the contrary notwithstanding, neither of the parties, as Recipient, shall have any obligation of\nconfidentiality with respect to any Confidential Information which:\na. was already known to the Recipient prior to acquisition from, or disclosure by the Discloser; or\nb. is or becomes publicly known through no fault or act of the Recipient; or\nc. is rightfully received by the Recipient from a third-party not known by the Recipient to have an obligation of\nconfidentiality to the other party with respect thereto; or\nd. is approved to release by written authorization of the Discloser; or\ne. is developed by the Recipient, independently or jointly with others and, in either case, without use of or\nreference to Confidential Information of the other party hereto; or\nf. the Recipient is ordered by a court of competent jurisdiction to disclose, pursuant to an order from which no\nfurther right of appeal exists or cannot be stayed pending any such appeal; provided such disclosure is strictly in\naccordance with such order, and provided further that the Recipient shall have given the Discloser prompt prior\nnotice of such order and of any request therefore and a reasonable opportunity, at the Discloser's expense, to object\nto or appeal from, or to require the Recipient to object to or appeal from, any such order or request therefore and/or\nto obtain a protective order with respect thereto.\n11. The dispute resolution provisions of the License Agreement shall apply to this schedule. 6d64a41bd3e5c58b735d7832f2b30bdd.pdf effective_date jurisdiction party term EX-99.(D)(2)(I) 10 d344651dex99d2i.htm EX-(D)(2)(I)\nExhibit (d)(2)(i)\nGIGPEAK, INC.\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (this “Agreement”), effective\n, 20 (“Effective Date”), is entered\ninto by and between GigPeak, Inc., a Delaware corporation having offices at 130 Baytech Drive, San Jose, CA 95134 (“GigPeak”),\nand Integrated Device Technology, Inc., a Delaware corporation having offices at 6024 Silver Creek Valley Road, San Jose, CA\n95138 (“IDT”) (each herein referred to individually as a “Party,” or collectively as the “Parties”). In consideration of the covenants\nand conditions contained herein, the Parties hereby agree to the following:\nPage 1\n1. PURPOSE\nThe Parties wish to explore a business opportunity of mutual interest (the\n“Opportunity”), and in connection with the Opportunity, each Party has disclosed, and\nmay further disclose certain confidential technical and business information (in such\ncapacity a Party disclosing the information, the “Discloser”) to the other Party (in such\ncapacity a Party receiving the information, the “Recipient”), that Discloser desires\nRecipient to treat as confidential.\n2. CONFIDENTIAL INFORMATION\nA. Definition.\n“ Confidential Information” means (a) any information disclosed\n(directly or indirectly) by Discloser to Recipient pursuant to this Agreement that is in\nwritten, graphic, machine readable or other tangible form objects (including, without\nlimitation, documents, software, prototypes, samples, data sets, and plant and\nequipment) and is marked “Confidential,” “Proprietary” or in some other manner to\nindicate its confidential nature; (b) oral information disclosed (directly or indirectly) by\nDiscloser to Recipient pursuant to this Agreement, provided that such information is\ndesignated as confidential at the time of disclosure and reduced to a written summary\nby Discloser that is marked in a manner to indicate its confidential nature and delivered\nto Recipient within thirty (30) days after its oral disclosure; and (c) information\notherwise reasonably expected to be treated in a confidential manner under the\ncircumstances of disclosure under this Agreement or by the nature of the information\nitself. Confidential Information may include information of a third party that is in the\npossession of Discloser and is disclosed to Recipient under this Agreement.\nB. Exceptions.\nConfidential Information shall not, however, include any\ninformation that (i) was publicly known or made generally available without a duty of\nconfidentiality prior to the time of disclosure by Discloser to Recipient; (ii) becomes\npublicly known or made generally available without a duty of confidentiality after\ndisclosure by Discloser to Recipient through no wrongful action or inaction of\nRecipient; (iii) is in the rightful possession of Recipient without confidentiality\nobligations at the time of disclosure by Discloser to Recipient as shown by Recipient’s\nthen-contemporaneous written files and records kept in the ordinary course of\nbusiness; (iv) is obtained by Recipient from a third party without an accompanying\nduty of confidentiality without a breach of such third party’s obligations of\nconfidentiality; or (v) is independently developed by Recipient without use of or\nreference to Discloser’s Confidential Information, as shown by written records and\nother competent evidence prepared contemporaneously with such independent\ndevelopment.\nC. Compelled Disclosure.\nIf Recipient becomes legally compelled to disclose\nany Confidential Information, other than pursuant to a confidentiality agreement,\nRecipient will provide Discloser prompt written notice, if legally permissible, and will\nuse its best efforts to assist Discloser in seeking a protective order or another\nappropriate remedy. If Discloser waives Recipient’s compliance with this Agreement\nor fails to obtain a protective order or other appropriate remedy, Recipient will furnish\nonly that portion of the Confidential\nInformation that is legally required to be disclosed, provided that any Confidential\nInformation so disclosed shall maintain its confidentiality protection for all purposes\nother than such legally compelled disclosure.\n3. NONUSE AND NONDISCLOSURE\nRecipient shall not use any Confidential Information of Discloser for any\npurpose except to evaluate and engage in discussions concerning the Opportunity.\nRecipient shall not disclose any Confidential Information of Discloser to third parties\nor to Recipient’s employees, except that, subject to Section 4 below, Recipient may\ndisclose Discloser ’s Confidential Information to those employees of Recipient who are\nrequired to have the information in order to evaluate or engage in discussions\nconcerning the Opportunity. Recipient shall not reverse engineer, disassemble, or\ndecompile any prototypes, software, samples, or other tangible objects that embody\nDiscloser’s Confidential Information and that are provided to Recipient under this\nAgreement.\n4. MAINTENANCE OF CONFIDENTIALITY\nRecipient shall take reasonable measures to protect the secrecy of and\navoid disclosure and unauthorized use of the Confidential Information of Discloser.\nWithout limiting the foregoing, Recipient shall take at least those measures that it\nemploys to protect its own confidential information of a similar nature and shall ensure\nthat its employees who have access to Confidential Information of Discloser have\nsigned a nonuse and nondisclosure agreement in content at least as protective of\nDiscloser’s Confidential Information as the provisions of this Agreement, prior to any\ndisclosure of Confidential Information to such employees. The Recipient shall not\nmake any copies of the Confidential Information of Discloser unless the same are\npreviously approved in writing by Discloser. The Recipient shall reproduce Discloser ’s\nproprietary rights notices on any such authorized copies in the same manner in which\nsuch notices were set forth in or on the original. The Recipient shall promptly notify\nDiscloser of any unauthorized use or disclosure, or suspected unauthorized use or\ndisclosure, of Discloser’s Confidential Information of which Recipient becomes aware.\n5. NO OBLIGATION\nNothing in this Agreement shall obligate either Party to (a) disclose any\nConfidential Information, which shall be disclosed, if at all, solely at the Discloser ’s\noption, or (b) proceed with any transaction between them, and each Party reserves the\nright, in its sole discretion, to terminate the discussions contemplated by this\nAgreement concerning the Opportunity. Nothing in this Agreement shall be construed\nto restrict either Party’s use or disclosure of its own Confidential Information.\n6. NO WARRANTY\nALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS .”\nNEITHER PARTY MAKES ANY WARRANTIES, EXPRESS , IMPLIED OR\nOTHERWISE, REGARDING THE\nIN WITNESS WHEREOF, the Parties by their duly authorized representatives have executed this Agreement as of the Effective Date.\nGIGPEAK, INC.\nINTEGRATED DEVICE TECHNOLOGY, INC.\nBy:\n/s/ Avi Katz\nBy:\n/s/ Sailesh Chittipeddi\nName: Avi Katz\nName: Sailesh Chittipeddi\nTitle:\nCEO 1/11/17\nTitle: CTO & Global Operations VP\nPage 2\nACCURACY, COMPLETENESS OR PERFORMANCE OF ANY CONFIDENTIAL\nINFORMATION, OR WITH RESPECT TO NON-INFRINGEMENT OR OTHER\nVIOLATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD\nPARTY OR OF RECIPIENT.\n7. RETURN OF MATERIALS\nAll documents and other tangible objects containing or representing\nConfidential Information that have been disclosed by Discloser to Recipient, and all\ncopies or extracts thereof or notes derived therefrom that are in the possession of\nRecipient, shall be and remain the property of Discloser and shall be promptly returned\nto Discloser or destroyed (with proof of such destruction), each upon Discloser’s\nwritten request.\n8. NO LICENSE\nNothing in this Agreement is intended to grant any rights to Recipient\nunder any patent, mask work right, copyright or other intellectual property right of\nDiscloser, nor shall this Agreement grant Recipient any rights in or to the Confidential\nInformation of Discloser other than the limited right to review such Confidential\nInformation solely for the purpose of determining whether to enter into a transaction\nconcerning the Opportunity as expressly set forth in Section 3 of this Agreement.\n9. EXPORT RESTRICTIONS\nAny software and other technical information disclosed under this\nAgreement may be subject to restrictions and controls imposed by the Export\nAdministration Act, Export Administration Regulations and other laws and regulations\nof the United States and any other applicable government or jurisdiction, as enacted\nfrom time to time (the “Acts”). The Parties shall comply with all restrictions and\ncontrols imposed by the Acts.\n10. TERM\nThe obligations of Recipient under this Agreement shall survive until such\ntime as all Confidential Information of Discloser hereunder qualifies as any of the\nexceptions to Confidential Information set forth in Section 2.B through no wrongful\naction or inaction of Recipient.\n11. REMEDIES\nRecipient agrees that any violation or threatened violation of this\nAgreement may cause irreparable injury to Discloser, entitling Discloser to seek\ninjunctive relief in addition to all legal remedies.\n12. MISCELLANEOUS\nThis Agreement shall bind and inure to the benefit of the Parties and their\nrespective successors and permitted assigns. Neither Party may assign or otherwise\ntransfer this Agreement without the prior written consent of the other Party, except that\neither Party may assign this Agreement without consent in connection with a merger,\nreorganization, consolidation, or sale of all or substantially all of the assets to which\nthis Agreement pertains, provided that the assigning Party provides prompt written\nnotice to the other Party prior to any such permitted assignment. Any assignment or\ntransfer of this Agreement in violation of the foregoing shall be null and void. This\nAgreement will be interpreted and construed in accordance with the laws of the State\nof California, without regard to conflict of law principles. Each Party hereby represents\nand warrants that the persons executing this Agreement on its behalf have express\nauthority to do so, and, in so doing, to bind such Party thereto. This Agreement\ncontains the entire agreement between the Parties with respect to the Opportunity and\nsupersedes all prior written and oral agreements between the Parties regarding the\nOpportunity. Recipient shall not have any obligation, express or implied by law, with\nrespect to trade secret or proprietary information of Discloser disclosed under this\nAgreement except as set forth herein. If a court or other body of competent jurisdiction\nfinds, or the Parties mutually believe, any provision of this Agreement, or portion\nthereof, to be invalid or unenforceable, such provision will be enforced to the\nmaximum extent permissible so as to effect the intent of the Parties, and the remainder\nof this Agreement will continue in full force and effect. No provision of this\nAgreement may be waived except by a writing executed by the Party against whom the\nwaiver is to be effective. A Party’s failure to enforce any provision of this Agreement\nshall neither be construed as a waiver of the provision nor prevent the Party from\nenforcing any other provision of this Agreement. No provision of this Agreement may\nbe amended or otherwise modified except by a writing signed by the Parties to this\nAgreement. The Parties may execute this Agreement in counterparts, each of which is\ndeemed an original, but all of which together constitute one and the same agreement.\nThis Agreement may be delivered by facsimile transmission, and facsimile copies of\nexecuted signature pages shall be binding as originals.\n13. DISPUTES\nAll disputes arising out of this Agreement will be subject to the exclusive\njurisdiction and venue of the state courts located in Santa Clara County, California and\nthe federal courts located in the Northern District of California and each Party hereby\nconsents to the personal jurisdiction thereof. EX-99.(D)(2)(I) 10 d344651dex99d2i.htm EX-(D)(2)(1)\nExhibit (d)(2)(i)\nGIGPEAK, INC. MUTUAL NONDISCIL.OSURE AGREEMENT This Mutual Nondisclosure Agreement (this “Agreement”), effective , 20 (“Effective Date”), is entered\ninto by and between GigPeak, Inc., a Delaware corporation having offices at 130 Baytech Drive, San Jose, CA 95134 (“GigPeak”), and Integrated Device Technology, Inc., a Delaware corporation having offices at 6024 Silver Creek Valley Road, San Jose, CA 95138 (“IDT™) (each herein referred to individually as a “Party,” or collectively as the “Parties”). In consideration of the covenants and conditions contained herein, the Parties hereby agree to the following: 1. PURPOSE\nThe Parties wish to explore a business opportunity of mutual interest (the\n“Opportunity”), and in connection with the Opportunity, each Party has disclosed, and\nmay further disclose certain confidential technical and business information (in such\ncapacity a Party disclosing the information, the “Discloser”) to the other Party (in such\ncapacity a Party receiving the information, the “Recipient”), that Discloser desires\nRecipient to treat as confidential.\n2. CONFIDENTIAL INFORMATION\nA. Definition. “Confidential Information” means (a) any information disclosed\n(directly or indirectly) by Discloser to Recipient pursuant to this Agreement that is in\nwritten, graphic, machine readable or other tangible form objects (including, without\nlimitation, documents, software, prototypes, samples, data sets, and plant and\nequipment) and is marked “Confidential,” “Proprietary” or in some other manner to\nindicate its confidential nature; (b) oral information disclosed (directly or indirectly) by\nDiscloser to Recipient pursuant to this Agreement, provided that such information is\ndesignated as confidential at the time of disclosure and reduced to a written summary\nby Discloser that is marked in a manner to indicate its confidential nature and delivered\nto Recipient within thirty (30) days after its oral disclosure; and (c) information\notherwise reasonably expected to be treated in a confidential manner under the\ncircumstances of disclosure under this Agreement or by the nature of the information\nitself. Confidential Information may include information of a third party that is in the\npossession of Discloser and is disclosed to Recipient under this Agreement.\nB. Exceptions. Confidential Information shall not, however, include any\ninformation that (i) was publicly known or made generally available without a duty of\nconfidentiality prior to the time of disclosure by Discloser to Recipient; (ii) becomes\npublicly known or made generally available without a duty of confidentiality after\ndisclosure by Discloser to Recipient through no wrongful action or inaction of\nRecipient; (iii) is in the rightful possession of Recipient without confidentiality\nobligations at the time of disclosure by Discloser to Recipient as shown by Recipient’s\nthen-contemporaneous written files and records kept in the ordinary course of\nbusiness; (iv) is obtained by Recipient from a third party without an accompanying\nduty of confidentiality without a breach of such third party’s obligations of\nconfidentiality; or (v) is independently developed by Recipient without use of or\nreference to Discloser’s Confidential Information, as shown by written records and\nother competent evidence prepared contemporaneously with such independent\ndevelopment.\nC. Compelled Disclosure. If Recipient becomes legally compelled to disclose\nany Confidential Information, other than pursuant to a confidentiality agreement,\nRecipient will provide Discloser prompt written notice, if legally permissible, and will\nuse its best efforts to assist Discloser in seeking a protective order or another\nappropriate remedy. If Discloser waives Recipient’s compliance with this Agreement\nor fails to obtain a protective order or other appropriate remedy, Recipient will furnish\nonly that portion of the Confidential\nInformation that is legally required to be disclosed, provided that any Confidential\nInformation so disclosed shall maintain its confidentiality protection for all purposes\nother than such legally compelled disclosure.\n3. NONUSE AND NONDISCLOSURE\nRecipient shall not use any Confidential Information of Discloser for any\npurpose except to evaluate and engage in discussions concerning the Opportunity.\nRecipient shall not disclose any Confidential Information of Discloser to third parties\nor to Recipient’s employees, except that, subject to Section 4 below, Recipient may\ndisclose Discloser’s Confidential Information to those employees of Recipient who are\nrequired to have the information in order to evaluate or engage in discussions\nconcerning the Opportunity. Recipient shall not reverse engineer, disassemble, or\ndecompile any prototypes, software, samples, or other tangible objects that embody\nDiscloser’s Confidential Information and that are provided to Recipient under this\nAgreement.\n4. MAINTENANCE OF CONFIDENTIALITY\nRecipient shall take reasonable measures to protect the secrecy of and\navoid disclosure and unauthorized use of the Confidential Information of Discloser.\nWithout limiting the foregoing, Recipient shall take at least those measures that it\nemploys to protect its own confidential information of a similar nature and shall ensure\nthat its employees who have access to Confidential Information of Discloser have\nsigned a nonuse and nondisclosure agreement in content at least as protective of\nDiscloser’s Confidential Information as the provisions of this Agreement, prior to any\ndisclosure of Confidential Information to such employees. The Recipient shall not\nmake any copies of the Confidential Information of Discloser unless the same are\npreviously approved in writing by Discloser. The Recipient shall reproduce Discloser’s\nproprietary rights notices on any such authorized copies in the same manner in which\nsuch notices were set forth in or on the original. The Recipient shall promptly notify\nDiscloser of any unauthorized use or disclosure, or suspected unauthorized use or\ndisclosure, of Discloser’s Confidential Information of which Recipient becomes aware.\n5. NO OBLIGATION\nNothing in this Agreement shall obligate either Party to (a) disclose any\nConfidential Information, which shall be disclosed, if at all, solely at the Discloser’s\noption, or (b) proceed with any transaction between them, and each Party reserves the\nright, in its sole discretion, to terminate the discussions contemplated by this\nAgreement concerning the Opportunity. Nothing in this Agreement shall be construed\nto restrict either Party’s use or disclosure of its own Confidential Information.\n6. NO WARRANTY\nALL CONFIDENTIAL INFORMATION IS PROVIDED “AS 1IS.”\nNEITHER PARTY MAKES ANY WARRANTIES, EXPRESS, IMPLIED OR\nOTHERWISE, REGARDING THE\nPage 1\fACCURACY, COMPLETENESS OR PERFORMANCE OF ANY CONFIDENTIAL\nINFORMATION, OR WITH RESPECT TO NON-INFRINGEMENT OR OTHER\nVIOLATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD\nPARTY OR OF RECIPIENT.\n7. RETURN OF MATERIALS\nAll documents and other tangible objects containing or representing\nConfidential Information that have been disclosed by Discloser to Recipient, and all\ncopies or extracts thereof or notes derived therefrom that are in the possession of\nRecipient, shall be and remain the property of Discloser and shall be promptly returned\nto Discloser or destroyed (with proof of such destruction), each upon Discloser’s\nwritten request.\n8. NO LICENSE\nNothing in this Agreement is intended to grant any rights to Recipient\nunder any patent, mask work right, copyright or other intellectual property right of\nDiscloser, nor shall this Agreement grant Recipient any rights in or to the Confidential\nInformation of Discloser other than the limited right to review such Confidential\nInformation solely for the purpose of determining whether to enter into a transaction\nconcerning the Opportunity as expressly set forth in Section 3 of this Agreement.\n9. EXPORT RESTRICTIONS\nAny software and other technical information disclosed under this\nAgreement may be subject to restrictions and controls imposed by the Export\nAdministration Act, Export Administration Regulations and other laws and regulations\nof the United States and any other applicable government or jurisdiction, as enacted\nfrom time to time (the “Acts”). The Parties shall comply with all restrictions and\ncontrols imposed by the Acts.\n10. TERM\nThe obligations of Recipient under this Agreement shall survive until such\ntime as all Confidential Information of Discloser hereunder qualifies as any of the\nexceptions to Confidential Information set forth in Section 2.B through no wrongful\naction or inaction of Recipient.\n11. REMEDIES\nRecipient agrees that any violation or threatened violation of this\nAgreement may cause irreparable injury to Discloser, entitling Discloser to seek\ninjunctive relief in addition to all legal remedies.\n12. MISCELLANEOUS\nThis Agreement shall bind and inure to the benefit of the Parties and their\nrespective successors and permitted assigns. Neither Party may assign or otherwise\ntransfer this Agreement without the prior written consent of the other Party, except that\neither Party may assign this Agreement without consent in connection with a merger,\nreorganization, consolidation, or sale of all or substantially all of the assets to which\nthis Agreement pertains, provided that the assigning Party provides prompt written\nnotice to the other Party prior to any such permitted assignment. Any assignment or\ntransfer of this Agreement in violation of the foregoing shall be null and void. This\nAgreement will be interpreted and construed in accordance with the laws of the State\nof California, without regard to conflict of law principles. Each Party hereby represents\nand warrants that the persons executing this Agreement on its behalf have express\nauthority to do so, and, in so doing, to bind such Party thereto. This Agreement\ncontains the entire agreement between the Parties with respect to the Opportunity and\nsupersedes all prior written and oral agreements between the Parties regarding the\nOpportunity. Recipient shall not have any obligation, express or implied by law, with\nrespect to trade secret or proprietary information of Discloser disclosed under this\nAgreement except as set forth herein. If a court or other body of competent jurisdiction\nfinds, or the Parties mutually believe, any provision of this Agreement, or portion\nthereof, to be invalid or unenforceable, such provision will be enforced to the\nmaximum extent permissible so as to effect the intent of the Parties, and the remainder\nof this Agreement will continue in full force and effect. No provision of this\nAgreement may be waived except by a writing executed by the Party against whom the\nwaiver is to be effective. A Party’s failure to enforce any provision of this Agreement\nshall neither be construed as a waiver of the provision nor prevent the Party from\nenforcing any other provision of this Agreement. No provision of this Agreement may\nbe amended or otherwise modified except by a writing signed by the Parties to this\nAgreement. The Parties may execute this Agreement in counterparts, each of which is\ndeemed an original, but all of which together constitute one and the same agreement.\nThis Agreement may be delivered by facsimile transmission, and facsimile copies of\nexecuted signature pages shall be binding as originals.\n13. DISPUTES\nAll disputes arising out of this Agreement will be subject to the exclusive\njurisdiction and venue of the state courts located in Santa Clara County, California and\nthe federal courts located in the Northern District of California and each Party hereby\nconsents to the personal jurisdiction thereof.\nIN WITNESS WHEREOF, the Parties by their duly authorized representatives have executed this Agreement as of the Effective Date. GIGPEAK, INC.\nINTEGRATED DEVICE TECHNOLOGY, INC.\nBy: /s/ Avi Katz By: /s/ Sailesh Chittipeddi\nName: Avi Katz Name: Sailesh Chittipeddi\nTitle: CEO 1/11/17 Title: CTO & Global Operations VP\nPage 2 EX-99.(D)(2)(I) 10 d344651dex99d2i.htm EX-(D)(2)(I)\nExhibit (d)(2)(i)\nGIGPEAK,. INC.\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (this "Agreement"), effective\n20 ("Effective Date"), is entered\ninto by and between GigPeak, Inc., a Delaware corporation having offices at 130 Baytech Drive, San Jose, CA 95134 ("GigPeak"),\nand Integrated Device Technology, Inc., a Delaware corporation having offices at 6024 Silver Creek Valley Road, San Jose, CA\n95138 ("IDT") (each herein referred to individually as a "Party," or collectively as the "Parties"). In consideration of the covenants\nand conditions contained herein, the Parties hereby agree to the following:\n1. PURPOSE\nInformation that is legally required to be disclosed, provided that any Confidential\nThe Parties wish to explore a business opportunity of mutual interest (the\nInformation so disclosed shall maintain its confidentiality protection for all purposes\n"Opportunity"), and in connection with the Opportunity, each Party has disclosed, and\nother than such legally compelled disclosure.\nmay further disclose certain confidential technica and business information (in such\n3.\nNONUSE AND NONDISCLOSURE\ncapacity a Party disclosing the information, the "Discloser") to the other Party (in such\ncapacity a Party receiving the information, the "Recipient"), that Discloser desires\nRecipient shall not use any Confidential Information of Discloser for any\nRecipient to treat as confidential.\npurpose except to evaluate and engage in discussions concerning the Opportunity.\nRecipient shall not disclose any Confidential Information of Discloser to third parties\n2.\nCONFIDENTIAL INFORMATION\nor to Recipient's employees, except that, subject to Section 4 below, Recipient may\nA. Definition. "Confidential Information" means (a) any information disclosed\ndisclose Discloser's Confidential Information to those employees of Recipient who are\n(directly or indirectly) by Discloser to Recipient pursuant to this Agreement that is in\nrequired to have the information in order to evaluate or engage in discussions\nwritten, graphic, machine readable or other tangible form objects (including, without\nconcerning the Opportunity. Recipient shall not reverse engineer, disassemble, or\nlimitation, documents, software, prototypes, samples, data sets, and plant and\ndecompile any prototypes, software, samples, or other tangible objects that embody\nequipment) and is marked "Confidential," "Proprietary" or in some other manner to\nDiscloser's Confidential Information and that are provided to Recipient under this\nindicate its confidential nature; (b) oral information disclosed (directly or indirectly) by\nAgreement.\nDiscloser to Recipient pursuant to this Agreement, provided that such information is\n4.\nMAINTENANCE OF CONFIDENTIALITY\ndesignated as confidential at the time of disclosure and reduced to a written summary\nby Discloser that is marked in a manner to indicate its confidential nature and delivered\nRecipient shall take reasonable measures to protect the secrecy of and\nto Recipient within thirty (30) days after its oral disclosure; and (c) information\navoid disclosure and unauthorized use of the Confidential Information of Discloser.\notherwise reasonably expected to be treated in a confidential manner under the\nWithout limiting the foregoing, Recipient shall take at least those measures that it\ncircumstances of disclosure under this Agreement or by the nature of the information\nemploys to protect its own confidential information of a similar nature and shall ensure\nitself. Confidential Information may include information of a third party that is in the\nthat its employees who have access to Confidential Information of Discloser have\npossession of Discloser and is disclosed to Recipient under this Agreement.\nsigned a nonuse and nondisclosure agreement in content at least as protective of\nDiscloser's Confidential Information as the provisions of this Agreement, prior to any\nB. Exceptions.\nConfidential Information shall not, however, include any\ndisclosure of Confidential Information to such employees. The Recipient shall not\ninformation that (i) was publicly known or made generally available without a duty of\nmake any copies of the Confidential Information of Discloser unless the same are\nconfidentiality prior to the time of disclosure by Discloser to Recipient; (ii) becomes\npreviously approved in writing by Discloser. The Recipient shall reproduce Discloser's\npublicly known or made generally available without a duty of confidentiality after\nproprietary rights notices on any such authorized copies in the same manner in which\ndisclosure by Discloser to Recipient through no wrongful action or inaction of\nsuch notices were set forth in or on the original. The Recipient shall promptly notify\nRecipient; (iii) is in the rightful possession of Recipient without confidentiality\nDiscloser of any unauthorized use or disclosure, or suspected unauthorized use or\nobligations at the time of disclosure by Discloser to Recipient as shown by Recipient's\ndisclosure, of Discloser's Confidential Information of which Recipient becomes aware.\nthen-contemporaneous written files and records kept in the ordinary course of\nbusiness; (iv) is obtained by Recipient from a third party without an accompanying\n5.\nNo OBLIGATION\nduty of confidentiality without a breach of such third party's obligations of\nconfidentiality; or (v) is independently developed by Recipient without use of or\nNothing in this Agreement shall obligate either Party to (a) disclose any\nreference to Discloser's Confidential Information, as shown by written records and\nConfidential Information, which shall be disclosed, if at all, solely at the Discloser's\nother competent evidence prepared contemporaneously with such independent\noption, or (b) proceed with any transaction between them, and each Party reserves the\ndevelopment.\nright, in its sole discretion, to terminate the discussions contemplated by this\nAgreement concerning the Opportunity Nothing in this Agreement shall be construed\nC.\nCompelled Disclosure.\nIf Recipient becomes legally compelled to disclose\nto restrict either Party's use or disclosure of its own Confidential Information.\nany Confidential Information, other than pursuant to a confidentiality agreement,\nRecipient will provide Discloser prompt written notice, if legally permissible, and will\n6.\nNo WARRANTY\nuse its best efforts to assist Discloser in seeking a protective order or another\nappropriate remedy. If Discloser waives Recipient's compliance with this Agreement\nALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS."\nor fails to obtain a protective order or other appropriate remedy, Recipient will furnish\nNEITHER PARTY MAKES ANY WARRANTIES, EXPRESS, IMPLIED OR\nonly that portion of the Confidential\nOTHERWISE, REGARDING THE\nPage 1\nACCURACY, COMPLETENESS OR PERFORMANCE OF ANY CONFIDENTIAL\n12. MISCELLANEOUS\nINFORMATION, OR WITH RESPECT TO NON-INFRINGEMENT OR OTHER\nVIOLATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD\nThis Agreement shall bind and inure to the benefit of the Parties and their\nPARTY OR OF RECIPIENT.\nrespective successors and permitted assigns. Neither Party may assign or otherwise\ntransfer this Agreement without the prior written consent of the other Party, except that\n7.\nRETURN OF MATERIALS\neither Party may assign this Agreement without consent in connection with a merger,\nreorganization, consolidation, or sale of all or substantially all of the assets to which\nAll documents and other tangible objects containing or representing\nthis Agreement pertains, provided that the assigning Party provides prompt written\nConfidential Information that have been disclosed by Discloser to Recipient, and all\nnotice to the other Party prior to any such permitted assignment. Any assignment or\ncopies or extracts thereof or notes derived therefrom that are in the possession of\ntransfer of this Agreement in violation of the foregoing shall be null and void. This\nRecipient, shall be and remain the property of Discloser and shall be promptly returned\nAgreement will be interpreted and construed in accordance with the laws of the State\nto Discloser or destroyed (with proof of such destruction), each upon Discloser's\nof\nCalifornia,\nwithout\nregard\nto\nconflict\nof\nlaw\nprinciples.\nEach\nParty\nhereby\nrepresents\nwritten request.\nand warrants that the persons executing this Agreement on its behalf have express\n8.\nNo LICENSE\nauthority to do so, and, in so doing, to bind such Party thereto. This Agreement\ncontains the entire agreement between the Parties with respect to the Opportunity and\nNothing in this Agreement is intended to grant any rights to Recipient\nsupersedes all prior written and oral agreements between the Parties regarding the\nunder any patent, mask work right, copyright or other intellectual property right of\nOpportunity. Recipient shall not have any obligation, express or implied by law, with\nDiscloser, nor shall this Agreement grant Recipient any rights in or to the Confidential\nrespect to trade secret or proprietary information of Discloser disclosed under this\nInformation of Discloser other than the limited right to review such Confidentia\nAgreement except as set forth herein. If a court or other body of competent jurisdiction\nInformation solely for the purpose of determining whether to enter into a transaction\nfinds, or the Parties mutually believe, any provision of this Agreement, or portion\nconcerning the Opportunity as expressly set forth in Section 3 of this Agreement.\nthereof, to be invalid or unenforceable, such provision will be enforced to the\nmaximum extent permissible so as to effect the intent of the Parties, and the remainder\n9.\nExPoRT RESTRICTIONS\nof this Agreement will continue in full force and effect. No provision of this\nAgreement may be waived except by a writing executed by the Party against whom the\nAny software and other technical information disclosed under this\nwaiver is to be effective. A Party's failure to enforce any provision of this Agreement\nAgreement may be subject to restrictions and controls imposed by the Export\nshall neither be construed as a waiver of the provision nor prevent the Party from\nAdministration Act, Export Administration Regulations and other laws and regulations\nenforcing any other provision of this Agreement. No provision of this Agreement may\nof the United States and any other applicable government or jurisdiction, as enacted\nbe amended or otherwise modified except by a writing signed by the Parties to this\nfrom time to time (the "Acts"). The Parties shall comply with all restrictions and\nAgreement. The Parties may execute this Agreement in counterparts, each of which is\ncontrols imposed by the Acts.\ndeemed an original, but all of which together constitute one and the same agreement.\nThis Agreement may be delivered by facsimile transmission, and facsimile copies of\n10. TERM\nexecuted signature pages shall be binding as originals.\nThe obligations of Recipient under this Agreement shall survive until such\ntime as all Confidential Information of Discloser hereunder qualifies as any of the\n13. DISPUTES\nexceptions to Confidential Information set forth in Section 2.B through no wrongful\nAll disputes arising out of this Agreement will be subject to the exclusive\naction or inaction of Recipient.\njurisdiction and venue of the state courts located in Santa Clara County, California and\n11. REMEDIES\nthe federal courts located in the Northern District of California and each Party hereby\nconsents to the personal jurisdiction thereof.\nRecipient agrees that any violation or threatened violation of this\nAgreement may cause irreparable injury to Discloser, entitling Discloser to seek\ninjunctive relief in addition to all legal remedies.\nIN\nWITNESS WHEREOF, the Parties by their duly authorized representatives have executed this Agreement as of the Effective Date.\nGIGPEAK, INC.\nINTEGRATED DEVICE TECHNOLOGY, INC.\nBy:\n/s/ Avi Katz\nBy:\n/s/ Sailesh Chittipeddi\nName:\nAvi Katz\nName: Sailesh Chittipeddi\nTitle:\nCEO 1/11/17\nTitle:\nCTO & Global Operations VP\nPage 2 EX-99.(D)(2)(I) 10 d344651dex99d2i.htm EX-(D)(2)(I)\nExhibit (d)(2)(i)\nGIGPEAK, INC.\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (this “Agreement”), effective\n, 20 (“Effective Date”), is entered\ninto by and between GigPeak, Inc., a Delaware corporation having offices at 130 Baytech Drive, San Jose, CA 95134 (“GigPeak”),\nand Integrated Device Technology, Inc., a Delaware corporation having offices at 6024 Silver Creek Valley Road, San Jose, CA\n95138 (“IDT”) (each herein referred to individually as a “Party,” or collectively as the “Parties”). In consideration of the covenants\nand conditions contained herein, the Parties hereby agree to the following:\nPage 1\n1. PURPOSE\nThe Parties wish to explore a business opportunity of mutual interest (the\n“Opportunity”), and in connection with the Opportunity, each Party has disclosed, and\nmay further disclose certain confidential technical and business information (in such\ncapacity a Party disclosing the information, the “Discloser”) to the other Party (in such\ncapacity a Party receiving the information, the “Recipient”), that Discloser desires\nRecipient to treat as confidential.\n2. CONFIDENTIAL INFORMATION\nA. Definition.\n“ Confidential Information” means (a) any information disclosed\n(directly or indirectly) by Discloser to Recipient pursuant to this Agreement that is in\nwritten, graphic, machine readable or other tangible form objects (including, without\nlimitation, documents, software, prototypes, samples, data sets, and plant and\nequipment) and is marked “Confidential,” “Proprietary” or in some other manner to\nindicate its confidential nature; (b) oral information disclosed (directly or indirectly) by\nDiscloser to Recipient pursuant to this Agreement, provided that such information is\ndesignated as confidential at the time of disclosure and reduced to a written summary\nby Discloser that is marked in a manner to indicate its confidential nature and delivered\nto Recipient within thirty (30) days after its oral disclosure; and (c) information\notherwise reasonably expected to be treated in a confidential manner under the\ncircumstances of disclosure under this Agreement or by the nature of the information\nitself. Confidential Information may include information of a third party that is in the\npossession of Discloser and is disclosed to Recipient under this Agreement.\nB. Exceptions.\nConfidential Information shall not, however, include any\ninformation that (i) was publicly known or made generally available without a duty of\nconfidentiality prior to the time of disclosure by Discloser to Recipient; (ii) becomes\npublicly known or made generally available without a duty of confidentiality after\ndisclosure by Discloser to Recipient through no wrongful action or inaction of\nRecipient; (iii) is in the rightful possession of Recipient without confidentiality\nobligations at the time of disclosure by Discloser to Recipient as shown by Recipient’s\nthen-contemporaneous written files and records kept in the ordinary course of\nbusiness; (iv) is obtained by Recipient from a third party without an accompanying\nduty of confidentiality without a breach of such third party’s obligations of\nconfidentiality; or (v) is independently developed by Recipient without use of or\nreference to Discloser’s Confidential Information, as shown by written records and\nother competent evidence prepared contemporaneously with such independent\ndevelopment.\nC. Compelled Disclosure.\nIf Recipient becomes legally compelled to disclose\nany Confidential Information, other than pursuant to a confidentiality agreement,\nRecipient will provide Discloser prompt written notice, if legally permissible, and will\nuse its best efforts to assist Discloser in seeking a protective order or another\nappropriate remedy. If Discloser waives Recipient’s compliance with this Agreement\nor fails to obtain a protective order or other appropriate remedy, Recipient will furnish\nonly that portion of the Confidential\nInformation that is legally required to be disclosed, provided that any Confidential\nInformation so disclosed shall maintain its confidentiality protection for all purposes\nother than such legally compelled disclosure.\n3. NONUSE AND NONDISCLOSURE\nRecipient shall not use any Confidential Information of Discloser for any\npurpose except to evaluate and engage in discussions concerning the Opportunity.\nRecipient shall not disclose any Confidential Information of Discloser to third parties\nor to Recipient’s employees, except that, subject to Section 4 below, Recipient may\ndisclose Discloser ’s Confidential Information to those employees of Recipient who are\nrequired to have the information in order to evaluate or engage in discussions\nconcerning the Opportunity. Recipient shall not reverse engineer, disassemble, or\ndecompile any prototypes, software, samples, or other tangible objects that embody\nDiscloser’s Confidential Information and that are provided to Recipient under this\nAgreement.\n4. MAINTENANCE OF CONFIDENTIALITY\nRecipient shall take reasonable measures to protect the secrecy of and\navoid disclosure and unauthorized use of the Confidential Information of Discloser.\nWithout limiting the foregoing, Recipient shall take at least those measures that it\nemploys to protect its own confidential information of a similar nature and shall ensure\nthat its employees who have access to Confidential Information of Discloser have\nsigned a nonuse and nondisclosure agreement in content at least as protective of\nDiscloser’s Confidential Information as the provisions of this Agreement, prior to any\ndisclosure of Confidential Information to such employees. The Recipient shall not\nmake any copies of the Confidential Information of Discloser unless the same are\npreviously approved in writing by Discloser. The Recipient shall reproduce Discloser ’s\nproprietary rights notices on any such authorized copies in the same manner in which\nsuch notices were set forth in or on the original. The Recipient shall promptly notify\nDiscloser of any unauthorized use or disclosure, or suspected unauthorized use or\ndisclosure, of Discloser’s Confidential Information of which Recipient becomes aware.\n5. NO OBLIGATION\nNothing in this Agreement shall obligate either Party to (a) disclose any\nConfidential Information, which shall be disclosed, if at all, solely at the Discloser ’s\noption, or (b) proceed with any transaction between them, and each Party reserves the\nright, in its sole discretion, to terminate the discussions contemplated by this\nAgreement concerning the Opportunity. Nothing in this Agreement shall be construed\nto restrict either Party’s use or disclosure of its own Confidential Information.\n6. NO WARRANTY\nALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS .”\nNEITHER PARTY MAKES ANY WARRANTIES, EXPRESS , IMPLIED OR\nOTHERWISE, REGARDING THE\nIN WITNESS WHEREOF, the Parties by their duly authorized representatives have executed this Agreement as of the Effective Date.\nGIGPEAK, INC.\nINTEGRATED DEVICE TECHNOLOGY, INC.\nBy:\n/s/ Avi Katz\nBy:\n/s/ Sailesh Chittipeddi\nName: Avi Katz\nName: Sailesh Chittipeddi\nTitle:\nCEO 1/11/17\nTitle: CTO & Global Operations VP\nPage 2\nACCURACY, COMPLETENESS OR PERFORMANCE OF ANY CONFIDENTIAL\nINFORMATION, OR WITH RESPECT TO NON-INFRINGEMENT OR OTHER\nVIOLATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD\nPARTY OR OF RECIPIENT.\n7. RETURN OF MATERIALS\nAll documents and other tangible objects containing or representing\nConfidential Information that have been disclosed by Discloser to Recipient, and all\ncopies or extracts thereof or notes derived therefrom that are in the possession of\nRecipient, shall be and remain the property of Discloser and shall be promptly returned\nto Discloser or destroyed (with proof of such destruction), each upon Discloser’s\nwritten request.\n8. NO LICENSE\nNothing in this Agreement is intended to grant any rights to Recipient\nunder any patent, mask work right, copyright or other intellectual property right of\nDiscloser, nor shall this Agreement grant Recipient any rights in or to the Confidential\nInformation of Discloser other than the limited right to review such Confidential\nInformation solely for the purpose of determining whether to enter into a transaction\nconcerning the Opportunity as expressly set forth in Section 3 of this Agreement.\n9. EXPORT RESTRICTIONS\nAny software and other technical information disclosed under this\nAgreement may be subject to restrictions and controls imposed by the Export\nAdministration Act, Export Administration Regulations and other laws and regulations\nof the United States and any other applicable government or jurisdiction, as enacted\nfrom time to time (the “Acts”). The Parties shall comply with all restrictions and\ncontrols imposed by the Acts.\n10. TERM\nThe obligations of Recipient under this Agreement shall survive until such\ntime as all Confidential Information of Discloser hereunder qualifies as any of the\nexceptions to Confidential Information set forth in Section 2.B through no wrongful\naction or inaction of Recipient.\n11. REMEDIES\nRecipient agrees that any violation or threatened violation of this\nAgreement may cause irreparable injury to Discloser, entitling Discloser to seek\ninjunctive relief in addition to all legal remedies.\n12. MISCELLANEOUS\nThis Agreement shall bind and inure to the benefit of the Parties and their\nrespective successors and permitted assigns. Neither Party may assign or otherwise\ntransfer this Agreement without the prior written consent of the other Party, except that\neither Party may assign this Agreement without consent in connection with a merger,\nreorganization, consolidation, or sale of all or substantially all of the assets to which\nthis Agreement pertains, provided that the assigning Party provides prompt written\nnotice to the other Party prior to any such permitted assignment. Any assignment or\ntransfer of this Agreement in violation of the foregoing shall be null and void. This\nAgreement will be interpreted and construed in accordance with the laws of the State\nof California, without regard to conflict of law principles. Each Party hereby represents\nand warrants that the persons executing this Agreement on its behalf have express\nauthority to do so, and, in so doing, to bind such Party thereto. This Agreement\ncontains the entire agreement between the Parties with respect to the Opportunity and\nsupersedes all prior written and oral agreements between the Parties regarding the\nOpportunity. Recipient shall not have any obligation, express or implied by law, with\nrespect to trade secret or proprietary information of Discloser disclosed under this\nAgreement except as set forth herein. If a court or other body of competent jurisdiction\nfinds, or the Parties mutually believe, any provision of this Agreement, or portion\nthereof, to be invalid or unenforceable, such provision will be enforced to the\nmaximum extent permissible so as to effect the intent of the Parties, and the remainder\nof this Agreement will continue in full force and effect. No provision of this\nAgreement may be waived except by a writing executed by the Party against whom the\nwaiver is to be effective. A Party’s failure to enforce any provision of this Agreement\nshall neither be construed as a waiver of the provision nor prevent the Party from\nenforcing any other provision of this Agreement. No provision of this Agreement may\nbe amended or otherwise modified except by a writing signed by the Parties to this\nAgreement. The Parties may execute this Agreement in counterparts, each of which is\ndeemed an original, but all of which together constitute one and the same agreement.\nThis Agreement may be delivered by facsimile transmission, and facsimile copies of\nexecuted signature pages shall be binding as originals.\n13. DISPUTES\nAll disputes arising out of this Agreement will be subject to the exclusive\njurisdiction and venue of the state courts located in Santa Clara County, California and\nthe federal courts located in the Northern District of California and each Party hereby\nconsents to the personal jurisdiction thereof. 715f780df436bd9bf4cd8d0883087bf5.pdf effective_date jurisdiction party term EX-99.D2 10 0010.txt MUTUAL NON-DISCLOSURE AGREEMENT EXHIBIT (d)(2) MUTUAL NON-\nDISCLOSURE AGREEMENT THIS AGREEMENT is entered into and made effective as of February 10, 2000, by and\nbetween New England Business Service, Inc. ("NEBS") and Premium Wear, Inc. ("Premium Wear"). This Agreement\nprovides for the protection from unauthorized disclosure or use of Confidential Information (as defined below) that may\nbe furnished by one of the parties hereto to the other party and that may be used by the receiving party solely for the\npurpose of evaluating or engaging in a business relationship between the disclosing party and the receiving party. 1.\n"Confidential Information" means non-public information relating to the disclosing party's business that the disclosing\nparty designates as being confidential or proprietary or which, under the circumstances surrounding disclosure, ought to\nbe treated as confidential. "Confidential Information" includes, without limitation, ideas, concepts, designs,\nspecifications, drawings, blueprints, tracings, models, samples, data, computer programs, marketing plans and strategies,\nbusiness strategies, customer names, mailing lists, prices, rates, costs, information received from others that the\ndisclosing party is obligated to treat as confidential, and other technical, financial or business information. Confidential\nInformation may be furnished in any tangible or intangible form, including written or printed documents, visual\ndemonstrations or inspections, computer disks or tapes, other electronic media and oral communications. The receiving\nparty's obligations hereunder will not apply, or will cease to apply, to that Confidential Information which the receiving\nparty can establish (i) is or hereafter becomes generally known or available to the public or interested persons through no\nbreach of this Agreement by the receiving party; (ii) is rightfully known to the receiving party without restriction on\ndisclosure at the time of its receipt from the disclosing party; (iii) is rightfully furnished to the receiving party by a third\nparty without breach of an obligation of confidentiality; (iv) is disclosed to a third party by the disclosing party without\nsimilar restrictions on such third party's rights; (v) is independently developed by the receiving party without use of or\nreference to the Confidential Information; (vi) is required to be disclosed pursuant to the order of a court, administrative\nagency or other governmental body (provided that the receiving party shall give the disclosing party reasonable notice\nprior to such disclosure and shall comply with any applicable protective order or equivalent); or (vii) is approved for\nrelease by written authorization of the disclosing party. 2. Obligations of Receiving Party. The receiving party will\nprotect Confidential Information by using at least the same degree of care, but no less than a reasonable degree of care,\nto prevent the unauthorized disclosure of such Confidential Information as the receiving party uses to protect its own\nconfidential or proprietary information. The receiving party will neither disclose nor copy Confidential Disclosure\nexcept as necessary for its employees, agents or representatives with a need to know, provided that any such employee,\nagent or representative shall have agreed in writing, as a condition to his or her employment or engagement or in order to\nobtain Confidential Information, to be bound by non-disclosure and non-use obligations substantially similar to this\nAgreement. Any copies which are made will be identified as belonging to the disclosing party and shall be reproduced\nwith the disclosing party's proprietary rights notices in the same manner in which such notices appear in the original\ncopy provided by the disclosing party. The receiving party will not use the Confidential Information for any purpose\nexcept to evaluate a business relationship with the disclosing party or otherwise in pursuance of such a relationship.\nNothing in this Agreement will be construed to limit the receiving party's right to independently develop information\nsimilar to the Confidential Information or to compete with the disclosing party so long as the receiving party does not\nviolate its obligations hereunder regarding the non-disclosure and use of the Confidential Information. 3. Ownership of\nConfidential Information. All Confidential Information shall remain the property of the disclosing party. By disclosing\ninformation to the receiving party, the disclosing party does not grant any express or implied right to the receiving party\nto or under any of the disclosing party's patents, copyrights, trademarks or trade secret information. The receiving party\nwill return all originals, copies, reproductions and summaries of Confidential Information immediately upon the\ndisclosing party's request or, at the disclosing party's option, destroy the same, and will deliver to the disclosing party,\nupon its request, a certificate of a duly authorized officer certifying as to the foregoing. 4. Non-Disclosure of\nDiscussions. The parties agree not to disclose the existence of this Agreement and the fact that they are engaged in\ndiscussions unless required to do so by applicable securities laws as reasonably determined by their respective legal\ncounsel. If such disclosure is necessary, the parties agree to notify each other as soon as possible in advance of such\ndisclosure and agree to provide a copy of such disclosure to the other party. 5. Standstill. NEBS agrees not to buy\nPremium Wear's common shares without the written consent of the Board of Directors of Premium Wear prior to March\n1, 2002. 6. Remedies. The receiving party acknowledges that money damages would not be a sufficient remedy for any\nbreach of this Agreement, and the disclosing party will be entitled to specific performance and injunctive relief as\nremedies for any such breach. Such remedies will not be deemed to be the exclusive remedies for a breach of this\nAgreement but will be in addition to all other remedies available at law or equity to the disclosing party. 7. No Warranty.\nTHE DISCLOSING PARTY MAKES NO REPRESENTATION, WARRANTY, ASSURANCE, GUARANTY OR\nINDUCEMENT WHATSOEVER TO THE RECEIVING PARTY WITH RESPECT TO THE QUALITY OF THE\nINFORMATION FURNISHED BY THE DISCLOSING PARTY, NON-INFRINGEMENT OF ANY RIGHTS OF\nTHIRD PARTIES, OR ANY OTHER MATTER OF ANY NATURE WHATSOEVER. THE DISCLOSING PARTY\nACCEPTS NO RESPONSIBILITY FOR ANY EXPENSES, LOSSES OR ACTIONS INCURRED OR UNDERTAKEN\nBY THE RECEIVING PARTY AS A RESULT OF RECEIPT OF ANY INFORMATION FROM THE DISCLOSING\nPARTY. This Agreement does not require any party to furnish any information to another party. It is further understood\nthat neither party has any obligation under or by virtue of this Agreement to enter into any type of business relationship\nwith the other party. 8. Term. The obligations of each receiving party hereunder with respect to the non-disclosure and\nuse of the disclosing party's Confidential Information shall survive until such time as all such Confidential Information\ndisclosed hereunder becomes publicly known and made generally available through no action or inaction of the receiving\nparty. 9. General. This Agreement constitutes the entire agreement between the parties with respect to the subject matter\nhereof and supersedes any prior or contemporaneous agreements or understandings, written or oral, concerning the\nsubject matter hereof. This Agreement may be amended, modified or revoked only by a written instrument executed by\nall parties hereto. Failure to enforce any provision of this Agreement shall not constitute a waiver of any term hereof, and\nno waiver of a provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision\non another occasion. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their\nrespective heirs, legal representatives, successors and assigns. This Agreement shall be governed by and construed in\naccordance with the laws of the State of Minnesota. Each party consents to personal jurisdiction in any action brought in\nany court, federal or state, of competent jurisdiction within the State of Minnesota. If any provision of this Agreement\nshall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall\nremain in full force and effect. PREMIUM WEAR, INC. NEW ENGLAND BUSINESS SERVICE, INC. 5500 Feltl\nRoad 500 Main Street Minnetonka, MN 55343-7902 Groton, MA 01471 By: /s/ Thomas D. Gleason By: /s/ Daniel M.\nJunius --------------------- -------------------- (Signature of Authorized (Signature of Authorized Representative)\nRepresentative) Name: Thomas D. Gleason Name: Daniel M. Junius ------------------ ------------------ (Print) (Print) Title:\nChairman Title: Senior Vice President ------------------ and CFO --------------------- EX-99.D2 10 0010.txt MUTUAL NON-DISCLOSURE AGREEMENT EXHIBIT (d)(2) MUTUAL NON-\nDISCLOSURE AGREEMENT THIS AGREEMENT is entered into and made effective as of February 10, 2000, by and\nbetween New England Business Service, Inc. ("NEBS") and Premium Wear, Inc. ("Premium Wear"). This Agreement\nprovides for the protection from unauthorized disclosure or use of Confidential Information (as defined below) that may\nbe furnished by one of the parties hereto to the other party and that may be used by the receiving party solely for the\npurpose of evaluating or engaging in a business relationship between the disclosing party and the receiving party. 1.\n"Confidential Information" means non-public information relating to the disclosing party's business that the disclosing\nparty designates as being confidential or proprietary or which, under the circumstances surrounding disclosure, ought to\nbe treated as confidential. "Confidential Information" includes, without limitation, ideas, concepts, designs,\nspecifications, drawings, blueprints, tracings, models, samples, data, computer programs, marketing plans and strategies,\nbusiness strategies, customer names, mailing lists, prices, rates, costs, information received from others that the\ndisclosing party is obligated to treat as confidential, and other technical, financial or business information. Confidential\nInformation may be furnished in any tangible or intangible form, including written or printed documents, visual\ndemonstrations or inspections, computer disks or tapes, other electronic media and oral communications. The receiving\nparty's obligations hereunder will not apply, or will cease to apply, to that Confidential Information which the receiving\nparty can establish (i) is or hereafter becomes generally known or available to the public or interested persons through no\nbreach of this Agreement by the receiving party; (ii) is rightfully known to the receiving party without restriction on\ndisclosure at the time of its receipt from the disclosing party; (iii) is rightfully furnished to the receiving party by a third\nparty without breach of an obligation of confidentiality; (iv) is disclosed to a third party by the disclosing party without\nsimilar restrictions on such third party's rights; (v) is independently developed by the receiving party without use of or\nreference to the Confidential Information; (vi) is required to be disclosed pursuant to the order of a court, administrative\nagency or other governmental body (provided that the receiving party shall give the disclosing party reasonable notice\nprior to such disclosure and shall comply with any applicable protective order or equivalent); or (vii) is approved for\nrelease by written authorization of the disclosing party. 2. Obligations of Receiving Party. The receiving party will\nprotect Confidential Information by using at least the same degree of care, but no less than a reasonable degree of care,\nto prevent the unauthorized disclosure of such Confidential Information as the receiving party uses to protect its own\nconfidential or proprietary information. The receiving party will neither disclose nor copy Confidential Disclosure\nexcept as necessary for its employees, agents or representatives with a need to know, provided that any such employee,\nagent or representative shall have agreed in writing, as a condition to his or her employment or engagement or in order to\nobtain Confidential Information, to be bound by non-disclosure and non-use obligations substantially similar to this\nAgreement. Any copies which are made will be identified as belonging to the disclosing party and shall be reproduced\nwith the disclosing party's proprietary rights notices in the same manner in which such notices appear in the original\ncopy provided by the disclosing party. The receiving party will not use the Confidential Information for any purpose\nexcept to evaluate a business relationship with the disclosing party or otherwise in pursuance of such a relationship.\nNothing in this Agreement will be construed to limit the receiving party's right to independently develop information\nsimilar to the Confidential Information or to compete with the disclosing party so long as the receiving party does not\nviolate its obligations hereunder regarding the non-disclosure and use of the Confidential Information. 3. Ownership of\nConfidential Information. All Confidential Information shall remain the property of the disclosing party. By disclosing\ninformation to the receiving party, the disclosing party does not grant any express or implied right to the receiving party\nto or under any of the disclosing party's patents, copyrights, trademarks or trade secret information. The receiving party\nwill return all originals, copies, reproductions and summaries of Confidential Information immediately upon the\ndisclosing party's request or, at the disclosing party's option, destroy the same, and will deliver to the disclosing party,\nupon its request, a certificate of a duly authorized officer certifying as to the foregoing. 4. Non-Disclosure of\nDiscussions. The parties agree not to disclose the existence of this Agreement and the fact that they are engaged in\ndiscussions unless required to do so by applicable securities laws as reasonably determined by their respective legal\ncounsel. If such disclosure is necessary, the parties agree to notify each other as soon as possible in advance of such\ndisclosure and agree to provide a copy of such disclosure to the other party. 5. Standstill. NEBS agrees not to buy\nPremium Wear's common shares without the written consent of the Board of Directors of Premium Wear prior to March\n1, 2002. 6. Remedies. The receiving party acknowledges that money damages would not be a sufficient remedy for any\nbreach of this Agreement, and the disclosing party will be entitled to specific performance and injunctive relief as\nremedies for any such breach. Such remedies will not be deemed to be the exclusive remedies for a breach of this\nAgreement but will be in addition to all other remedies available at law or equity to the disclosing party. 7. No Warranty.\nTHE DISCLOSING PARTY MAKES NO REPRESENTATION, WARRANTY, ASSURANCE, GUARANTY OR\nINDUCEMENT WHATSOEVER TO THE RECEIVING PARTY WITH RESPECT TO THE QUALITY OF THE\nINFORMATION FURNISHED BY THE DISCLOSING PARTY, NON-INFRINGEMENT OF ANY RIGHTS OF\nTHIRD PARTIES, OR ANY OTHER MATTER OF ANY NATURE WHATSOEVER. THE DISCLOSING PARTY\nACCEPTS NO RESPONSIBILITY FOR ANY EXPENSES, LOSSES OR ACTIONS INCURRED OR UNDERTAKEN\nBY THE RECEIVING PARTY AS ARESULT OF RECEIPT OF ANY INFORMATION FROM THE DISCLOSING\nPARTY. This Agreement does not require any party to furnish any information to another party. It is further understood\nthat neither party has any obligation under or by virtue of this Agreement to enter into any type of business relationship\nwith the other party. 8. Term. The obligations of each receiving party hereunder with respect to the non-disclosure and\nuse of the disclosing party's Confidential Information shall survive until such time as all such Confidential Information\ndisclosed hereunder becomes publicly known and made generally available through no action or inaction of the receiving\nparty. 9. General. This Agreement constitutes the entire agreement between the parties with respect to the subject matter\nhereof and supersedes any prior or contemporaneous agreements or understandings, written or oral, concerning the\nsubject matter hereof. This Agreement may be amended, modified or revoked only by a written instrument executed by\nall parties hereto. Failure to enforce any provision of this Agreement shall not constitute a waiver of any term hereof, and\nno waiver of a provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision\non another occasion. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their\nrespective heirs, legal representatives, successors and assigns. This Agreement shall be governed by and construed in\naccordance with the laws of the State of Minnesota. Each party consents to personal jurisdiction in any action brought in\nany court, federal or state, of competent jurisdiction within the State of Minnesota. If any provision of this Agreement\nshall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall\nremain in full force and effect. PREMIUM WEAR, INC. NEW ENGLAND BUSINESS SERVICE, INC. 5500 Feltl\nRoad 500 Main Street Minnetonka, MN 55343-7902 Groton, MA 01471 By: /s/ Thomas D. Gleason By: /s/ Daniel M.\nJunius -----------mmm o (Signature of Authorized (Signature of Authorized Representative)\nRepresentative) Name: Thomas D. Gleason Name: Daniel M. Junius --------========= =mmemmmoeeemeee- (Print) (Print) Title:\nChairman Title: Senior Vice President ------------------ and CFO --------=—-=mmmeeeme EX-99.D2 10 0010.tx MUTUAL NON-DISCLOSURE AGREEMENT EXHIBIT (d)(2) MUTUAL NON-\nDISCLOSURE AGREEMENT THIS AGREEMENT is entered into and made effective as of February 10, 2000,\nby\nand\nbetween New England Business Service, Inc. ("NEBS") and Premium Wear, Inc. ("Premium Wear") This Agreement\nprovides for the protection from unauthorized disclosure or use of Confidential Information (as defined below) that may\nbe furnished by one of the parties hereto to the other party and that may be used by the receiving party solely for the\npurpose of evaluating or engaging in a business relationship between the disclosing party and the receiving party.\n1.\n"Confidential Information" means non-public information relating to the disclosing party's business that the disclosing\nparty designates as being confidential or proprietary or which, under the circumstances surrounding disclosure, ought to\nbe treated as confidential. "Confidential Information" includes, without limitation, ideas, concepts, designs,\nspecifications, drawings, blueprints, tracings, models, samples, data, computer programs, marketing plans and strategies,\nbusiness strategies, customer names, mailing lists, prices, rates, costs, information received from others that the\ndisclosing party is obligated to treat as confidential, and other technical, financial or business information. Confidential\nInformation\nmay\nbe\nfurnished\nin\nany\ntangible\nor\nintangible\nform,\nincluding\nwritten\nor\nprinted\ndocuments,\nvisual\ndemonstrations or inspections, computer disks or tapes, other electronic media and oral communications. The receiving\nparty's obligations hereunder will not apply, or will cease to apply, to that Confidential Information which the receiving\nparty can establish (i) is or hereafter becomes generally known or available to the public or interested persons through no\nbreach of this Agreement by the receiving party; (ii) is rightfully known to the receiving party without restriction on\ndisclosure at the time of its receipt from the disclosing party; (iii) is rightfully furnished to the receiving party by a third\nparty without breach of an obligation of confidentiality; (iv) is disclosed to a third party by the disclosing party without\nsimilar restrictions on such third party's rights; (v) is independently developed by the receiving party without use of or\nreference to the Confidential Information; (vi) is required to be disclosed pursuant to the order of a court, administrative\nagency or other governmental body (provided that the receiving party shall give the disclosing party reasonable notice\nprior to such disclosure and shall comply with any applicable protective order or equivalent); or (vii) is approved for\nrelease by written authorization of the disclosing party. 2. Obligations of Receiving Party. The receiving party will\nprotect Confidential Information by using at least the same degree of care, but no less than a reasonable degree of care,\nto prevent the unauthorized disclosure of such Confidential Information as the receiving party uses to protect its own\nconfidential or proprietary information. The receiving party will neither disclose nor copy Confidential Disclosure\nexcept as necessary for its employees, agents or representatives with a need to know, provided that any such employee,\nagent or representative shall have agreed in writing, as a condition to his or her employment or engagement or in order\nto\nobtain Confidential Information, to be bound by non-disclosure and non-use obligations substantially similar to this\nAgreement. Any copies which are made will be identified as belonging to the disclosing party and shall be\nreproduced\nwith the disclosing party's proprietary rights notices in the same manner in which such notices appear in the original\ncopy provided by the disclosing party. The receiving party will not use the Confidential Information for any purpose\nexcept to evaluate a business relationship with the disclosing party or otherwise in pursuance of such a relationship.\nNothing in this Agreement will be construed to limit the receiving party's right to independently develop information\nsimilar\nto\nthe Confidential Information or to compete with the disclosing party so long as the receiving party does\nnot\nviolate its obligations hereunder regarding the non-disclosure and use of the Confidential Information. 3. Ownership\nof\nConfidential Information. All Confidential Information shall remain the property of the disclosing party. By disclosing\ninformation to the receiving party, the disclosing party does not grant any express or implied right to the receiving party\nto or under any of the disclosing party's patents, copyrights, trademarks or trade secret information. The receiving party\nwill return all originals, copies, reproductions and summaries of Confidential Information immediately upon the\ndisclosing party's request or, at the disclosing party's option, destroy the same, and will deliver to the disclosing party,\nupon its request, a certificate of a duly authorized officer certifying as to the foregoing. 4. Non-Disclosure of\nDiscussions. The parties agree not to disclose the existence of this Agreement and the fact that they are engaged\nin\ndiscussions unless required to do so by applicable securities laws as reasonably determined by their respective legal\ncounsel. If such disclosure is necessary, the parties agree to notify each other as soon as possible in advance of such\ndisclosure and agree to provide a copy of such disclosure to the other party 5. Standstill. NEBS agrees not to buy\nPremium Wear's common shares without the written consent of the Board of Directors of Premium Wear prior to March\n1,\n2002.\n6.\nRemedies.\nThe\nreceiving\nparty\nacknowledges\nthat\nmoney\ndamages\nwould\nnot\nbe\na\nsufficient\nremedy\nfor\nany\nbreach of this Agreement, and the disclosing party will be entitled to specific performance and injunctive relief as\nremedies for any such breach. Such remedies will not be deemed to be the exclusive remedies for a breach of this\nAgreement but will be in addition to all other remedies available at law or equity to the disclosing party. 7. No Warranty.\nTHE DISCLOSING PARTY MAKES NO REPRESENTATION WARRANTY, ASSURANCE, GUARANTY OR\nINDUCEMENT WHATSOEVER TO THE RECEIVING PARTY WITH RESPECT TO THE QUALITY OF THE\nINFORMATION FURNISHED BY THE DISCLOSING PARTY, NON-INFRINGEMENT OF ANY RIGHTS\nOF\nTHIRD PARTIES, OR ANY OTHER MATTER OF ANY NATURE WHATSOEVER THE DISCLOSING PARTY\nACCEPTS NO RESPONSIBILITY FOR ANY EXPENSES, LOSSES OR ACTIONS INCURRED OR UNDERTAKEN\nBY THE RECEIVING PARTY AS A RESULT OF RECEIPT OF ANY INFORMATION FROM THE DISCLOSING\nPARTY. This Agreement does not require any party to furnish any information to another party. It is further understood\nthat neither party has any obligation under or by virtue of this Agreement to enter into any type of business relationship\nwith the other party. 8. Term. The obligations of each receiving party hereunder with respect to the non-disclosure\nand\nuse of the disclosing party's Confidential Information shall survive until such time as all such Confidential Information\ndisclosed hereunder becomes publicly known and made generally available through no action or inaction of the receiving\nparty. 9. General. This Agreement constitutes the entire agreement between the parties with respect to the subject matter\nhereof and supersedes any prior or contemporaneous agreements or understandings, written or oral, concerning the\nsubject matter hereof. This Agreement may be amended, modified or revoked only by a written instrument executed by\nall parties hereto. Failure to enforce any provision of this Agreement shall not constitute a waiver of any term hereof, and\nno waiver of a provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision\non another occasion. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their\nrespective heirs, legal representatives, successors and assigns. This Agreement shall be governed by and construed in\naccordance with the laws of the State of Minnesota. Each party consents to personal jurisdiction in any action brought in\nany court, federal or state, of competent jurisdiction within the State of Minnesota. If any provision of this Agreement\nshall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall\nremain in full force and effect. PREMIUM WEAR, INC. NEW ENGLAND BUSINESS SERVICE, INC. 5500\nFeltl\nRoad 500 Main Street Minnetonka, MN 55343-7902 Groton, MA 01471 By: /s/ Thomas D. Gleason By: /s/ Daniel M.\nJunius\n(Signature of Authorized (Signature of Authorized Representative)\nRepresentative) Name: Thomas D. Gleason Name: Daniel M. Junius\n(Print) (Print) Title:\nChairman Title: Senior Vice President\nand CFO EX-99.D2 10 0010.txt MUTUAL NON-DISCLOSURE AGREEMENT EXHIBIT (d)(2) MUTUAL NON-\nDISCLOSURE AGREEMENT THIS AGREEMENT is entered into and made effective as of February 10, 2000, by and\nbetween New England Business Service, Inc. ("NEBS") and Premium Wear, Inc. ("Premium Wear"). This Agreement\nprovides for the protection from unauthorized disclosure or use of Confidential Information (as defined below) that may\nbe furnished by one of the parties hereto to the other party and that may be used by the receiving party solely for the\npurpose of evaluating or engaging in a business relationship between the disclosing party and the receiving party. 1.\n"Confidential Information" means non-public information relating to the disclosing party's business that the disclosing\nparty designates as being confidential or proprietary or which, under the circumstances surrounding disclosure, ought to\nbe treated as confidential. "Confidential Information" includes, without limitation, ideas, concepts, designs,\nspecifications, drawings, blueprints, tracings, models, samples, data, computer programs, marketing plans and strategies,\nbusiness strategies, customer names, mailing lists, prices, rates, costs, information received from others that the\ndisclosing party is obligated to treat as confidential, and other technical, financial or business information. Confidential\nInformation may be furnished in any tangible or intangible form, including written or printed documents, visual\ndemonstrations or inspections, computer disks or tapes, other electronic media and oral communications. The receiving\nparty's obligations hereunder will not apply, or will cease to apply, to that Confidential Information which the receiving\nparty can establish (i) is or hereafter becomes generally known or available to the public or interested persons through no\nbreach of this Agreement by the receiving party; (ii) is rightfully known to the receiving party without restriction on\ndisclosure at the time of its receipt from the disclosing party; (iii) is rightfully furnished to the receiving party by a third\nparty without breach of an obligation of confidentiality; (iv) is disclosed to a third party by the disclosing party without\nsimilar restrictions on such third party's rights; (v) is independently developed by the receiving party without use of or\nreference to the Confidential Information; (vi) is required to be disclosed pursuant to the order of a court, administrative\nagency or other governmental body (provided that the receiving party shall give the disclosing party reasonable notice\nprior to such disclosure and shall comply with any applicable protective order or equivalent); or (vii) is approved for\nrelease by written authorization of the disclosing party. 2. Obligations of Receiving Party. The receiving party will\nprotect Confidential Information by using at least the same degree of care, but no less than a reasonable degree of care,\nto prevent the unauthorized disclosure of such Confidential Information as the receiving party uses to protect its own\nconfidential or proprietary information. The receiving party will neither disclose nor copy Confidential Disclosure\nexcept as necessary for its employees, agents or representatives with a need to know, provided that any such employee,\nagent or representative shall have agreed in writing, as a condition to his or her employment or engagement or in order to\nobtain Confidential Information, to be bound by non-disclosure and non-use obligations substantially similar to this\nAgreement. Any copies which are made will be identified as belonging to the disclosing party and shall be reproduced\nwith the disclosing party's proprietary rights notices in the same manner in which such notices appear in the original\ncopy provided by the disclosing party. The receiving party will not use the Confidential Information for any purpose\nexcept to evaluate a business relationship with the disclosing party or otherwise in pursuance of such a relationship.\nNothing in this Agreement will be construed to limit the receiving party's right to independently develop information\nsimilar to the Confidential Information or to compete with the disclosing party so long as the receiving party does not\nviolate its obligations hereunder regarding the non-disclosure and use of the Confidential Information. 3. Ownership of\nConfidential Information. All Confidential Information shall remain the property of the disclosing party. By disclosing\ninformation to the receiving party, the disclosing party does not grant any express or implied right to the receiving party\nto or under any of the disclosing party's patents, copyrights, trademarks or trade secret information. The receiving party\nwill return all originals, copies, reproductions and summaries of Confidential Information immediately upon the\ndisclosing party's request or, at the disclosing party's option, destroy the same, and will deliver to the disclosing party,\nupon its request, a certificate of a duly authorized officer certifying as to the foregoing. 4. Non-Disclosure of\nDiscussions. The parties agree not to disclose the existence of this Agreement and the fact that they are engaged in\ndiscussions unless required to do so by applicable securities laws as reasonably determined by their respective legal\ncounsel. If such disclosure is necessary, the parties agree to notify each other as soon as possible in advance of such\ndisclosure and agree to provide a copy of such disclosure to the other party. 5. Standstill. NEBS agrees not to buy\nPremium Wear's common shares without the written consent of the Board of Directors of Premium Wear prior to March\n1, 2002. 6. Remedies. The receiving party acknowledges that money damages would not be a sufficient remedy for any\nbreach of this Agreement, and the disclosing party will be entitled to specific performance and injunctive relief as\nremedies for any such breach. Such remedies will not be deemed to be the exclusive remedies for a breach of this\nAgreement but will be in addition to all other remedies available at law or equity to the disclosing party. 7. No Warranty.\nTHE DISCLOSING PARTY MAKES NO REPRESENTATION, WARRANTY, ASSURANCE, GUARANTY OR\nINDUCEMENT WHATSOEVER TO THE RECEIVING PARTY WITH RESPECT TO THE QUALITY OF THE\nINFORMATION FURNISHED BY THE DISCLOSING PARTY, NON-INFRINGEMENT OF ANY RIGHTS OF\nTHIRD PARTIES, OR ANY OTHER MATTER OF ANY NATURE WHATSOEVER. THE DISCLOSING PARTY\nACCEPTS NO RESPONSIBILITY FOR ANY EXPENSES, LOSSES OR ACTIONS INCURRED OR UNDERTAKEN\nBY THE RECEIVING PARTY AS A RESULT OF RECEIPT OF ANY INFORMATION FROM THE DISCLOSING\nPARTY. This Agreement does not require any party to furnish any information to another party. It is further understood\nthat neither party has any obligation under or by virtue of this Agreement to enter into any type of business relationship\nwith the other party. 8. Term. The obligations of each receiving party hereunder with respect to the non-disclosure and\nuse of the disclosing party's Confidential Information shall survive until such time as all such Confidential Information\ndisclosed hereunder becomes publicly known and made generally available through no action or inaction of the receiving\nparty. 9. General. This Agreement constitutes the entire agreement between the parties with respect to the subject matter\nhereof and supersedes any prior or contemporaneous agreements or understandings, written or oral, concerning the\nsubject matter hereof. This Agreement may be amended, modified or revoked only by a written instrument executed by\nall parties hereto. Failure to enforce any provision of this Agreement shall not constitute a waiver of any term hereof, and\nno waiver of a provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision\non another occasion. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their\nrespective heirs, legal representatives, successors and assigns. This Agreement shall be governed by and construed in\naccordance with the laws of the State of Minnesota. Each party consents to personal jurisdiction in any action brought in\nany court, federal or state, of competent jurisdiction within the State of Minnesota. If any provision of this Agreement\nshall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall\nremain in full force and effect. PREMIUM WEAR, INC. NEW ENGLAND BUSINESS SERVICE, INC. 5500 Feltl\nRoad 500 Main Street Minnetonka, MN 55343-7902 Groton, MA 01471 By: /s/ Thomas D. Gleason By: /s/ Daniel M.\nJunius --------------------- -------------------- (Signature of Authorized (Signature of Authorized Representative)\nRepresentative) Name: Thomas D. Gleason Name: Daniel M. Junius ------------------ ------------------ (Print) (Print) Title:\nChairman Title: Senior Vice President ------------------ and CFO --------------------- 7187b5dc91b45bd1339f75c4fe646186.pdf effective_date jurisdiction party term Appendix A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) dated as of November 6, 2008 is entered in by and between BioLargo. Inc. (the\n“Company”) and Howard Isaacs (the “Consultant”), and sets forth the terms and conditions on which Company is willing to disclose certain material\nnon-public information about the Company.\n1.\nPurpose. In connection with his retention as a consultant to the Company pursuant to an agreement dated as of even date (the\n“Consulting Agreement”), the Company may disclose to the Consultant certain confidential technical and business information which the Company\nrequires the Consultant to treat as confidential.\n2.\nDefinition. “Confidential Information” means any information disclosed to the Consultant by the Company, either directly or\nindirectly in writing, orally or by inspection of tangible objects, including without limitation documents, prototypes and forecasted financial\ninformation. Confidential Information may also include information disclosed to the Company by third parties. Confidential Information shall not,\nhowever, include any information which the Consultant can establish by written documentation (i) was publicly known and made generally available\nin the public domain prior to the time of disclosure to the Consultant by the Company; (ii) becomes publicly known and made generally available\nafter disclosure to the Consultant by the Company through no action or inaction of the Consultant; (iii) is in the possession of the Consultant, without\nconfidentiality restrictions, at the time of disclosure by the Company as shown by the Consultant’s files and records immediately prior to the time of\ndisclosure; (iv) is developed independently of the Confidential Information, as shown by written records prepared contemporaneously with such\nindependent development; or (v) is disclosed pursuant to the requirement of a United States government agency or judicial body, provided that the\nConsultant shall provide reasonable advice notice thereof to enable the Company to seek a protective order or otherwise prevent such disclosure.\n3.\nNon-use and Non-disclosure. The Consultant agrees not to use any Confidential Information for any purpose except within the\nproper scope of his duties pursuant to the Consulting Agreement. The Consultant agrees not to disclose any Confidential Information to third parties,\nexcept to those individuals who, with the prior written consent of the Company, are designated as authorized to receive such Confidential\nInformation in order for the Consultant to perform his duties and obligations under the Consulting Agreement. The Consultant agrees that each third\nparty receiving any Confidential Information will enter into a separate Non-Disclosure Agreement with the Company.\n4.\nMaintenance of Confidentiality. The Consultant agrees that it shall take all commercially reasonable measures to protect the\nsecrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, the Consultant shall take at\nleast those measures that the Consultant takes to protect its own confidential information of a similar nature and shall have its employees or advisors\nwho have access to Confidential Information sign a non-use and non-disclosure agreement in content substantially similar to the provisions hereof,\nprior to any disclosure of Confidential Information to such employees. The Consultant shall immediately notify the Company in the event of any\nunauthorized use or disclosure of any Confidential Information.\n-6-\n5.\nNo Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. COMPANY MAKES NO WARRANTIES,\nEXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.\n6.\nReturn of Materials. All documents and other tangible objects containing or representing Confidential Information which are in\nthe possession of the Consultant shall be and remain the property of the Company and shall be promptly returned to the Company upon request for\nany reason or for no reason.\n7.\nWork Made for Hire.\n(a)\nConsultant and/or designates of the Consultant shall promptly and fully inform the Company of, and disclose to the Company, any\nand all ideas, processes, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, fictitious business names,\ntechnology, patents, know-how, trade secrets, computer programs, original works of authorship, formulae, concepts, themes, inventions, designs,\ncreations, new works, derivative works and discoveries, and all applications, improvements, rights and claims related to any the foregoing, and all\nother intellectual property, proprietary rights and work product, whether or not patentable or copyrightable, registered or unregistered or domestic or\nforeign, and whether or not relating to a published work, that Consultant develops, makes, creates, conceives or reduces to practice during the term\nof the Consulting Agreement that relate to the Company’s business or result from work performed by the Consultant to the Company, whether alone\nor in collaboration with others (collectively, “Invention Ideas”). Consultant hereby assigns to the Company exclusively in perpetuity throughout the\nworld all right, title and interest (choate or inchoate) in (i) the Invention Ideas, (ii) all precursors, portions and work in progress with respect thereto\nand all inventions, works of authorship, mask works, technology, information, know-how, materials and tools relating thereto or to the development,\nsupport or maintenance thereof and (iii) all copyrights, patent rights, trade secret rights, trademark rights, mask works rights, sui generis database\nrights and all other intellectual and industrial property rights of any sort and all business, contract rights, causes of action, and goodwill in,\nincorporated or embodied in, used to develop, or related to any of the foregoing (collectively “Intellectual Property”). All copyrightable Invention\nIdeas are intended by Consultant to be a “work-made-for-hire” by Consultant for Company and owned by Company pursuant to Section 201 (b) of\nTitle 17 of the United States Code.\n(b)\nConsultant shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver\nall such other agreements, certificates, instruments and documents, as the Company may reasonably request in order to obtain patent or copyright\nregistration on all Invention Ideas and Intellectual Property, and shall execute and deliver all documents, instruments and agreements, including the\nformal execution of an assignment of copyright and/or patent application or issued patent, and do all things necessary or requested by the Company,\nin order to enable Company to ultimately and finally obtain and enforce full and exclusive title to all Invention Ideas and Intellectual Property and all\nrights assigned pursuant to this Section 7. Consultant hereby appoints the Company as Consultant’s irrevocable attorney-in-fact for the purpose of\nexecuting and delivering all such documents, instruments and agreements, and performing all such acts, with the same legal force and effect as if\nexecuted and delivered and taken by Consultant.\n(c)\nIf for any reason the foregoing assignment is determined to be unenforceable Consultant grants to Company a perpetual,\nirrevocable, worldwide, royalty-free, exclusive, sub-licensable right and license to exploit and exercise all such Invention Ideas and Intellectual\nProperty.\n(d)\nBecause of the difficulty of establishing when Consultant first conceives of or develops Intellectual Property, proprietary rights or\nwork product or whether such Intellectual Property, proprietary\n-7-\nrights or work product results from access to Company’s confidential and proprietary information or equipment, facilities or data. Consultant agrees\nthat any Intellectual Property, proprietary rights and work product shall be presumed to be an Invention Idea if it is conceived, developed, used, sold,\nexploited or reduced to practice by Consultant or with the aid of Consultant within one year after the normal termination of Consultant’s employment\nwith Company. Consultant can rebut that presumption if Consultant proves that the intellectual property, proprietary rights and work product (i) was\nfirst conceived or developed after termination of Consultant’s employment with and by Company; (ii) was conceived or developed entirely on\nConsultant’s own time without using Company’s equipment, supplies, facilities or confidential and proprietary information; and (iii) did not result\nfrom any work performed by Consultant for or on behalf of Company.\n(e)\nConsultant acknowledges that there is no intellectual property, proprietary right or work product that Consultant desires not to be\ndeemed Invention Ideas or Intellectual Property and thus to exclude from the above provisions of this Agreement. To the best of Consultant’s\nknowledge, there is no other existing contract in conflict with this Agreement or any other contract to assign ideas, processes, trademarks, service\nmarks, inventions, technology, computer programs, original works of authorship, designs, formulas, discoveries, patents or copyrights that is now in\nexistence between Consultant and any other person or entity.\n(f)\nThis Section 7 shall not operate to require Consultant to assign to Company any of Consultant’s rights to inventions, intellectual\nproperties or work products that would not be assignable under the provisions of California Labor Code Section 2870. Consultant represents and\nwarrants to Company that this paragraph constitutes Company’s written notification to Consultant of the provisions of Section 2870 of the California\nLabor Code, and Consultant represents and warrants to Company that Consultant has reviewed Section 2870 of the California Labor Code.\n8.\nUnfair Competition and Protection of Proprietary Information.\n(a)\nConsultant shall not at any time (including after Consultant’s employment with Company terminates) divulge, furnish or make\naccessible to anyone any of Company’s Proprietary Information, or use in any way any of Company’s Proprietary Information other than as\nreasonably required to perform Consultant’s duties under this Agreement. Consultant shall not undertake any other acts or omissions that would\nreduce the value to Company of Company’s Proprietary Information. The restrictions on Consultant’s use of Company’s Proprietary’ Information\nshall not apply to knowledge or information that Consultant can prove is part of the public domain through no fault of Consultant. Consultant agrees\nthat such restrictions are fair and reasonable.\n(b)\nConsultant agrees that Company’s Proprietary Information constitutes a unique and valuable asset of Company that Company\nacquired at great time and expense, and which is secret and confidential and will only be available to or communicated to Consultant in confidence\nin the course of Consultant’s provision of services to Company. Consultant also agrees that any disclosure or other use of Company’s Proprietary\nInformation other than for Company’s sole benefit would be wrongful, would constitute unfair competition and will cause irreparable and\nincalculable harm to Company and to its subsidiaries, affiliates and divisions. In addition to all other remedies Company may have, it shall have the\nright to seek and obtain appropriate injunctive and other equitable relief, including emergency relief, to prevent any violations of this Section 8.\n(c)\nConsultant agrees that Company’s employees constitute a valuable asset of Company. Consultant agrees that Consultant shall not,\nduring the Term and for a period of two years thereafter, directly or indirectly, for Consultant or on behalf of any other person or entity, solicit any\nperson who was an employee of or consultant to Company (at any time while Consultant is performing any services for\n-8-\nCompany, or at any time within twelve months prior to or after such solicitation) for a competing business or otherwise induce or attempt to induce\nany such persons to terminate their employment or relationship with Company or otherwise to disrupt or interfere, or attempt to disrupt or interfere,\nwith Company’s employment or relationships with such persons. Consultant agrees that any such solicitation, inducement or interference would be\nwrongful and would constitute unfair competition, and will cause irreparable and incalculable harm to Company. Further, Consultant shall not\nengage in any other unfair competition with Company. Consultant agrees that such restrictions are fair and reasonable.\n(d)\nConsultant recognizes and agrees that Consultant has no expectation of privacy with respect to Company’s telecommunications,\nnetworking or information processing systems (including stored computer files, e-mail messages and voice messages), and that Consultant’s activity,\nand any files or messages, on or using any of those systems may be monitored at any time without notice.\n(e)\nAs used in this Agreement, “Company’s Proprietary Information” means any knowledge, trade secrets (including “trade secrets” as\ndefined in Section 3426.1 of the California Civil Code), Invention Ideas, proprietary rights or proprietary information, intangible assets or property,\nand other intellectual property (whether or not copyrighted or copyrightable or patented or patentable), information and materials (including\nprocesses, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, technology, patents, patent applications\nand works of authorship), in whatever form, including electronic form, and all goodwill relating or appurtenant thereto, owned or licensed by\nCompany or any of its subsidiaries, affiliates or divisions, or directly or indirectly useful in any aspect of the business of Company or its subsidiaries,\naffiliates or divisions, whether or not marked as confidential or proprietary and whether developed by Consultant, by Company or its subsidiaries,\naffiliates or divisions or by others. Without limiting the foregoing, Company’s Proprietary Information includes (a) the names, locations, practices\nand requirements of any of Company’s customers, prospective customers, vendors, suppliers and personnel and any other persons having a business\nrelationship with Company; (b) confidential or secret development or research work of Company or its subsidiaries, affiliates or divisions, including\ninformation concerning any future or proposed services or products; (c) Company’s accounting, cost, revenue and other financial records and\ndocuments and the contents thereof; (d) Company’s documents, contracts, agreements, correspondence and other similar business records;\n(e) confidential or secret designs, software code, know how, processes, formulae, plans and devices; and (f) any other confidential or secret aspect of\nthe business of Company or its subsidiaries, affiliates or divisions.\n9.\nRemedies.\n(a)\nThe Consultant agrees that any violation or threatened violation of this Agreement will cause irreparable injury to the Company,\nentitling the Company to obtain injunctive relief in addition to all legal remedies at its disposal.\n(b)\nIn addition to all remedies available hereunder, at law or in equity, if Consultant breaches any provision of Section 8 of this\nAgreement, Company shall have the right to invoke any and all remedies provided under the California Uniform Trade Secrets Act (California Civil\nCode §§3426, et seq.) or other statutes or common law remedies of similar effect.\n(c)\nThe remedies provided to Company in this Section 10 are cumulative, and not exclusive, of any other remedies that may be\navailable to Company at law or in equity.\n10.\nNo License. Nothing in this Agreement is intended to grant any rights to the Consultant under any patent, copyright or other\nproprietary rights of the Company, nor shall this Agreement grant the Consultant any rights in or to Confidential Information except as expressly set\nforth herein.\n-9-\n11.\nTerm. This Agreement shall survive the term of the Consulting Agreement and shall continue until such time as all Confidential\nInformation disclosed hereunder becomes publicly known and made generally available through no action or inaction of the Consultant.\n12.\nMiscellaneous. This Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns. This\nAgreement shall be governed by the laws of the State of California, without reference to conflict of laws principles. This document contains the\nentire agreement between the parties with respect to the subject matter hereof. Any failure to enforce any provision of this Agreement shall not\nconstitute a waiver thereof or of any other provision hereof. This Agreement may not be amended, nor any obligation waived, except by a writing\nsigned by both parties hereto.\nIN WITNESS WHEREOF, the parties hereto have executed or caused their duly authorized officers to execute this Agreement as of the date\nfirst above written.\nBIOLARGO, INC. (“COMPANY”)\nBy /s/ Dennis Calvert\nDennis Calvert\nTitle: President and Chief Executive Officer\nHOWARD ISAACS (“CONSULTANT”)\n/s/ Howard Isaacs\n-10- Appendix A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) dated as of November 6, 2008 is entered in by and between BioLargo. Inc. (the\n“Company”) and Howard Isaacs (the “Consultant”), and sets forth the terms and conditions on which Company is willing to disclose certain material\nnon-public information about the Company.\n1. Purpose. In connection with his retention as a consultant to the Company pursuant to an agreement dated as of even date (the\n“Consulting Agreement”), the Company may disclose to the Consultant certain confidential technical and business information which the Company\nrequires the Consultant to treat as confidential.\n2. Definition. “Confidential Information” means any information disclosed to the Consultant by the Company, either directly or\nindirectly in writing, orally or by inspection of tangible objects, including without limitation documents, prototypes and forecasted financial\ninformation. Confidential Information may also include information disclosed to the Company by third parties. Confidential Information shall not,\nhowever, include any information which the Consultant can establish by written documentation (i) was publicly known and made generally available\nin the public domain prior to the time of disclosure to the Consultant by the Company; (ii) becomes publicly known and made generally available\nafter disclosure to the Consultant by the Company through no action or inaction of the Consultant; (iii) is in the possession of the Consultant, without\nconfidentiality restrictions, at the time of disclosure by the Company as shown by the Consultant’s files and records immediately prior to the time of\ndisclosure; (iv) is developed independently of the Confidential Information, as shown by written records prepared contemporaneously with such\nindependent development; or (v) is disclosed pursuant to the requirement of a United States government agency or judicial body, provided that the\nConsultant shall provide reasonable advice notice thereof to enable the Company to seek a protective order or otherwise prevent such disclosure.\n3. Non-use and Non-disclosure. The Consultant agrees not to use any Confidential Information for any purpose except within the\nproper scope of his duties pursuant to the Consulting Agreement. The Consultant agrees not to disclose any Confidential Information to third parties,\nexcept to those individuals who, with the prior written consent of the Company, are designated as authorized to receive such Confidential\nInformation in order for the Consultant to perform his duties and obligations under the Consulting Agreement. The Consultant agrees that each third\nparty receiving any Confidential Information will enter into a separate Non-Disclosure Agreement with the Company.\n4. Maintenance of Confidentiality. The Consultant agrees that it shall take all commercially reasonable measures to protect the\nsecrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, the Consultant shall take at\nleast those measures that the Consultant takes to protect its own confidential information of a similar nature and shall have its employees or advisors\nwho have access to Confidential Information sign a non-use and non-disclosure agreement in content substantially similar to the provisions hereof,\nprior to any disclosure of Confidential Information to such employees. The Consultant shall immediately notify the Company in the event of any\nunauthorized use or disclosure of any Confidential Information.\n-6-\n5. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. COMPANY MAKES NO WARRANTIES,\nEXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.\n6. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which are in\nthe possession of the Consultant shall be and remain the property of the Company and shall be promptly returned to the Company upon request for\nany reason or for no reason.\n7. Work Made for Hire.\n(a) Consultant and/or designates of the Consultant shall promptly and fully inform the Company of, and disclose to the Company, any\nand all ideas, processes, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, fictitious business names,\ntechnology, patents, know-how, trade secrets, computer programs, original works of authorship, formulae, concepts, themes, inventions, designs,\ncreations, new works, derivative works and discoveries, and all applications, improvements, rights and claims related to any the foregoing, and all\nother intellectual property, proprietary rights and work product, whether or not patentable or copyrightable, registered or unregistered or domestic or\nforeign, and whether or not relating to a published work, that Consultant develops, makes, creates, conceives or reduces to practice during the term\nof the Consulting Agreement that relate to the Company’s business or result from work performed by the Consultant to the Company, whether alone\nor in collaboration with others (collectively, “Invention Ideas”). Consultant hereby assigns to the Company exclusively in perpetuity throughout the\nworld all right, title and interest (choate or inchoate) in (i) the Invention Ideas, (ii) all precursors, portions and work in progress with respect thereto\nand all inventions, works of authorship, mask works, technology, information, know-how, materials and tools relating thereto or to the development,\nsupport or maintenance thereof and (iii) all copyrights, patent rights, trade secret rights, trademark rights, mask works rights, sui generis database\nrights and all other intellectual and industrial property rights of any sort and all business, contract rights, causes of action, and goodwill in,\nincorporated or embodied in, used to develop, or related to any of the foregoing (collectively “Intellectual Property”). All copyrightable Invention\nIdeas are intended by Consultant to be a “work-made-for-hire” by Consultant for Company and owned by Company pursuant to Section 201 (b) of\nTitle 17 of the United States Code.\n(b) Consultant shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver\nall such other agreements, certificates, instruments and documents, as the Company may reasonably request in order to obtain patent or copyright\nregistration on all Invention Ideas and Intellectual Property, and shall execute and deliver all documents, instruments and agreements, including the\nformal execution of an assignment of copyright and/or patent application or issued patent, and do all things necessary or requested by the Company,\nin order to enable Company to ultimately and finally obtain and enforce full and exclusive title to all Invention Ideas and Intellectual Property and all\nrights assigned pursuant to this Section 7. Consultant hereby appoints the Company as Consultant’s irrevocable attorney-in-fact for the purpose of\nexecuting and delivering all such documents, instruments and agreements, and performing all such acts, with the same legal force and effect as if\nexecuted and delivered and taken by Consultant.\n(© If for any reason the foregoing assignment is determined to be unenforceable Consultant grants to Company a perpetual,\nirrevocable, worldwide, royalty-free, exclusive, sub-licensable right and license to exploit and exercise all such Invention Ideas and Intellectual\nProperty.\n(d) Because of the difficulty of establishing when Consultant first conceives of or develops Intellectual Property, proprietary rights or\nwork product or whether such Intellectual Property, proprietary\n_7-\nrights or work product results from access to Company’s confidential and proprietary information or equipment, facilities or data. Consultant agrees\nthat any Intellectual Property, proprietary rights and work product shall be presumed to be an Invention Idea if it is conceived, developed, used, sold,\nexploited or reduced to practice by Consultant or with the aid of Consultant within one year after the normal termination of Consultant’s employment\nwith Company. Consultant can rebut that presumption if Consultant proves that the intellectual property, proprietary rights and work product (i) was\nfirst conceived or developed after termination of Consultant’s employment with and by Company; (ii) was conceived or developed entirely on\nConsultant’s own time without using Company’s equipment, supplies, facilities or confidential and proprietary information; and (iii) did not result\nfrom any work performed by Consultant for or on behalf of Company.\n(e) Consultant acknowledges that there is no intellectual property, proprietary right or work product that Consultant desires not to be\ndeemed Invention Ideas or Intellectual Property and thus to exclude from the above provisions of this Agreement. To the best of Consultant’s\nknowledge, there is no other existing contract in conflict with this Agreement or any other contract to assign ideas, processes, trademarks, service\nmarks, inventions, technology, computer programs, original works of authorship, designs, formulas, discoveries, patents or copyrights that is now in\nexistence between Consultant and any other person or entity.\n® This Section 7 shall not operate to require Consultant to assign to Company any of Consultant’s rights to inventions, intellectual\nproperties or work products that would not be assignable under the provisions of California Labor Code Section 2870. Consultant represents and\nwarrants to Company that this paragraph constitutes Company’s written notification to Consultant of the provisions of Section 2870 of the California\nLabor Code, and Consultant represents and warrants to Company that Consultant has reviewed Section 2870 of the California Labor Code.\n8. Unfair Competition and Protection of Proprietary Information.\n \n(a) Consultant shall not at any time (including after Consultant’s employment with Company terminates) divulge, furnish or make\naccessible to anyone any of Company’s Proprietary Information, or use in any way any of Company’s Proprietary Information other than as\nreasonably required to perform Consultant’s duties under this Agreement. Consultant shall not undertake any other acts or omissions that would\nreduce the value to Company of Company’s Proprietary Information. The restrictions on Consultant’s use of Company’s Proprietary’ Information\nshall not apply to knowledge or information that Consultant can prove is part of the public domain through no fault of Consultant. Consultant agrees\nthat such restrictions are fair and reasonable.\n(b) Consultant agrees that Company’s Proprietary Information constitutes a unique and valuable asset of Company that Company\nacquired at great time and expense, and which is secret and confidential and will only be available to or communicated to Consultant in confidence\nin the course of Consultant’s provision of services to Company. Consultant also agrees that any disclosure or other use of Company’s Proprietary\nInformation other than for Company’s sole benefit would be wrongful, would constitute unfair competition and will cause irreparable and\nincalculable harm to Company and to its subsidiaries, affiliates and divisions. In addition to all other remedies Company may have, it shall have the\nright to seek and obtain appropriate injunctive and other equitable relief, including emergency relief, to prevent any violations of this Section 8.\n(o) Consultant agrees that Company’s employees constitute a valuable asset of Company. Consultant agrees that Consultant shall not,\nduring the Term and for a period of two years thereafter, directly or indirectly, for Consultant or on behalf of any other person or entity, solicit any\nperson who was an employee of or consultant to Company (at any time while Consultant is performing any services for\n-8-\nCompany, or at any time within twelve months prior to or after such solicitation) for a competing business or otherwise induce or attempt to induce\nany such persons to terminate their employment or relationship with Company or otherwise to disrupt or interfere, or attempt to disrupt or interfere,\nwith Company’s employment or relationships with such persons. Consultant agrees that any such solicitation, inducement or interference would be\nwrongful and would constitute unfair competition, and will cause irreparable and incalculable harm to Company. Further, Consultant shall not\nengage in any other unfair competition with Company. Consultant agrees that such restrictions are fair and reasonable.\n(d) Consultant recognizes and agrees that Consultant has no expectation of privacy with respect to Company’s telecommunications,\nnetworking or information processing systems (including stored computer files, e-mail messages and voice messages), and that Consultant’s activity,\nand any files or messages, on or using any of those systems may be monitored at any time without notice.\n(e) As used in this Agreement, “Company’s Proprietary Information” means any knowledge, trade secrets (including “trade secrets” as\ndefined in Section 3426.1 of the California Civil Code), Invention Ideas, proprietary rights or proprietary information, intangible assets or property,\nand other intellectual property (whether or not copyrighted or copyrightable or patented or patentable), information and materials (including\nprocesses, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, technology, patents, patent applications\nand works of authorship), in whatever form, including electronic form, and all goodwill relating or appurtenant thereto, owned or licensed by\nCompany or any of its subsidiaries, affiliates or divisions, or directly or indirectly useful in any aspect of the business of Company or its subsidiaries,\naffiliates or divisions, whether or not marked as confidential or proprietary and whether developed by Consultant, by Company or its subsidiaries,\naffiliates or divisions or by others. Without limiting the foregoing, Company’s Proprietary Information includes (a) the names, locations, practices\nand requirements of any of Company’s customers, prospective customers, vendors, suppliers and personnel and any other persons having a business\nrelationship with Company; (b) confidential or secret development or research work of Company or its subsidiaries, affiliates or divisions, including\ninformation concerning any future or proposed services or products; (c) Company’s accounting, cost, revenue and other financial records and\ndocuments and the contents thereof; (d) Company’s documents, contracts, agreements, correspondence and other similar business records;\n(e) confidential or secret designs, software code, know how, processes, formulae, plans and devices; and (f) any other confidential or secret aspect of\nthe business of Company or its subsidiaries, affiliates or divisions.\n9. Remedies.\n(a) The Consultant agrees that any violation or threatened violation of this Agreement will cause irreparable injury to the Company,\nentitling the Company to obtain injunctive relief in addition to all legal remedies at its disposal.\n(b) In addition to all remedies available hereunder, at law or in equity, if Consultant breaches any provision of Section 8 of this\nAgreement, Company shall have the right to invoke any and all remedies provided under the California Uniform Trade Secrets Act (California Civil\nCode §83426, et seq.) or other statutes or common law remedies of similar effect.\n(© The remedies provided to Company in this Section 10 are cumulative, and not exclusive, of any other remedies that may be\navailable to Company at law or in equity.\n10. No License. Nothing in this Agreement is intended to grant any rights to the Consultant under any patent, copyright or other\nproprietary rights of the Company, nor shall this Agreement grant the Consultant any rights in or to Confidential Information except as expressly set\nforth herein.\n-9.\n11. Term. This Agreement shall survive the term of the Consulting Agreement and shall continue until such time as all Confidential\nInformation disclosed hereunder becomes publicly known and made generally available through no action or inaction of the Consultant.\n12. Miscellaneous. This Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns. This\nAgreement shall be governed by the laws of the State of California, without reference to conflict of laws principles. This document contains the\nentire agreement between the parties with respect to the subject matter hereof. Any failure to enforce any provision of this Agreement shall not\nconstitute a waiver thereof or of any other provision hereof. This Agreement may not be amended, nor any obligation waived, except by a writing\nsigned by both parties hereto.\nIN WITNESS WHEREOF, the parties hereto have executed or caused their duly authorized officers to execute this Agreement as of the date\nfirst above written.\nBIOLARGO, INC. (“COMPANY”)\nBy /s/ Dennis Calvert\nDennis Calvert\nTitle: President and Chief Executive Officer\nHOWARD ISAACS (“CONSULTANT?)\n/s/ Howard Isaacs\n-10 - Appendix A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement ("Agreement") dated as of November 6, 2008 is entered in by and between BioLargo. Inc. (the\n"Company") and Howard Isaacs (the "Consultant"), and sets forth the terms and conditions on which Company is willing to disclose certain material\nnon-public information about the Company.\n1.\nPurpose. In connection with his retention as a consultant to the Company pursuant to an agreement dated as of even date (the\n"Consulting Agreement"), the Company may disclose to the Consultant certain confidential technical and business information which the Company\nrequires the Consultant to treat as confidential.\n2.\nDefinition. "Confidential Information" means any information disclosed to the Consultant by the Company, either directly\nor\nindirectly in writing, orally or by inspection of tangible objects, including without limitation documents, prototypes and forecasted financial\ninformation. Confidential Information may also include information disclosed to the Company by third parties. Confidential Information shall not,\nhowever, include any information which the Consultant can establish by written documentation (i) was publicly known and made generally available\nin the public domain prior to the time of disclosure to the Consultant by the Company; (ii) becomes publicly known and made generally available\nafter disclosure to the Consultant by the Company through no action or inaction of the Consultant; (iii) is in the possession of the Consultant, without\nconfidentiality restrictions, at the time of disclosure by the Company as shown by the Consultant's files and records immediately prior to the time of\ndisclosure; (iv) is developed independently of the Confidential Information, as shown by written records prepared contemporaneously with such\nindependent development; or (v) is disclosed pursuant to the requirement of a United States government agency or judicial body, provided that the\nConsultant shall provide reasonable advice notice thereof to enable the Company to seek a protective order or otherwise prevent such disclosure.\n3.\nNon-use and Non-disclosure. The Consultant agrees not to use any Confidential Information for any purpose except within the\nproper scope of his duties pursuant to the Consulting Agreement. The Consultant agrees not to disclose any Confidential Information to third parties,\nexcept to those individuals who, with the prior written consent of the Company, are designated as authorized to receive such Confidential\nInformation in order for the Consultant to perform his duties and obligations under the Consulting Agreement. The Consultant agrees that each third\nparty receiving any Confidential Information will enter into a separate Non-Disclosure Agreement with the Company.\n4.\nMaintenance of Confidentiality.. The Consultant agrees that it shall take all commercially reasonable measures to protect the\nsecrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, the Consultant shall take at\nleast those measures that the Consultant takes to protect its own confidential information of a similar nature and shall have its employees or advisors\nwho have access to Confidential Information sign a non-use and non-disclosure agreement in content substantially similar to the provisions hereof,\nprior to any disclosure of Confidential Information to such employees. The Consultant shall immediately notify the Company in the event of any\nunauthorized use or disclosure of any Confidential Information.\n6\n5. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS". COMPANY MAKES NO WARRANTIES,\nEXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.\n6.\nReturn of Materials. All documents and other tangible objects containing or representing Confidentia Information which are in\nthe possession of the Consultant shall be and remain the property of the Company and shall be promptly returned to the Company upon request for\nany reason or for no reason.\n7.\nWork Made for Hire.\n(a)\nConsultant and/or designates of the Consultant shall promptly and fully inform the Company of, and disclose to the Company, any\nand all ideas, processes, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, fictitious business names,\ntechnology, patents, know-how, trade secrets, computer programs, original works of authorship, formulae, concepts, themes, inventions, designs,\ncreations, new works, derivative works and discoveries, and all applications, improvements, rights and claims related to any the foregoing, and all\nother intellectual property, proprietary rights and work product, whether or not patentable or copyrightable, registered or unregistered or domestic or\nforeign, and whether or not relating to a published work, that Consultant develops, makes, creates, conceives or reduces to practice during the term\nof the Consulting Agreement that relate to the Company's business or result from work performed by the Consultant to the Company, whether alone\nor in collaboration with others (collectively, "Invention Ideas"). Consultant hereby assigns to the Company exclusively in perpetuity throughout the\nworld all right, title and interest (choate or inchoate) in (i) the Invention Ideas, (ii) all precursors, portions and work in progress with respect thereto\nand all inventions, works of authorship, mask works, technology, information, know-how, materials and tools relating thereto or to the development,\nsupport or maintenance thereof and (iii) all copyrights, patent rights, trade secret rights, trademark rights, mask works rights, sui generis database\nrights and all other intellectual and industrial property rights of any sort and all business, contract rights, causes of action, and goodwill in,\nincorporated or embodied in, used to develop, or related to any of the foregoing (collectively "Intellectual Property"). All copyrightable Invention\nIdeas are intended by Consultant to be a "work-made-for-hire" by Consultant for Company and owned by Company pursuant to Section 201 (b) of\nTitle 17 of the United States Code.\n(b)\nConsultant shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver\nall\nsuch other agreements, certificates, instruments and documents, as the Company may reasonably request in order to obtain patent or copyright\nregistration on all Invention Ideas and Intellectual Property, and shall execute and deliver all documents, instruments and agreements, including the\nformal execution of an assignment of copyright and/or patent application or issued patent, and do all things necessary or requested by the Company,\nin order to enable Company to ultimately and finally obtain and enforce full and exclusive title to all Invention Ideas and Intellectual Property and all\nrights assigned pursuant to this Section 7. Consultant hereby appoints the Company as Consultant's irrevocable attorney-in-fact for the purpose of\nexecuting and delivering all such documents, instruments and agreements, and performing all such acts, with the same legal force and effect as if\nexecuted and delivered and taken by Consultant.\n(c)\nIf for any reason the foregoing assignment is determined to be unenforceable Consultant grants to Company a perpetual,\nirrevocable, worldwide, royalty-free, exclusive, sub-licensable right and license to exploit and exercise all such Invention Ideas and Intellectual\nProperty.\n(d)\nBecause of the difficulty of establishing when Consultant first conceives of or develops Intellectual Property, proprietary rights or\nwork product or whether such Intellectual Property, proprietary\n7\nrights or work product results from access to Company's confidential and proprietary information or equipment, facilities or data. Consultant agrees\nthat any Intellectual Property, proprietary rights and work product shall be presumed to be an Invention Idea if it is conceived, developed, used, sold,\nexploited or reduced to practice by Consultant or with the aid of Consultant within one year after the normal termination of Consultant's employment\nwith Company. Consultant can rebut that presumption if Consultant proves that the intellectual property, proprietary rights and work product (i) was\nfirst conceived or developed after termination of Consultant's employment with and by Company; (ii) was conceived or developed entirely on\nConsultant's own time without using Company's equipment, supplies, facilities or confidential and proprietary information; and (iii) did not result\nfrom any work performed by Consultant for or on behalf of Company.\n(e)\nConsultant acknowledges that there is no intellectual property, proprietary right or work product that Consultant desires not to be\ndeemed Invention Ideas or Intellectual Property and thus to exclude from the above provisions of this Agreement. To the best of Consultant's\nknowledge, there is no other existing contract in conflict with this Agreement or any other contract to assign ideas, processes, trademarks, service\nmarks, inventions, technology, computer programs, original works of authorship, designs, formulas, discoveries, patents or copyrights that is now in\nexistence between Consultant and any other person or entity.\n(f)\nThis Section 7 shall not operate to require Consultant to assign to Company any of Consultant's rights to inventions, intellectual\nproperties or work products that would not be assignable under the provisions of California Labor Code Section 2870. Consultant represents and\nwarrants to Company that this paragraph constitutes Company's written notification to Consultant of the provisions of Section 2870 of the California\nLabor Code, and Consultant represents and warrants to Company that Consultant has reviewed Section 2870 of the California Labor Code.\n8.\nUnfair Competition and Protection of Proprietary Information.\n(a)\nConsultant shall not at any time (including after Consultant's employment with Company terminates) divulge, furnish or make\naccessible to anyone any of Company's Proprietary Information, or use in any way any of Company's Proprietary Information other than as\nreasonably required to perform Consultant's duties under this Agreement. Consultant shall not undertake any other acts or omissions that would\nreduce the value to Company of Company's Proprietary Information. The restrictions on Consultant's use of Company's Proprietary' Information\nshall not apply to knowledge or information that Consultant can prove is part of the public domain through no fault of Consultant. Consultant agrees\nthat such restrictions are fair and reasonable.\n(b)\nConsultant agrees that Company's Proprietary Information constitutes a unique and valuable asset of Company that Company\nacquired at great time and expense, and which is secret and confidential and will only be available to or communicated to Consultant in confidence\nin the course of Consultant's provision of services to Company. Consultant also agrees that any disclosure or other use of Company's Proprietary\nInformation other than for Company's sole benefit would be wrongful, would constitute unfair competition and will cause irreparable and\nincalculable harm to Company and to its subsidiaries, affiliates and divisions. In addition to all other remedies Company may have, it shall have the\nright to seek and obtain appropriate injunctive and other equitable relief, including emergency relief, to prevent any violations of this Section 8.\n(c)\nConsultant agrees that Company's employees constitute a valuable asset of Company. Consultant agrees that Consultant shall not,\nduring the Term and for a period of two years thereafter, directly or indirectly, for Consultant or on behalf of any other person or entity, solicit any\nperson who was an employee of or consultant to Company (at any time while Consultant is performing any services for\n8\nCompany, or at any time within twelve months prior to or after such solicitation) for a competing business or otherwise induce or attempt to induce\nany such persons to terminate their employment or relationship with Company or otherwise to disrupt or interfere, or attempt to disrupt or interfere,\nwith Company's employment or relationships with such persons. Consultant agrees that any such solicitation, inducement or interference would be\nwrongful and would constitute unfair competition, and will cause irreparable and incalculable harm to Company. Further, Consultant shall not\nengage in any other unfair competition with Company. Consultant agrees that such restrictions are fair and reasonable.\n(d)\nConsultant recognizes and agrees that Consultant has no expectation of privacy with respect to Company's telecommunications,\nnetworking or information processing systems (including stored computer files, e-mail messages and voice messages), and that Consultant's activity,\nand any files or messages, on or using any of those systems may be monitored at any time without notice.\n(e)\nAs used in this Agreement, "Company's Proprietary Information" means any knowledge, trade secrets (including "trade secretS" as\ndefined in Section 3426.1 of the California Civil Code), Invention Ideas, proprietary rights or proprietary information, intangible assets or property,\nand other intellectual property (whether or not copyrighted or copyrightable or patented or patentable), information and materials (including\nprocesses, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, technology, patents, patent applications\nand works of authorship), in whatever form, including electronic form, and all goodwill relating or appurtenant thereto, owned or licensed by\nCompany or any of its subsidiaries, affiliates or divisions, or directly or indirectly useful in any aspect of the business of Company or its subsidiaries,\naffiliates or divisions, whether or not marked as confidential or proprietary and whether developed by Consultant, by Company or its subsidiaries,\naffiliates or divisions or by others. Without limiting the foregoing, Company's Proprietary Information includes (a) the names, locations, practices\nand requirements of any of Company's customers, prospective customers, vendors, suppliers and personnel and any other persons having a business\nrelationship with Company; (b) confidential or secret development or research work of Company or its subsidiaries, affiliates or divisions, including\ninformation concerning any future or proposed services or products; (c) Company's accounting, cost, revenue and other financial records and\ndocuments and the contents thereof; (d) Company's documents, contracts, agreements, correspondence and other similar business records;\n(e) confidential or secret designs, software code, know how, processes, formulae, plans and devices; and (f) any other confidential or secret aspect\nof\nthe business of Company or its subsidiaries, affiliates or divisions.\n9.\nRemedies.\n(a)\nThe Consultant agrees that any violation or threatened violation of this Agreement will cause irreparable injury to the Company,\nentitling the Company to obtain injunctive relief in addition to all legal remedies at its disposal.\n(b)\nIn addition to all remedies available hereunder, at law or in equity, if Consultant breaches any provision of Section 8 of this\nAgreement, Company shall have the right to invoke any and all remedies provided under the California Uniform Trade Secrets Act (California Civil\nCode 83426, et seq.) or other statutes or common law remedies of similar effect.\n(c)\nThe remedies provided to Company in this Section 10 are cumulative, and not exclusive, of any other remedies that may be\navailable to Company at law or in equity.\n10.\nNo License. Nothing in this Agreement is intended to grant any rights to the Consultant under any patent, copyright or other\nproprietary rights of the Company, nor shall this Agreement grant the Consultant any rights in or to Confidential Information except as expressly set\nforth herein.\n9\n11.\nTerm. This Agreement shall survive the term of the Consulting Agreement and shall continue until such time as all Confidential\nInformation disclosed hereunder becomes publicly known and made generally available through no action or inaction of the Consultant.\n12.\nMiscellaneous. This Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns. This\nAgreement shall be governed by the laws of the State of California, without reference to conflict of laws principles. This document contains the\nentire\nagreement between the parties with respect to the subject matter hereof. Any failure to enforce any provision of this Agreement shall not\nconstitute a waiver thereof or of any other provision hereof. This Agreement may not be amended, nor any obligation waived, except by a writing\nsigned by both parties hereto.\nIN\nWITNESS WHEREOF, the parties hereto have executed or caused their duly authorized officers to execute this Agreement as of the date\nfirst above written.\nBIOLARGO, INC. ("COMPANY")\nBy /s/ Dennis Calvert\nDennis Calvert\nTitle: President and Chief Executive Officer\nHOWARD ISAACS ("CONSULTANT")\n/s/ Howard Isaacs\n- 10 Appendix A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) dated as of November 6, 2008 is entered in by and between BioLargo. Inc. (the\n“Company”) and Howard Isaacs (the “Consultant”), and sets forth the terms and conditions on which Company is willing to disclose certain material\nnon-public information about the Company.\n1.\nPurpose. In connection with his retention as a consultant to the Company pursuant to an agreement dated as of even date (the\n“Consulting Agreement”), the Company may disclose to the Consultant certain confidential technical and business information which the Company\nrequires the Consultant to treat as confidential.\n2.\nDefinition. “Confidential Information” means any information disclosed to the Consultant by the Company, either directly or\nindirectly in writing, orally or by inspection of tangible objects, including without limitation documents, prototypes and forecasted financial\ninformation. Confidential Information may also include information disclosed to the Company by third parties. Confidential Information shall not,\nhowever, include any information which the Consultant can establish by written documentation (i) was publicly known and made generally available\nin the public domain prior to the time of disclosure to the Consultant by the Company; (ii) becomes publicly known and made generally available\nafter disclosure to the Consultant by the Company through no action or inaction of the Consultant; (iii) is in the possession of the Consultant, without\nconfidentiality restrictions, at the time of disclosure by the Company as shown by the Consultant’s files and records immediately prior to the time of\ndisclosure; (iv) is developed independently of the Confidential Information, as shown by written records prepared contemporaneously with such\nindependent development; or (v) is disclosed pursuant to the requirement of a United States government agency or judicial body, provided that the\nConsultant shall provide reasonable advice notice thereof to enable the Company to seek a protective order or otherwise prevent such disclosure.\n3.\nNon-use and Non-disclosure. The Consultant agrees not to use any Confidential Information for any purpose except within the\nproper scope of his duties pursuant to the Consulting Agreement. The Consultant agrees not to disclose any Confidential Information to third parties,\nexcept to those individuals who, with the prior written consent of the Company, are designated as authorized to receive such Confidential\nInformation in order for the Consultant to perform his duties and obligations under the Consulting Agreement. The Consultant agrees that each third\nparty receiving any Confidential Information will enter into a separate Non-Disclosure Agreement with the Company.\n4.\nMaintenance of Confidentiality. The Consultant agrees that it shall take all commercially reasonable measures to protect the\nsecrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, the Consultant shall take at\nleast those measures that the Consultant takes to protect its own confidential information of a similar nature and shall have its employees or advisors\nwho have access to Confidential Information sign a non-use and non-disclosure agreement in content substantially similar to the provisions hereof,\nprior to any disclosure of Confidential Information to such employees. The Consultant shall immediately notify the Company in the event of any\nunauthorized use or disclosure of any Confidential Information.\n-6-\n5.\nNo Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. COMPANY MAKES NO WARRANTIES,\nEXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.\n6.\nReturn of Materials. All documents and other tangible objects containing or representing Confidential Information which are in\nthe possession of the Consultant shall be and remain the property of the Company and shall be promptly returned to the Company upon request for\nany reason or for no reason.\n7.\nWork Made for Hire.\n(a)\nConsultant and/or designates of the Consultant shall promptly and fully inform the Company of, and disclose to the Company, any\nand all ideas, processes, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, fictitious business names,\ntechnology, patents, know-how, trade secrets, computer programs, original works of authorship, formulae, concepts, themes, inventions, designs,\ncreations, new works, derivative works and discoveries, and all applications, improvements, rights and claims related to any the foregoing, and all\nother intellectual property, proprietary rights and work product, whether or not patentable or copyrightable, registered or unregistered or domestic or\nforeign, and whether or not relating to a published work, that Consultant develops, makes, creates, conceives or reduces to practice during the term\nof the Consulting Agreement that relate to the Company’s business or result from work performed by the Consultant to the Company, whether alone\nor in collaboration with others (collectively, “Invention Ideas”). Consultant hereby assigns to the Company exclusively in perpetuity throughout the\nworld all right, title and interest (choate or inchoate) in (i) the Invention Ideas, (ii) all precursors, portions and work in progress with respect thereto\nand all inventions, works of authorship, mask works, technology, information, know-how, materials and tools relating thereto or to the development,\nsupport or maintenance thereof and (iii) all copyrights, patent rights, trade secret rights, trademark rights, mask works rights, sui generis database\nrights and all other intellectual and industrial property rights of any sort and all business, contract rights, causes of action, and goodwill in,\nincorporated or embodied in, used to develop, or related to any of the foregoing (collectively “Intellectual Property”). All copyrightable Invention\nIdeas are intended by Consultant to be a “work-made-for-hire” by Consultant for Company and owned by Company pursuant to Section 201 (b) of\nTitle 17 of the United States Code.\n(b)\nConsultant shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver\nall such other agreements, certificates, instruments and documents, as the Company may reasonably request in order to obtain patent or copyright\nregistration on all Invention Ideas and Intellectual Property, and shall execute and deliver all documents, instruments and agreements, including the\nformal execution of an assignment of copyright and/or patent application or issued patent, and do all things necessary or requested by the Company,\nin order to enable Company to ultimately and finally obtain and enforce full and exclusive title to all Invention Ideas and Intellectual Property and all\nrights assigned pursuant to this Section 7. Consultant hereby appoints the Company as Consultant’s irrevocable attorney-in-fact for the purpose of\nexecuting and delivering all such documents, instruments and agreements, and performing all such acts, with the same legal force and effect as if\nexecuted and delivered and taken by Consultant.\n(c)\nIf for any reason the foregoing assignment is determined to be unenforceable Consultant grants to Company a perpetual,\nirrevocable, worldwide, royalty-free, exclusive, sub-licensable right and license to exploit and exercise all such Invention Ideas and Intellectual\nProperty.\n(d)\nBecause of the difficulty of establishing when Consultant first conceives of or develops Intellectual Property, proprietary rights or\nwork product or whether such Intellectual Property, proprietary\n-7-\nrights or work product results from access to Company’s confidential and proprietary information or equipment, facilities or data. Consultant agrees\nthat any Intellectual Property, proprietary rights and work product shall be presumed to be an Invention Idea if it is conceived, developed, used, sold,\nexploited or reduced to practice by Consultant or with the aid of Consultant within one year after the normal termination of Consultant’s employment\nwith Company. Consultant can rebut that presumption if Consultant proves that the intellectual property, proprietary rights and work product (i) was\nfirst conceived or developed after termination of Consultant’s employment with and by Company; (ii) was conceived or developed entirely on\nConsultant’s own time without using Company’s equipment, supplies, facilities or confidential and proprietary information; and (iii) did not result\nfrom any work performed by Consultant for or on behalf of Company.\n(e)\nConsultant acknowledges that there is no intellectual property, proprietary right or work product that Consultant desires not to be\ndeemed Invention Ideas or Intellectual Property and thus to exclude from the above provisions of this Agreement. To the best of Consultant’s\nknowledge, there is no other existing contract in conflict with this Agreement or any other contract to assign ideas, processes, trademarks, service\nmarks, inventions, technology, computer programs, original works of authorship, designs, formulas, discoveries, patents or copyrights that is now in\nexistence between Consultant and any other person or entity.\n(f)\nThis Section 7 shall not operate to require Consultant to assign to Company any of Consultant’s rights to inventions, intellectual\nproperties or work products that would not be assignable under the provisions of California Labor Code Section 2870. Consultant represents and\nwarrants to Company that this paragraph constitutes Company’s written notification to Consultant of the provisions of Section 2870 of the California\nLabor Code, and Consultant represents and warrants to Company that Consultant has reviewed Section 2870 of the California Labor Code.\n8.\nUnfair Competition and Protection of Proprietary Information.\n(a)\nConsultant shall not at any time (including after Consultant’s employment with Company terminates) divulge, furnish or make\naccessible to anyone any of Company’s Proprietary Information, or use in any way any of Company’s Proprietary Information other than as\nreasonably required to perform Consultant’s duties under this Agreement. Consultant shall not undertake any other acts or omissions that would\nreduce the value to Company of Company’s Proprietary Information. The restrictions on Consultant’s use of Company’s Proprietary’ Information\nshall not apply to knowledge or information that Consultant can prove is part of the public domain through no fault of Consultant. Consultant agrees\nthat such restrictions are fair and reasonable.\n(b)\nConsultant agrees that Company’s Proprietary Information constitutes a unique and valuable asset of Company that Company\nacquired at great time and expense, and which is secret and confidential and will only be available to or communicated to Consultant in confidence\nin the course of Consultant’s provision of services to Company. Consultant also agrees that any disclosure or other use of Company’s Proprietary\nInformation other than for Company’s sole benefit would be wrongful, would constitute unfair competition and will cause irreparable and\nincalculable harm to Company and to its subsidiaries, affiliates and divisions. In addition to all other remedies Company may have, it shall have the\nright to seek and obtain appropriate injunctive and other equitable relief, including emergency relief, to prevent any violations of this Section 8.\n(c)\nConsultant agrees that Company’s employees constitute a valuable asset of Company. Consultant agrees that Consultant shall not,\nduring the Term and for a period of two years thereafter, directly or indirectly, for Consultant or on behalf of any other person or entity, solicit any\nperson who was an employee of or consultant to Company (at any time while Consultant is performing any services for\n-8-\nCompany, or at any time within twelve months prior to or after such solicitation) for a competing business or otherwise induce or attempt to induce\nany such persons to terminate their employment or relationship with Company or otherwise to disrupt or interfere, or attempt to disrupt or interfere,\nwith Company’s employment or relationships with such persons. Consultant agrees that any such solicitation, inducement or interference would be\nwrongful and would constitute unfair competition, and will cause irreparable and incalculable harm to Company. Further, Consultant shall not\nengage in any other unfair competition with Company. Consultant agrees that such restrictions are fair and reasonable.\n(d)\nConsultant recognizes and agrees that Consultant has no expectation of privacy with respect to Company’s telecommunications,\nnetworking or information processing systems (including stored computer files, e-mail messages and voice messages), and that Consultant’s activity,\nand any files or messages, on or using any of those systems may be monitored at any time without notice.\n(e)\nAs used in this Agreement, “Company’s Proprietary Information” means any knowledge, trade secrets (including “trade secrets” as\ndefined in Section 3426.1 of the California Civil Code), Invention Ideas, proprietary rights or proprietary information, intangible assets or property,\nand other intellectual property (whether or not copyrighted or copyrightable or patented or patentable), information and materials (including\nprocesses, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, technology, patents, patent applications\nand works of authorship), in whatever form, including electronic form, and all goodwill relating or appurtenant thereto, owned or licensed by\nCompany or any of its subsidiaries, affiliates or divisions, or directly or indirectly useful in any aspect of the business of Company or its subsidiaries,\naffiliates or divisions, whether or not marked as confidential or proprietary and whether developed by Consultant, by Company or its subsidiaries,\naffiliates or divisions or by others. Without limiting the foregoing, Company’s Proprietary Information includes (a) the names, locations, practices\nand requirements of any of Company’s customers, prospective customers, vendors, suppliers and personnel and any other persons having a business\nrelationship with Company; (b) confidential or secret development or research work of Company or its subsidiaries, affiliates or divisions, including\ninformation concerning any future or proposed services or products; (c) Company’s accounting, cost, revenue and other financial records and\ndocuments and the contents thereof; (d) Company’s documents, contracts, agreements, correspondence and other similar business records;\n(e) confidential or secret designs, software code, know how, processes, formulae, plans and devices; and (f) any other confidential or secret aspect of\nthe business of Company or its subsidiaries, affiliates or divisions.\n9.\nRemedies.\n(a)\nThe Consultant agrees that any violation or threatened violation of this Agreement will cause irreparable injury to the Company,\nentitling the Company to obtain injunctive relief in addition to all legal remedies at its disposal.\n(b)\nIn addition to all remedies available hereunder, at law or in equity, if Consultant breaches any provision of Section 8 of this\nAgreement, Company shall have the right to invoke any and all remedies provided under the California Uniform Trade Secrets Act (California Civil\nCode §§3426, et seq.) or other statutes or common law remedies of similar effect.\n(c)\nThe remedies provided to Company in this Section 10 are cumulative, and not exclusive, of any other remedies that may be\navailable to Company at law or in equity.\n10.\nNo License. Nothing in this Agreement is intended to grant any rights to the Consultant under any patent, copyright or other\nproprietary rights of the Company, nor shall this Agreement grant the Consultant any rights in or to Confidential Information except as expressly set\nforth herein.\n-9-\n11.\nTerm. This Agreement shall survive the term of the Consulting Agreement and shall continue until such time as all Confidential\nInformation disclosed hereunder becomes publicly known and made generally available through no action or inaction of the Consultant.\n12.\nMiscellaneous. This Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns. This\nAgreement shall be governed by the laws of the State of California, without reference to conflict of laws principles. This document contains the\nentire agreement between the parties with respect to the subject matter hereof. Any failure to enforce any provision of this Agreement shall not\nconstitute a waiver thereof or of any other provision hereof. This Agreement may not be amended, nor any obligation waived, except by a writing\nsigned by both parties hereto.\nIN WITNESS WHEREOF, the parties hereto have executed or caused their duly authorized officers to execute this Agreement as of the date\nfirst above written.\nBIOLARGO, INC. (“COMPANY”)\nBy /s/ Dennis Calvert\nDennis Calvert\nTitle: President and Chief Executive Officer\nHOWARD ISAACS (“CONSULTANT”)\n/s/ Howard Isaacs\n-10- 762b493ffbbb2eeaa53b4acb586ba2f8.pdf effective_date jurisdiction party term EX-99.(D)(3) 9 a2179028zex-99 _d3.htm EXHIBIT 99.(D)(3)\nQuickLinks -- Click here to rapidly navigate through this document\nExhibit (d)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis MUTUAL NONDISCLOSURE AGREEMENT (this "Agreement") is made as of May 9, 2007 by and between Opsware Inc., a Delaware\ncorporation (the "Company"), and Hewlett-Packard Company, a Delaware corporation ("HP").\nThe Company and HP are evaluating entering into a potential business transaction (the "Transaction") under which each may disclose certain\ninformation, including Confidential Information (as defined below), to the other. As a condition to such information being furnished to each party, its\nsubsidiaries and other individuals and entities controlled, directly or indirectly, by such party ("Affiliates") and the respective directors, officers,\nemployees, agents, representatives, consultants, accountants, attorneys and advisors of such party and its Affiliates (collectively with such Affiliates,\n"Associates"), each party agrees to treat the other party's Confidential Information in accordance with the provisions of this Agreement, and to take\nor abstain from taking certain other actions, as described in this Agreement. A party disclosing Confidential Information hereunder is referred to\nherein as "the disclosing party" and a party receiving the Confidential Information of a disclosing party hereunder is referred to herein as "the\nreceiving party."\n1. Nondisclosure of Confidential Information.\n"Confidential Information" means any information, technical data or know-how, including, but not limited to, that which relates to research,\nproduct or service plans, business practices, agreement terms, products, services, employees, suppliers, customers, technology or other strategic\npartners, stockholders, markets, software, know-how, developments, inventions, processes, designs, drawings, engineering, hardware configuration\ninformation, marketing, finances, notes, analyses or studies and all tangible and intangible embodiments thereof of any kind whatsoever, whether\nconveyed in writing or orally by the disclosing party or its Associates to the receiving party or its Associates in connection with the evaluation of a\nTransaction. The term "Confidential Information" shall be deemed to include those portions of any notes, analyses, compilations, studies,\ninterpretations, memoranda or other documents (regardless of the form thereof) prepared by the receiving party or its Associates which contain,\nreflect or are based upon, in whole or in part, any information furnished to the receiving party or its Associates pursuant hereto. Notwithstanding the\nforegoing, Confidential Information does not include information, technical data or know-how which: (i) is rightfully in the possession of the\nreceiving party at the time of disclosure as shown by the receiving party's files and records immediately prior to the time of disclosure; (ii) prior to or\nafter the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action of the receiving party in\nviolation of its obligations hereunder; (iii) is obtained by the receiving party from a source other than the disclosing party or any of its Associates,\nwhich source is not known by the receiving party to have any obligation of confidentiality to the disclosing party with respect to such information\n(iv) is approved, in writing, for release by the disclosing party; or (v) the receiving party can document was independently developed by the\nreceiving party without use of or reference to the disclosing party's Confidential Information.\nEach of the parties hereto agrees not to use the Confidential Information disclosed to it by the other party or its Associates for its own use or for\nany purpose except to evaluate the contemplated Transaction. Neither party will disclose any Confidential Information of the other party to third\nparties except those Associates of such party who are required to have the information in order to carry out the evaluation and discussions\nconcerning the contemplated Transaction. The receiving party shall inform its Associates of the confidential nature of the Confidential Information\nand shall instruct them to treat the information confidentially. The receiving party shall be responsible for any breach of this Agreement by its\nAssociates and agrees, at its sole expense, to take all reasonable measures to restrain\n1\nits Associates from prohibited or unauthorized disclosure or use of the Confidential Information. Each party agrees that it will take all reasonable\nmeasures to protect the secrecy of and avoid disclosure or use of Confidential Information of the other party in order to prevent it from falling into\nthe public domain or the possession of persons other than those persons authorized hereunder to have any such information, which measures shall\ninclude at least the same degree of care that the receiving party utilizes to protect its own Confidential Information of a similar nature. Each party\nagrees to notify the other party in writing of any misuse or misappropriation of such Confidential Information of the other party that may come to its\nattention.\nPromptly upon request by the disclosing party, and except as otherwise prohibited by law, the receiving party will, and will direct its Associates\nto, (i) return or, at the election of the receiving party, destroy any written Confidential Information provided by the disclosing party or its Associates\npursuant hereto and all copies or modifications thereof, and (ii) destroy those portions of any notes, analyses, compilations, studies, interpretations,\nmemoranda or other documents (regardless of the form thereof) prepared by the receiving party or its Associates which contain, reflect or are based\nupon, in whole or in part, any Confidential Information provided by the disclosing party or its Associates pursuant hereto, with any such destruction\nhereunder to be certified in writing by the receiving party. Notwithstanding the foregoing, (i) the receiving party and its Associates shall not be\nrequired to destroy any back-up computer records or other archived electronic files containing Confidential Information, (ii) the receiving party may\nretain a copy of any Confidential Information for its internal legal department files and (iii) the receiving party's Associates may retain a copy of any\nConfidential Information to the extent, and for only so long as, required pursuant to the regulatory compliance policies of such Associate; provided\nthat, in each such case, the party so retaining such Confidential Information shall exercise reasonable care in protecting the confidentiality of such\nConfidential Information from unauthorized use or disclosure.\n2. Nonpublicity. The existence and the terms of this Agreement, the Transaction contemplated hereby and the existence, nature and status\nof the discussions between the parties shall be treated as Confidential Information hereunder, shall be maintained in strict confidence by the parties\nhereto and by their respective Associates and shall not be disclosed to any third party.\n3. Required Disclosure. In the event that a receiving party or its Associates become legally compelled under applicable law, regulation or\nsecurities exchange listing agreement, or by a competent governmental, administrative or regulatory authority or in a proceeding before a court,\narbitrator or administrative agency to disclose any portion of the Confidential Information of a disclosing party, that discussions or negotiations\nbetween the parties hereto are taking place, or any of the terms, conditions or other facts with respect to the Transaction, including the status thereof,\nthe receiving party will, and will direct its Associates to, provide the disclosing party with prompt written notice (unless prohibited by law) of such\nlegal compulsion, and shall delay disclosure, if and to the extent permitted or practicable, until the disclosing party has had an opportunity to seek a\nprotective order or other appropriate remedy or to waive compliance by the receiving party and/or its Associates with the relevant provisions of this\nAgreement. In the event that a protective order or other remedy is not obtained in such a proceeding, or the disclosing party fails to waive\ncompliance with the relevant provisions of this Agreement, the receiving party agrees that it will, and will direct its Associates to, disclose only that\nConfidential Information of the disclosing party which its counsel advises is legally required to be disclosed and will exercise commercially\nreasonable efforts, and will direct its Associates to exercise their commercially reasonable efforts, at the request and expense of the disclosing party,\nto cooperate with the disclosing party to obtain reliable assurance that confidential treatment will be accorded the Confidential Information which is\nso disclosed.\n4. No License Granted. Nothing in this Agreement is intended to grant any rights to either party under any patent, copyright, trade secret or\nother intellectual property right nor shall this Agreement grant either party any rights in or to the other party's Confidential Information, except the\n2\nlimited right to review such Confidential Information solely for the purposes of determining whether to enter into, and the undertaking of or the\nadvising with respect to, a possible Transaction.\n5. No Representation of Accuracy. Each party acknowledges that neither the other party nor any of its Associates has made any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information made available by the other party\nor its Associates. Each party agrees that, except as set forth in a definitive agreement executed by the parties, neither party nor any of its Associates\nshall have any liability to the other party or to any of its Associates relating to or resulting from the use of such other party's Confidential\nInformation or any errors therein or omissions therefrom. Only those representations or warranties made in a definitive agreement, when, as and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n6. Standstill.\n(a) Until twelve (12) months from the date of this Agreement, without the prior written consent of the Company, neither HP nor any of\nits Affiliates will in any manner, directly or indirectly, (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause\nor participate in, (i) any acquisition of any issued and outstanding securities (or beneficial ownership thereof) of the Company or assets of the\nCompany or any of its subsidiaries (other than immaterial acquisitions of securities of the Company by individual Affiliates of HP who are\nnot controlled by HP and acquisitions of assets in the ordinary course of business); (ii) any tender or exchange offer, merger or other business\ncombination involving the Company; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with\nrespect to the Company; or (iv) any "solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and Exchange\nCommission) or consents to vote any voting securities of the Company; (b) form, join or in any way participate in a "group" (as defined\nunder the Securities Exchange Act of 1934, as amended (the "1934 Act")) with respect to the outstanding securities of the Company; (c)\notherwise act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of the Company;\n(d) take any action which might force the Company to make a public announcement regarding any of the types of matters set forth in (a)\nthrough (d) above; or (e) enter into any agreements with any third party with respect to any of the foregoing; provided, however, that HP\nshall not be required to obtain the prior written consent of the Company to engage in any of the foregoing actions following a Significant\nEvent (as defined below); provided further, that HP shall not be prohibited from making or discussing any offers regarding a transaction\ndescribed in clause (a)(i) above directly to or with the management or the Board of Directors of the Company, or their designated\nrepresentatives.\n(b) As used herein, the following terms shall have the following meanings:\n(i) "Significant Event" shall mean any of (i) the acquisition by a person, entity or 13D Group (as defined below), other than\nHP, of beneficial ownership of voting stock of the Company (the "Voting Stock") representing fifteen percent (15%) or more of the\nthen-outstanding Voting Stock; (ii) the announcement or commencement by a person, entity or 13D Group, other than HP, of a tender\nor exchange offer to acquire Voting Stock which, if successful, would result in such person, entity or 13D Group owning, when\ncombined with any other Voting Stock owned by such person, entity or 13D Group, fifteen percent (15%) or more of the then-\noutstanding Voting Stock; or (iii) the entering into by the Company, or publicly announced determination by the Company to seek to\nenter into, any merger, sale or other business combination transaction, other than a transaction with HP, pursuant to which (A) the\noutstanding shares of common stock of the Company (the "Common Stock") would be converted into cash or securities of another\nperson, entity or 13D Group, other than HP, (B)\n3\nfifty percent (50%) or more of the then-current issued and outstanding shares of Common Stock would be owned by a person or\nentity other than the then-current holders of shares of Common Stock or (C) would result in all or substantially all of the Company's\nassets being sold to any person, entity or 13D Group, other than HP (unless the Company's stockholders immediately prior to such\nsale of all or substantially all of the Company's assets will hold Voting Stock representing at least fifty percent (50%) of the voting\npower of the person, entity or 13D Group purchasing such assets).\n(ii) "13D Group" shall mean any group of persons or entities formed for the purpose of acquiring, holding, voting or disposing\nof Voting Stock which would be required under Section 13(d) of the 1934 Act and the rules and regulations thereunder to file a\nstatement on Schedule 13D with the Securities and Exchange Commission as a "person" within the meaning of section 13(d)(3) of\nthe Exchange Act if such group beneficially owned voting securities representing more than five percent (5%) of the Total Voting\nPower.\n(iii) "Total Voting Power" shall mean the total number of votes which may be cast in the election of directors of the Company at\nany meeting of the stockholders of the Company, if all Voting Stock was represented and voted to the fullest extent possible at such\nmeeting, other than the votes that may be cast only upon the happening of a contingency that has not occurred as of the relevant time.\n7. Securities Law Compliance. Each party acknowledges that it is aware, and that it will advise its Associates who receive Confidential\nInformation of the other party, that the United States securities laws prohibit any person who has material, non public information concerning the\nmatters which are the subject of this Agreement from purchasing or selling securities of such other party (and options, warrants and rights relating\nthereto) or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person\nincluding, without limitation, any of such party's Associates, is likely to purchase or sell such securities; and each party agrees to fully comply with\nsuch laws.\n8. Definitive Agreements. Each party acknowledges and agrees that other than with respect to the matters specifically set forth herein, no\ncontract or agreement providing for any transaction of the type contemplated by this Agreement shall be deemed to exist between the parties unless\nand until a definitive agreement has been executed and delivered. The parties further agree that each party reserves the right, in its sole discretion, to\nreject any and all proposals made by the other party or any of its Associates with regard to a transaction between the parties, and to terminate\ndiscussions or negotiations at any time.\n9. Similar Products. Each disclosing party acknowledges that the receiving party or its Associates may currently or in the future be\ndeveloping information internally, or receiving information from other parties, that is similar to the disclosing party's Confidential Information.\nNothing in this Agreement will prohibit the receiving party or its Associates from developing, manufacturing, marketing, selling, servicing or\nsupporting or having developed, manufactured, marketed, sold, serviced or supported for it products, concepts, systems or techniques that are similar\nto or compete with the products, concepts, systems or techniques contemplated by or embodied in the disclosing party's Confidential Information,\nprovided that the receiving party and its Associates do not use any of the disclosing party's Confidential Information in connection with such\nactivities. Neither party nor its respective Associates shall have any obligation to limit or restrict the assignment of its respective employees or\nconsultants as a result of their having had access to Confidential Information of the other party or its Associates. The receiving party and its\nAssociates, if any, may use and disclose any Residuals for any purpose, except that no license to any patent, trademark, mask work or copyright of\nthe disclosing party is granted under this Section. Residuals means disclosed Confidential Information remembered by those individuals within the\nscope of the receiving party's obligations under this\n4\nAgreement who no longer have access to the disclosed Confidential Information. However, Residuals does not include any detailed financial or\npersonnel data, or the identity of the disclosing party.\n10. Term. The foregoing commitments of either party in this Agreement regarding the confidentiality and non-use of Confidential\nInformation shall survive any termination of discussions between the parties, and shall continue for a period of twelve (12) months following the\ndate of this Agreement.\n11. Notice. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in writing\nand shall be deemed properly given on the day of delivery if delivered by hand or facsimile (with confirmation of delivery), or on the first business\nday after being sent by registered overnight mail, return receipt requested, by overnight courier or overnight express delivery service or facsimile (in\neach case, with confirmation of delivery) to the address or facsimile telephone number set forth beneath the name of such party below (or to such\nother address or facsimile telephone number as such party shall have specified in a written notice given to the other parties hereto):\nif to HP:\nHewlett-Packard Company\n3000 Hanover Street\nPalo Alto, CA 94304\nAttn: General Counsel\nFax number: (650) 857-2012\nif to Company:\nOpsware Inc.\n599 N. Mathilda Avenue\nSunnyvale, CA 94085\nAttn : John O'Farrell\nFax number: (408) 904-6176\n12. Governing Law and Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the laws of the\nState of Delaware applicable to agreements made and to be performed within that state. Each of the parties hereby agree and irrevocably consent to\npersonal jurisdiction and venue in any federal or state court within Wilmington, Delaware, having subject matter jurisdiction, for the purposes of any\naction, suit or proceeding arising out of or relating to this agreement. To the fullest extent permitted by law, each of the parties hereby agree to waive\ntrial by jury in any action proceeding or counterclaim brought by or on behalf of either party with respect to any matter whatsoever relating to this\nAgreement.\n13. Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto and supersedes all other prior agreements\nand understandings, both written and oral, among or between any of the parties with respect to the subject matter hereof and thereof. All\nmodifications of, waivers of and amendments to this letter agreement must be in writing and signed by both parties hereto.\n14. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one instrument. Any counterpart signed by an authorized representative of a party and delivered to the other party by\ntelecopier shall be deemed an original counterpart and duly delivered.\n[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]\n5\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.\nOPSWARE INC.\nBy:\n/s/ JOHN O'FARRELL\nName:\nJohn O'Farrell\nTitle:\nEVP Bus. Dev.\nHEWLETT-PACKARD COMPANY\nBy:\n/s/ SANDEEP JOHRI\nName:\nSandeep Johri\nTitle:\nV.P. Strategy & Corp. Dev.\n6 EX-99.(D)(3) 9 a2179028zex-99_d3.htm EXHIBIT 99.(D)(3)\nQuickLinks -- Click here to rapidly navigate through this document\nExhibit (d)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis MUTUAL NONDISCLOSURE AGREEMENT (this "Agreement") is made as of May 9, 2007 by and between Opsware Inc., a Delaware\ncorporation (the "Company"), and Hewlett-Packard Company, a Delaware corporation ("HP").\nThe Company and HP are evaluating entering into a potential business transaction (the "Transaction") under which each may disclose certain\ninformation, including Confidential Information (as defined below), to the other. As a condition to such information being furnished to each party, its\nsubsidiaries and other individuals and entities controlled, directly or indirectly, by such party ("Affiliates") and the respective directors, officers,\nemployees, agents, representatives, consultants, accountants, attorneys and advisors of such party and its Affiliates (collectively with such Affiliates,\n"Associates"), each party agrees to treat the other party's Confidential Information in accordance with the provisions of this Agreement, and to take\nor abstain from taking certain other actions, as described in this Agreement. A party disclosing Confidential Information hereunder is referred to\nherein as "the disclosing party" and a party receiving the Confidential Information of a disclosing party hereunder is referred to herein as "the\nreceiving party."\n1. Nondisclosure of Confidential Information.\n"Confidential Information" means any information, technical data or know-how, including, but not limited to, that which relates to research,\nproduct or service plans, business practices, agreement terms, products, services, employees, suppliers, customers, technology or other strategic\npartners, stockholders, markets, software, know-how, developments, inventions, processes, designs, drawings, engineering, hardware configuration\ninformation, marketing, finances, notes, analyses or studies and all tangible and intangible embodiments thereof of any kind whatsoever, whether\nconveyed in writing or orally by the disclosing party or its Associates to the receiving party or its Associates in connection with the evaluation of a\nTransaction. The term "Confidential Information" shall be deemed to include those portions of any notes, analyses, compilations, studies,\ninterpretations, memoranda or other documents (regardless of the form thereof) prepared by the receiving party or its Associates which contain,\nreflect or are based upon, in whole or in part, any information furnished to the receiving party or its Associates pursuant hereto. Notwithstanding the\nforegoing, Confidential Information does not include information, technical data or know-how which: (i) is rightfully in the possession of the\nreceiving party at the time of disclosure as shown by the receiving party's files and records immediately prior to the time of disclosure; (ii) prior to or\nafter the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action of the receiving party in\nviolation of its obligations hereunder; (iii) is obtained by the receiving party from a source other than the disclosing party or any of its Associates,\nwhich source is not known by the receiving party to have any obligation of confidentiality to the disclosing party with respect to such information\n(iv) is approved, in writing, for release by the disclosing party; or (v) the receiving party can document was independently developed by the\nreceiving party without use of or reference to the disclosing party's Confidential Information.\nEach of the parties hereto agrees not to use the Confidential Information disclosed to it by the other party or its Associates for its own use or for\nany purpose except to evaluate the contemplated Transaction. Neither party will disclose any Confidential Information of the other party to third\nparties except those Associates of such party who are required to have the information in order to carry out the evaluation and discussions\nconcerning the contemplated Transaction. The receiving party shall inform its Associates of the confidential nature of the Confidential Information\nand shall instruct them to treat the information confidentially. The receiving party shall be responsible for any breach of this Agreement by its\nAssociates and agrees, at its sole expense, to take all reasonable measures to restrain\n1\nits Associates from prohibited or unauthorized disclosure or use of the Confidential Information. Each party agrees that it will take all reasonable\nmeasures to protect the secrecy of and avoid disclosure or use of Confidential Information of the other party in order to prevent it from falling into\nthe public domain or the possession of persons other than those persons authorized hereunder to have any such information, which measures shall\ninclude at least the same degree of care that the receiving party utilizes to protect its own Confidential Information of a similar nature. Each party\nagrees to notify the other party in writing of any misuse or misappropriation of such Confidential Information of the other party that may come to its\nattention.\nPromptly upon request by the disclosing party, and except as otherwise prohibited by law, the receiving party will, and will direct its Associates\nto, (i) return or, at the election of the receiving party, destroy any written Confidential Information provided by the disclosing party or its Associates\npursuant hereto and all copies or modifications thereof, and (ii) destroy those portions of any notes, analyses, compilations, studies, interpretations,\nmemoranda or other documents (regardless of the form thereof) prepared by the receiving party or its Associates which contain, reflect or are based\nupon, in whole or in part, any Confidential Information provided by the disclosing party or its Associates pursuant hereto, with any such destruction\nhereunder to be certified in writing by the receiving party. Notwithstanding the foregoing, (i) the receiving party and its Associates shall not be\nrequired to destroy any back-up computer records or other archived electronic files containing Confidential Information, (ii) the receiving party may\nretain a copy of any Confidential Information for its internal legal department files and (iii) the receiving party's Associates may retain a copy of any\nConfidential Information to the extent, and for only so long as, required pursuant to the regulatory compliance policies of such Associate; provided\nthat, in each such case, the party so retaining such Confidential Information shall exercise reasonable care in protecting the confidentiality of such\nConfidential Information from unauthorized use or disclosure.\n2. Nonpublicity. The existence and the terms of this Agreement, the Transaction contemplated hereby and the existence, nature and status\nof the discussions between the parties shall be treated as Confidential Information hereunder, shall be maintained in strict confidence by the parties\nhereto and by their respective Associates and shall not be disclosed to any third party.\n3. Required Disclosure. In the event that a receiving party or its Associates become legally compelled under applicable law, regulation or\nsecurities exchange listing agreement, or by a competent governmental, administrative or regulatory authority or in a proceeding before a court,\narbitrator or administrative agency to disclose any portion of the Confidential Information of a disclosing party, that discussions or negotiations\nbetween the parties hereto are taking place, or any of the terms, conditions or other facts with respect to the Transaction, including the status thereof,\nthe receiving party will, and will direct its Associates to, provide the disclosing party with prompt written notice (unless prohibited by law) of such\nlegal compulsion, and shall delay disclosure, if and to the extent permitted or practicable, until the disclosing party has had an opportunity to seek a\nprotective order or other appropriate remedy or to waive compliance by the receiving party and/or its Associates with the relevant provisions of this\nAgreement. In the event that a protective order or other remedy is not obtained in such a proceeding, or the disclosing party fails to waive\ncompliance with the relevant provisions of this Agreement, the receiving party agrees that it will, and will direct its Associates to, disclose only that\nConfidential Information of the disclosing party which its counsel advises is legally required to be disclosed and will exercise commercially\nreasonable efforts, and will direct its Associates to exercise their commercially reasonable efforts, at the request and expense of the disclosing party,\nto cooperate with the disclosing party to obtain reliable assurance that confidential treatment will be accorded the Confidential Information which is\nso disclosed.\n4. No License Granted. Nothing in this Agreement is intended to grant any rights to either party under any patent, copyright, trade secret or\nother intellectual property right nor shall this Agreement grant either party any rights in or to the other party's Confidential Information, except the\n2\nlimited right to review such Confidential Information solely for the purposes of determining whether to enter into, and the undertaking of or the\nadvising with respect to, a possible Transaction.\n5. No Representation of Accuracy. Each party acknowledges that neither the other party nor any of its Associates has made any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information made available by the other party\nor its Associates. Each party agrees that, except as set forth in a definitive agreement executed by the parties, neither party nor any of its Associates\nshall have any liability to the other party or to any of its Associates relating to or resulting from the use of such other party's Confidential\nInformation or any errors therein or omissions therefrom. Only those representations or warranties made in a definitive agreement, when, as and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n6. Standstill.\n(a) Until twelve (12) months from the date of this Agreement, without the prior written consent of the Company, neither HP nor any of\nits Affiliates will in any manner, directly or indirectly, (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause\nor participate in, (i) any acquisition of any issued and outstanding securities (or beneficial ownership thereof) of the Company or assets of the\nCompany or any of its subsidiaries (other than immaterial acquisitions of securities of the Company by individual Affiliates of HP who are\nnot controlled by HP and acquisitions of assets in the ordinary course of business); (ii) any tender or exchange offer, merger or other business\ncombination involving the Company; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with\nrespect to the Company; or (iv) any "solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and Exchange\nCommission) or consents to vote any voting securities of the Company; (b) form, join or in any way participate in a "group" (as defined\nunder the Securities Exchange Act of 1934, as amended (the "1934 Act")) with respect to the outstanding securities of the Company; (c)\notherwise act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of the Company;\n(d) take any action which might force the Company to make a public announcement regarding any of the types of matters set forth in (a)\nthrough (d) above; or (e) enter into any agreements with any third party with respect to any of the foregoing; provided, however, that HP\nshall not be required to obtain the prior written consent of the Company to engage in any of the foregoing actions following a Significant\nEvent (as defined below); provided further, that HP shall not be prohibited from making or discussing any offers regarding a transaction\ndescribed in clause (a)(i) above directly to or with the management or the Board of Directors of the Company, or their designated\nrepresentatives.\n(b) As used herein, the following terms shall have the following meanings:\n(i) "Significant Event" shall mean any of (i) the acquisition by a person, entity or 13D Group (as defined below), other than\nHP, of beneficial ownership of voting stock of the Company (the "Voting Stock") representing fifteen percent (15%) or more of the\nthen-outstanding Voting Stock; (ii) the announcement or commencement by a person, entity or 13D Group, other than HP, of a tender\nor exchange offer to acquire Voting Stock which, if successful, would result in such person, entity or 13D Group owning, when\ncombined with any other Voting Stock owned by such person, entity or 13D Group, fifteen percent (15%) or more of the then-\noutstanding Voting Stock; or (iii) the entering into by the Company, or publicly announced determination by the Company to seek to\nenter into, any merger, sale or other business combination transaction, other than a transaction with HP, pursuant to which (A) the\noutstanding shares of common stock of the Company (the "Common Stock") would be converted into cash or securities of another\nperson, entity or 13D Group, other than HP, (B)\nfifty percent (50%) or more of the then-current issued and outstanding shares of Common Stock would be owned by a person or\nentity other than the then-current holders of shares of Common Stock or (C) would result in all or substantially all of the Company's\nassets being sold to any person, entity or 13D Group, other than HP (unless the Company's stockholders immediately prior to such\nsale of all or substantially all of the Company's assets will hold Voting Stock representing at least fifty percent (50%) of the voting\npower of the person, entity or 13D Group purchasing such assets).\n(ii) "13D Group" shall mean any group of persons or entities formed for the purpose of acquiring, holding, voting or disposing\nof Voting Stock which would be required under Section 13(d) of the 1934 Act and the rules and regulations thereunder to file a\nstatement on Schedule 13D with the Securities and Exchange Commission as a "person" within the meaning of section 13(d)(3) of\nthe Exchange Act if such group beneficially owned voting securities representing more than five percent (5%) of the Total Voting\nPower.\n(iii) "Total Voting Power" shall mean the total number of votes which may be cast in the election of directors of the Company at\nany meeting of the stockholders of the Company, if all Voting Stock was represented and voted to the fullest extent possible at such\nmeeting, other than the votes that may be cast only upon the happening of a contingency that has not occurred as of the relevant time.\n7. Securities Law Compliance. Each party acknowledges that it is aware, and that it will advise its Associates who receive Confidential\nInformation of the other party, that the United States securities laws prohibit any person who has material, non public information concerning the\nmatters which are the subject of this Agreement from purchasing or selling securities of such other party (and options, warrants and rights relating\nthereto) or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person\nincluding, without limitation, any of such party's Associates, is likely to purchase or sell such securities; and each party agrees to fully comply with\nsuch laws.\n \n8. Definitive Agreements. Each party acknowledges and agrees that other than with respect to the matters specifically set forth herein, no\ncontract or agreement providing for any transaction of the type contemplated by this Agreement shall be deemed to exist between the parties unless\nand until a definitive agreement has been executed and delivered. The parties further agree that each party reserves the right, in its sole discretion, to\nreject any and all proposals made by the other party or any of its Associates with regard to a transaction between the parties, and to terminate\ndiscussions or negotiations at any time.\n9. Similar Products. Each disclosing party acknowledges that the receiving party or its Associates may currently or in the future be\ndeveloping information internally, or receiving information from other parties, that is similar to the disclosing party's Confidential Information.\nNothing in this Agreement will prohibit the receiving party or its Associates from developing, manufacturing, marketing, selling, servicing or\nsupporting or having developed, manufactured, marketed, sold, serviced or supported for it products, concepts, systems or techniques that are similar\nto or compete with the products, concepts, systems or techniques contemplated by or embodied in the disclosing party's Confidential Information,\nprovided that the receiving party and its Associates do not use any of the disclosing party's Confidential Information in connection with such\nactivities. Neither party nor its respective Associates shall have any obligation to limit or restrict the assignment of its respective employees or\nconsultants as a result of their having had access to Confidential Information of the other party or its Associates. The receiving party and its\nAssociates, if any, may use and disclose any Residuals for any purpose, except that no license to any patent, trademark, mask work or copyright of\nthe disclosing party is granted under this Section. Residuals means disclosed Confidential Information remembered by those individuals within the\nscope of the receiving party's obligations under this\nAgreement who no longer have access to the disclosed Confidential Information. However, Residuals does not include any detailed financial or\npersonnel data, or the identity of the disclosing party.\n10. Term. The foregoing commitments of either party in this Agreement regarding the confidentiality and non-use of Confidential\nInformation shall survive any termination of discussions between the parties, and shall continue for a period of twelve (12) months following the\ndate of this Agreement.\n11. Notice. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in writing\nand shall be deemed properly given on the day of delivery if delivered by hand or facsimile (with confirmation of delivery), or on the first business\nday after being sent by registered overnight mail, return receipt requested, by overnight courier or overnight express delivery service or facsimile (in\neach case, with confirmation of delivery) to the address or facsimile telephone number set forth beneath the name of such party below (or to such\nother address or facsimile telephone number as such party shall have specified in a written notice given to the other parties hereto):\nif to HP:\nHewlett-Packard Company\n3000 Hanover Street\nPalo Alto, CA 94304\nAttn: General Counsel\nFax number: (650) 857-2012\nif to Company:\nOpsware Inc.\n599 N. Mathilda Avenue\nSunnyvale, CA 94085\nAttn : John O'Farrell\nFax number: (408) 904-6176\n12. Governing Law and Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the laws of the\nState of Delaware applicable to agreements made and to be performed within that state. Each of the parties hereby agree and irrevocably consent to\npersonal jurisdiction and venue in any federal or state court within Wilmington, Delaware, having subject matter jurisdiction, for the purposes of any\naction, suit or proceeding arising out of or relating to this agreement. To the fullest extent permitted by law, each of the parties hereby agree to waive\ntrial by jury in any action proceeding or counterclaim brought by or on behalf of either party with respect to any matter whatsoever relating to this\nAgreement.\n13. Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto and supersedes all other prior agreements\nand understandings, both written and oral, among or between any of the parties with respect to the subject matter hereof and thereof. All\nmodifications of, waivers of and amendments to this letter agreement must be in writing and signed by both parties hereto.\n14. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one instrument. Any counterpart signed by an authorized representative of a party and delivered to the other party by\ntelecopier shall be deemed an original counterpart and duly delivered.\n[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]\n5\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.\nOPSWARE INC.\nBy: /s/ JOHN O'FARRELL\nName: John O'Farrell\nTitle: EVP Bus. Dev.\nHEWLETT-PACKARD COMPANY\nBy: /s/ SANDEEP JOHRI\nName: Sandeep Johri\nTitle: V.P. Strategy & Corp. Dev. EX-99.(D)(3) 9 2179028zex-99 d3.htm EXHIBIT 99.(D)(3)\nQuickLinks Click here to rapidly navigate through this document\nExhibit (d)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis MUTUAL NONDISCLOSURE AGREEMENT (this "Agreement") is made as of May 9, 2007 by and between Opsware Inc., a Delaware\ncorporation (the "Company"), and Hewlett-Packard Company, a Delaware corporation ("HP").\nThe Company and HP are evaluating entering into a potential business transaction (the "Transaction") under which each may disclose certain\ninformation, including Confidential Information (as defined below), to the other. As a condition to such information being furnished to each party, its\nsubsidiaries and other individuals and entities controlled, directly or indirectly, by such party ("Affiliates") and the respective directors, officers,\nemployees, agents, representatives, consultants, accountants, attorneys and advisors of such party and its Affiliates (collectively with such Affiliates,\n"Associates"), each party agrees to treat the other party's Confidential Information in accordance with the provisions of this Agreement, and to take\nor\nabstain from taking certain other actions, as described in this Agreement. A party disclosing Confidential Information hereunder is referred to\nherein as "the disclosing party" and a party receiving the Confidential Information of a disclosing party hereunder is referred to herein as "the\nreceiving party."\n1.\nNondisclosure of Confidential Information.\n"Confidential Information" means any information, technical data or know-how, including, but not limited to, that which relates to research,\nproduct or service plans, business practices, agreement terms, products, services, employees, suppliers, customers, technology or other strategic\npartners, stockholders, markets, software, know-how, developments, inventions, processes, designs, drawings, engineering, hardware configuration\ninformation, marketing, finances, notes, analyses or studies and all tangible and intangible embodiments thereof of any kind whatsoever, whether\nconveyed in writing or orally by the disclosing party or its Associates to the receiving party or its Associates in connection with the evaluation of\na\nTransaction. The term "Confidential Information" shall be deemed to include those portions of any notes, analyses, compilations, studies,\ninterpretations, memoranda or other documents (regardless of the form thereof) prepared by the receiving party or its Associates which contain,\nreflect or are based upon, in whole or in part, any information furnished to the receiving party or its Associates pursuant hereto. Notwithstanding the\nforegoing, Confidential Information does not include information, technical data or know-how which: (i) is rightfully in the possession of the\nreceiving party at the time of disclosure as shown by the receiving party's files and records immediately prior to the time of disclosure; (ii) prior to\nor\nafter the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action of the receiving party in\nviolation of its obligations hereunder; (iii) is obtained by the receiving party from a source other than the disclosing party or any of its Associates,\nwhich source is not known by the receiving party to have any obligation of confidentiality to the disclosing party with respect to such information\n(iv) is approved, in writing, for release by the disclosing party; or (v) the receiving party can document was independently developed by the\nreceiving party without use of or reference to the disclosing party's Confidentia Information.\nEach of the parties hereto agrees not to use the Confidential Information disclosed to it by the other party or its Associates for its own use or for\nany purpose except to evaluate the contemplated Transaction. Neither party will disclose any Confidential Information of the other party to third\nparties except those Associates of such party who are required to have the information in order to carry out the evaluation and discussions\nconcerning the contemplated Transaction. The receiving party shall inform its Associates of the confidential nature of the Confidentia Information\nand shall instruct them to treat the information confidentially. The receiving party shall be responsible for any breach of this Agreement by its\nAssociates and agrees, at its sole expense, to take all reasonable measures to restrain\n1\nits Associates from prohibited or unauthorized disclosure or use of the Confidentia Information. Each party agrees that it will take all reasonable\nmeasures to protect the secrecy of and avoid disclosure or use of Confidential Information of the other party in order to prevent it from falling into\nthe public domain or the possession of persons other than those persons authorized hereunder to have any such information, which measures shall\ninclude at least the same degree of care that the receiving party utilizes to protect its own Confidential Information of a similar nature.\nEach\nparty\nagrees to notify the other party in writing of any misuse or misappropriation of such Confidential Information of the other party that may come to its\nattention.\nPromptly upon request by the disclosing party, and except as otherwise prohibited by law, the receiving party will, and will direct its Associates\nto, (i) return or, at the election of the receiving party, destroy any written Confidential Information provided by the disclosing party or its Associates\npursuant hereto and all copies or modifications thereof, and (ii) destroy those portions of any notes, analyses, compilations, studies, interpretations,\nmemoranda or other documents (regardless of the form thereof) prepared by the receiving party or its Associates which contain, reflect or are based\nupon, in whole or in part, any Confidential Information provided by the disclosing party or its Associates pursuant hereto, with any such destruction\nhereunder to be certified in writing by the receiving party. Notwithstanding the foregoing, (i) the receiving party and its Associates shall not be\nrequired to destroy any back-up computer records or other archived electronic files containing Confidential Information, (ii) the receiving party may\nretain a copy of any Confidential Information for its internal legal department files and (iii) the receiving party's Associates may retain a copy of\nany\nConfidential Information to the extent, and for only so long as, required pursuant to the regulatory compliance policies of such Associate; provided\nthat, in each such case, the party so retaining such Confidential Information shall exercise reasonable care in protecting the confidentiality of such\nConfidential Information from unauthorized use or disclosure.\n2. Nonpublicity.. The existence and the terms of this Agreement, the Transaction contemplated hereby and the existence, nature and status\nof the discussions between the parties shall be treated as Confidential Information hereunder, shall be maintained in strict confidence by the parties\nhereto and by their respective Associates and shall not be disclosed to any third party.\n3. Required Disclosure. In the event that a receiving party or its Associates become legally compelled under applicable law, regulation or\nsecurities exchange listing agreement, or by a competent governmental, administrative or regulatory authority or in a proceeding before a court,\narbitrator or administrative agency to disclose any portion of the Confidential Information of a disclosing party, that discussions or negotiations\nbetween the parties hereto are taking place, or any of the terms, conditions or other facts with respect to the Transaction, including the status thereof,\nthe receiving party will, and will direct its Associates to, provide the disclosing party with prompt written notice (unless prohibited by law) of such\nlegal compulsion, and shall delay disclosure, if and to the extent permitted or practicable, until the disclosing party has had an opportunity to seek a\nprotective\norder\nor\nother\nappropriate\nremedy\nor\nto\nwaive\ncompliance\nby\nthe\nreceiving\nparty\nand/or\nits\nAssociates\nwith\nthe\nrelevant\nprovisions\nof\nthis\nAgreement. In the event that a protective order or other remedy is not obtained in such a proceeding, or the disclosing party fails to waive\ncompliance with the relevant provisions of this Agreement, the receiving party agrees that it will, and will direct its Associates to, disclose only that\nConfidential Information of the disclosing party which its counsel advises is legally required to be disclosed and will exercise commercially\nreasonable efforts, and will direct its Associates to exercise their commercially reasonable efforts, at the request and expense of the disclosing party,\nto cooperate with the disclosing party to obtain reliable assurance that confidential treatment will be accorded the Confidential Information which\nis\nso disclosed.\n4. No License Granted. Nothing in this Agreement is intended to grant any rights to either party under any patent, copyright, trade secret\nor\nother intellectual property right nor shall this Agreement grant either party any rights in or to the other party's Confidential Information, except the\n2\nlimited right to review such Confidential Information solely for the purposes of determining whether to enter into, and the undertaking of or the\nadvising with respect to, a possible Transaction.\n5. No Representation of Accuracy.. Each party acknowledges that neither the other party nor any of its Associates has made any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information made available by the other party\nor its Associates. Each party agrees that, except as set forth in a definitive agreement executed by the parties, neither party nor any of its Associates\nshall have any liability to the other party or to any of its Associates relating to or resulting from the use of such other party's Confidential\nInformation or any errors therein or omissions therefrom. Only those representations or warranties made in a definitive agreement, when, as and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n6. Standstill.\n(a)\nUntil twelve (12) months from the date of this Agreement, without the prior written consent of the Company, neither\nHP\nnor\nany\nof\nits Affiliates will in any manner, directly or indirectly, (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause\nor participate in, (i) any acquisition of any issued and outstanding securities (or beneficial ownership thereof) of the Company or assets of the\nCompany or any of its subsidiaries (other than immaterial acquisitions of securities of the Company by individual Affiliates of HP who are\nnot controlled by HP and acquisitions of assets in the ordinary course of business); (ii) any tender or exchange offer, merger or other business\ncombination involving the Company; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with\nrespect to the Company; or (iv) any "solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and Exchange\nCommission) or consents to vote any voting securities of the Company; (b) form, join or in any way participate in a "group" (as defined\nunder the Securities Exchange Act of 1934, as amended (the "1934 Act")) with respect to the outstanding securities of the Company; (c)\notherwise act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of the Company;\n(d) take any action which might force the Company to make a public announcement regarding any of the types of matters set forth in (a)\nthrough (d) above; or (e) enter into any agreements with any third party with respect to any of the foregoing; provided, however, that HP\nshall not be required to obtain the prior written consent of the Company to engage in any of the foregoing actions following a Significant\nEvent (as defined below); provided further, that HP shall not be prohibited from making or discussing any offers regarding a transaction\ndescribed in clause (a)(i) above directly to or with the management or the Board of Directors of the Company, or their designated\nrepresentatives.\n(b) As used herein, the following terms shall have the following meanings:\n(i) "Significant Event" shall mean any of (i) the acquisition by a person, entity or 13D Group (as defined below), other than\nHP,\nof beneficial ownership of voting stock of the Company (the "Voting Stock") representing fifteen percent (15%) or more of the\nthen-outstanding Voting Stock; (ii) the announcement or commencement by a person, entity or 13D Group, other than HP, of a tender\nor exchange offer to acquire Voting Stock which, if successful, would result in such person, entity or 13D Group owning, when\ncombined with any other Voting Stock owned by such person, entity or 13D Group, fifteen percent (15%) or more of the then-\noutstanding Voting Stock; or (iii) the entering into by the Company, or publicly announced determination by the Company to seek\nto\nenter into, any merger, sale or other business combination transaction, other than a transaction with HP, pursuant to which (A) the\noutstanding shares of common stock of the Company (the "Common Stock") would be converted into cash or securities of another\nperson, entity or 13D Group, other than HP, (B)\n3\nfifty percent (50%) or more of the then-current issued and outstanding shares of Common Stock would be owned by a person or\nentity other than the then-current holders of shares of Common Stock or (C) would result in all or substantially all of the Company's\nassets being sold to any person, entity or 13D Group, other than HP (unless the Company's stockholders immediately prior to such\nsale of all or substantially all of the Company's assets will hold Voting Stock representing at least fifty percent (50%) of the voting\npower of the person, entity or 13D Group purchasing such assets).\n(ii) "13D Group" shall mean any group of persons or entities formed for the purpose of acquiring, holding, voting or disposing\nof Voting Stock which would be required under Section 13(d) of the 1934 Act and the rules and regulations thereunder to file\na\nstatement on Schedule 13D with the Securities and Exchange Commission as a "person" within the meaning of section 13(d)(3)\nof\nthe Exchange Act if such group beneficially owned voting securities representing more than five percent (5%) of the Total Voting\nPower.\n(iii) "Total Voting Power" shall mean the total number of votes which may be cast in the election of directors of the Company at\nany meeting of the stockholders of the Company, if all Voting Stock was represented and voted to the fullest extent possible at such\nmeeting, other than the votes that may be cast only upon the happening of a contingency that has not occurred as of the relevant time.\n7. Securities Law Compliance. Each party acknowledges that it is aware, and that it will advise its Associates who receive Confidential\nInformation of the other party, that the United States securities laws prohibit any person who has material, non public information concerning the\nmatters which are the subject of this Agreement from purchasing or selling securities of such other party (and options, warrants and rights relating\nthereto) or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person\nincluding, without limitation, any of such party's Associates, is likely to purchase or sell such securities; and each party agrees to fully comply with\nsuch laws.\n8. Definitive Agreements. Each party acknowledges and agrees that other than with respect to the matters specifically set forth herein,\nno\ncontract or agreement providing for any transaction of the type contemplated by this Agreement shall be deemed to exist between the parties unless\nand until a definitive agreement has been executed and delivered. The parties further agree that each party reserves the right, in its sole discretion, to\nreject any and all proposals made by the other party or any of its Associates with regard to a transaction between the parties, and to terminate\ndiscussions or negotiations at any time.\n9.\nSimilar Products. Each disclosing party acknowledges that the receiving party or its Associates may currently or in the future be\ndeveloping information internally, or receiving information from other parties, that is similar to the disclosing party's Confidential Information.\nNothing in this Agreement will prohibit the receiving party or its Associates from developing, manufacturing, marketing, selling, servicing or\nsupporting or having developed, manufactured, marketed, sold, serviced or supported for it products, concepts, systems or techniques that are similar\nto or compete with the products, concepts, systems or techniques contemplated by or embodied in the disclosing party's Confidential Information,\nprovided that the receiving party and its Associates do not use any of the disclosing party's Confidential Information in connection with such\nactivities. Neither party nor its respective Associates shall have any obligation to limit or restrict the assignment of its respective employees or\nconsultants as a result of their having had access to Confidential Information of the other party or its Associates. The receiving party and its\nAssociates, if any, may use and disclose any Residuals for any purpose, except that no license to any patent, trademark, mask work or copyright of\nthe disclosing party is granted under this Section. Residuals means disclosed Confidential Information remembered by those individuals within the\nscope of the receiving party's obligations under this\n4\nAgreement who no longer have access to the disclosed Confidential Information. However, Residuals does not include any detailed financial or\npersonnel data, or the identity of the disclosing party.\n10. Term The foregoing commitments of either party in this Agreement regarding the confidentiality and non-use of Confidential\nInformation shall survive any termination of discussions between the parties, and shall continue for a period of twelve (12) months following the\ndate of this Agreement.\n11. Notice Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in writing\nand shall be deemed properly given on the day of delivery if delivered by hand or facsimile (with confirmation of delivery), or on the first business\nday after being sent by registered overnight mail, return receipt requested, by overnight courier or overnight express delivery service or facsimile (in\neach case, with confirmation of delivery) to the address or facsimile telephone number set forth beneath the name of such party below (or to such\nother address or facsimile telephone number as such party shall have specified in a written notice given to the other parties hereto):\nif to HP:\nHewlett-Packard Company\n3000 Hanover Street\nPalo Alto, CA 94304\nAttn: General Counsel\nFax number: (650) 857-2012\nif to Company:\nOpsware Inc.\n599 N. Mathilda Avenue\nSunnyvale, CA 94085\nAttn John O'Farrell\nFax number: (408) 904-6176\n12. Governing Law and Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the laws of the\nState of Delaware applicable to agreements made and to be performed within that state. Each of the parties hereby agree and irrevocably consent to\npersonal jurisdiction and venue in any federal or state court within Wilmington, Delaware, having subject matter jurisdiction, for the purposes of any\naction,\nsuit\nor proceeding arising out of or relating to this agreement. To the fullest extent permitted by law, each of the parties hereby agree to waive\ntrial by jury in any action proceeding or counterclaim brought by or on behalf of either party with respect to any matter whatsoever relating to this\nAgreement.\n13. Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto and supersedes all other prior agreements\nand\nunderstandings, both written and oral, among or between any of the parties with respect to the subject matter hereof and thereof. All\nmodifications of, waivers of and amendments to this letter agreement must be in writing and signed by both parties hereto.\n14. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one instrument. Any counterpart signed by an authorized representative of a party and delivered to the other party by\ntelecopier shall be deemed an original counterpart and duly delivered.\n[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]\n5\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.\nOPSWARE INC.\nBy:\n/s/ JOHN O'FARRELL\nName:\nJohn O'Farrell\nTitle:\nEVP Bus. Dev.\nHEWLETT-PACKARD COMPANY\nBy:\n/s/ SANDEEP JOHRI\nName:\nSandeep Johri\nTitle:\nV.P. Strategy & Corp. Dev.\n6 EX-99.(D)(3) 9 a2179028zex-99 _d3.htm EXHIBIT 99.(D)(3)\nQuickLinks -- Click here to rapidly navigate through this document\nExhibit (d)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis MUTUAL NONDISCLOSURE AGREEMENT (this "Agreement") is made as of May 9, 2007 by and between Opsware Inc., a Delaware\ncorporation (the "Company"), and Hewlett-Packard Company, a Delaware corporation ("HP").\nThe Company and HP are evaluating entering into a potential business transaction (the "Transaction") under which each may disclose certain\ninformation, including Confidential Information (as defined below), to the other. As a condition to such information being furnished to each party, its\nsubsidiaries and other individuals and entities controlled, directly or indirectly, by such party ("Affiliates") and the respective directors, officers,\nemployees, agents, representatives, consultants, accountants, attorneys and advisors of such party and its Affiliates (collectively with such Affiliates,\n"Associates"), each party agrees to treat the other party's Confidential Information in accordance with the provisions of this Agreement, and to take\nor abstain from taking certain other actions, as described in this Agreement. A party disclosing Confidential Information hereunder is referred to\nherein as "the disclosing party" and a party receiving the Confidential Information of a disclosing party hereunder is referred to herein as "the\nreceiving party."\n1. Nondisclosure of Confidential Information.\n"Confidential Information" means any information, technical data or know-how, including, but not limited to, that which relates to research,\nproduct or service plans, business practices, agreement terms, products, services, employees, suppliers, customers, technology or other strategic\npartners, stockholders, markets, software, know-how, developments, inventions, processes, designs, drawings, engineering, hardware configuration\ninformation, marketing, finances, notes, analyses or studies and all tangible and intangible embodiments thereof of any kind whatsoever, whether\nconveyed in writing or orally by the disclosing party or its Associates to the receiving party or its Associates in connection with the evaluation of a\nTransaction. The term "Confidential Information" shall be deemed to include those portions of any notes, analyses, compilations, studies,\ninterpretations, memoranda or other documents (regardless of the form thereof) prepared by the receiving party or its Associates which contain,\nreflect or are based upon, in whole or in part, any information furnished to the receiving party or its Associates pursuant hereto. Notwithstanding the\nforegoing, Confidential Information does not include information, technical data or know-how which: (i) is rightfully in the possession of the\nreceiving party at the time of disclosure as shown by the receiving party's files and records immediately prior to the time of disclosure; (ii) prior to or\nafter the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action of the receiving party in\nviolation of its obligations hereunder; (iii) is obtained by the receiving party from a source other than the disclosing party or any of its Associates,\nwhich source is not known by the receiving party to have any obligation of confidentiality to the disclosing party with respect to such information\n(iv) is approved, in writing, for release by the disclosing party; or (v) the receiving party can document was independently developed by the\nreceiving party without use of or reference to the disclosing party's Confidential Information.\nEach of the parties hereto agrees not to use the Confidential Information disclosed to it by the other party or its Associates for its own use or for\nany purpose except to evaluate the contemplated Transaction. Neither party will disclose any Confidential Information of the other party to third\nparties except those Associates of such party who are required to have the information in order to carry out the evaluation and discussions\nconcerning the contemplated Transaction. The receiving party shall inform its Associates of the confidential nature of the Confidential Information\nand shall instruct them to treat the information confidentially. The receiving party shall be responsible for any breach of this Agreement by its\nAssociates and agrees, at its sole expense, to take all reasonable measures to restrain\n1\nits Associates from prohibited or unauthorized disclosure or use of the Confidential Information. Each party agrees that it will take all reasonable\nmeasures to protect the secrecy of and avoid disclosure or use of Confidential Information of the other party in order to prevent it from falling into\nthe public domain or the possession of persons other than those persons authorized hereunder to have any such information, which measures shall\ninclude at least the same degree of care that the receiving party utilizes to protect its own Confidential Information of a similar nature. Each party\nagrees to notify the other party in writing of any misuse or misappropriation of such Confidential Information of the other party that may come to its\nattention.\nPromptly upon request by the disclosing party, and except as otherwise prohibited by law, the receiving party will, and will direct its Associates\nto, (i) return or, at the election of the receiving party, destroy any written Confidential Information provided by the disclosing party or its Associates\npursuant hereto and all copies or modifications thereof, and (ii) destroy those portions of any notes, analyses, compilations, studies, interpretations,\nmemoranda or other documents (regardless of the form thereof) prepared by the receiving party or its Associates which contain, reflect or are based\nupon, in whole or in part, any Confidential Information provided by the disclosing party or its Associates pursuant hereto, with any such destruction\nhereunder to be certified in writing by the receiving party. Notwithstanding the foregoing, (i) the receiving party and its Associates shall not be\nrequired to destroy any back-up computer records or other archived electronic files containing Confidential Information, (ii) the receiving party may\nretain a copy of any Confidential Information for its internal legal department files and (iii) the receiving party's Associates may retain a copy of any\nConfidential Information to the extent, and for only so long as, required pursuant to the regulatory compliance policies of such Associate; provided\nthat, in each such case, the party so retaining such Confidential Information shall exercise reasonable care in protecting the confidentiality of such\nConfidential Information from unauthorized use or disclosure.\n2. Nonpublicity. The existence and the terms of this Agreement, the Transaction contemplated hereby and the existence, nature and status\nof the discussions between the parties shall be treated as Confidential Information hereunder, shall be maintained in strict confidence by the parties\nhereto and by their respective Associates and shall not be disclosed to any third party.\n3. Required Disclosure. In the event that a receiving party or its Associates become legally compelled under applicable law, regulation or\nsecurities exchange listing agreement, or by a competent governmental, administrative or regulatory authority or in a proceeding before a court,\narbitrator or administrative agency to disclose any portion of the Confidential Information of a disclosing party, that discussions or negotiations\nbetween the parties hereto are taking place, or any of the terms, conditions or other facts with respect to the Transaction, including the status thereof,\nthe receiving party will, and will direct its Associates to, provide the disclosing party with prompt written notice (unless prohibited by law) of such\nlegal compulsion, and shall delay disclosure, if and to the extent permitted or practicable, until the disclosing party has had an opportunity to seek a\nprotective order or other appropriate remedy or to waive compliance by the receiving party and/or its Associates with the relevant provisions of this\nAgreement. In the event that a protective order or other remedy is not obtained in such a proceeding, or the disclosing party fails to waive\ncompliance with the relevant provisions of this Agreement, the receiving party agrees that it will, and will direct its Associates to, disclose only that\nConfidential Information of the disclosing party which its counsel advises is legally required to be disclosed and will exercise commercially\nreasonable efforts, and will direct its Associates to exercise their commercially reasonable efforts, at the request and expense of the disclosing party,\nto cooperate with the disclosing party to obtain reliable assurance that confidential treatment will be accorded the Confidential Information which is\nso disclosed.\n4. No License Granted. Nothing in this Agreement is intended to grant any rights to either party under any patent, copyright, trade secret or\nother intellectual property right nor shall this Agreement grant either party any rights in or to the other party's Confidential Information, except the\n2\nlimited right to review such Confidential Information solely for the purposes of determining whether to enter into, and the undertaking of or the\nadvising with respect to, a possible Transaction.\n5. No Representation of Accuracy. Each party acknowledges that neither the other party nor any of its Associates has made any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information made available by the other party\nor its Associates. Each party agrees that, except as set forth in a definitive agreement executed by the parties, neither party nor any of its Associates\nshall have any liability to the other party or to any of its Associates relating to or resulting from the use of such other party's Confidential\nInformation or any errors therein or omissions therefrom. Only those representations or warranties made in a definitive agreement, when, as and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n6. Standstill.\n(a) Until twelve (12) months from the date of this Agreement, without the prior written consent of the Company, neither HP nor any of\nits Affiliates will in any manner, directly or indirectly, (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause\nor participate in, (i) any acquisition of any issued and outstanding securities (or beneficial ownership thereof) of the Company or assets of the\nCompany or any of its subsidiaries (other than immaterial acquisitions of securities of the Company by individual Affiliates of HP who are\nnot controlled by HP and acquisitions of assets in the ordinary course of business); (ii) any tender or exchange offer, merger or other business\ncombination involving the Company; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with\nrespect to the Company; or (iv) any "solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and Exchange\nCommission) or consents to vote any voting securities of the Company; (b) form, join or in any way participate in a "group" (as defined\nunder the Securities Exchange Act of 1934, as amended (the "1934 Act")) with respect to the outstanding securities of the Company; (c)\notherwise act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of the Company;\n(d) take any action which might force the Company to make a public announcement regarding any of the types of matters set forth in (a)\nthrough (d) above; or (e) enter into any agreements with any third party with respect to any of the foregoing; provided, however, that HP\nshall not be required to obtain the prior written consent of the Company to engage in any of the foregoing actions following a Significant\nEvent (as defined below); provided further, that HP shall not be prohibited from making or discussing any offers regarding a transaction\ndescribed in clause (a)(i) above directly to or with the management or the Board of Directors of the Company, or their designated\nrepresentatives.\n(b) As used herein, the following terms shall have the following meanings:\n(i) "Significant Event" shall mean any of (i) the acquisition by a person, entity or 13D Group (as defined below), other than\nHP, of beneficial ownership of voting stock of the Company (the "Voting Stock") representing fifteen percent (15%) or more of the\nthen-outstanding Voting Stock; (ii) the announcement or commencement by a person, entity or 13D Group, other than HP, of a tender\nor exchange offer to acquire Voting Stock which, if successful, would result in such person, entity or 13D Group owning, when\ncombined with any other Voting Stock owned by such person, entity or 13D Group, fifteen percent (15%) or more of the then-\noutstanding Voting Stock; or (iii) the entering into by the Company, or publicly announced determination by the Company to seek to\nenter into, any merger, sale or other business combination transaction, other than a transaction with HP, pursuant to which (A) the\noutstanding shares of common stock of the Company (the "Common Stock") would be converted into cash or securities of another\nperson, entity or 13D Group, other than HP, (B)\n3\nfifty percent (50%) or more of the then-current issued and outstanding shares of Common Stock would be owned by a person or\nentity other than the then-current holders of shares of Common Stock or (C) would result in all or substantially all of the Company's\nassets being sold to any person, entity or 13D Group, other than HP (unless the Company's stockholders immediately prior to such\nsale of all or substantially all of the Company's assets will hold Voting Stock representing at least fifty percent (50%) of the voting\npower of the person, entity or 13D Group purchasing such assets).\n(ii) "13D Group" shall mean any group of persons or entities formed for the purpose of acquiring, holding, voting or disposing\nof Voting Stock which would be required under Section 13(d) of the 1934 Act and the rules and regulations thereunder to file a\nstatement on Schedule 13D with the Securities and Exchange Commission as a "person" within the meaning of section 13(d)(3) of\nthe Exchange Act if such group beneficially owned voting securities representing more than five percent (5%) of the Total Voting\nPower.\n(iii) "Total Voting Power" shall mean the total number of votes which may be cast in the election of directors of the Company at\nany meeting of the stockholders of the Company, if all Voting Stock was represented and voted to the fullest extent possible at such\nmeeting, other than the votes that may be cast only upon the happening of a contingency that has not occurred as of the relevant time.\n7. Securities Law Compliance. Each party acknowledges that it is aware, and that it will advise its Associates who receive Confidential\nInformation of the other party, that the United States securities laws prohibit any person who has material, non public information concerning the\nmatters which are the subject of this Agreement from purchasing or selling securities of such other party (and options, warrants and rights relating\nthereto) or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person\nincluding, without limitation, any of such party's Associates, is likely to purchase or sell such securities; and each party agrees to fully comply with\nsuch laws.\n8. Definitive Agreements. Each party acknowledges and agrees that other than with respect to the matters specifically set forth herein, no\ncontract or agreement providing for any transaction of the type contemplated by this Agreement shall be deemed to exist between the parties unless\nand until a definitive agreement has been executed and delivered. The parties further agree that each party reserves the right, in its sole discretion, to\nreject any and all proposals made by the other party or any of its Associates with regard to a transaction between the parties, and to terminate\ndiscussions or negotiations at any time.\n9. Similar Products. Each disclosing party acknowledges that the receiving party or its Associates may currently or in the future be\ndeveloping information internally, or receiving information from other parties, that is similar to the disclosing party's Confidential Information.\nNothing in this Agreement will prohibit the receiving party or its Associates from developing, manufacturing, marketing, selling, servicing or\nsupporting or having developed, manufactured, marketed, sold, serviced or supported for it products, concepts, systems or techniques that are similar\nto or compete with the products, concepts, systems or techniques contemplated by or embodied in the disclosing party's Confidential Information,\nprovided that the receiving party and its Associates do not use any of the disclosing party's Confidential Information in connection with such\nactivities. Neither party nor its respective Associates shall have any obligation to limit or restrict the assignment of its respective employees or\nconsultants as a result of their having had access to Confidential Information of the other party or its Associates. The receiving party and its\nAssociates, if any, may use and disclose any Residuals for any purpose, except that no license to any patent, trademark, mask work or copyright of\nthe disclosing party is granted under this Section. Residuals means disclosed Confidential Information remembered by those individuals within the\nscope of the receiving party's obligations under this\n4\nAgreement who no longer have access to the disclosed Confidential Information. However, Residuals does not include any detailed financial or\npersonnel data, or the identity of the disclosing party.\n10. Term. The foregoing commitments of either party in this Agreement regarding the confidentiality and non-use of Confidential\nInformation shall survive any termination of discussions between the parties, and shall continue for a period of twelve (12) months following the\ndate of this Agreement.\n11. Notice. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in writing\nand shall be deemed properly given on the day of delivery if delivered by hand or facsimile (with confirmation of delivery), or on the first business\nday after being sent by registered overnight mail, return receipt requested, by overnight courier or overnight express delivery service or facsimile (in\neach case, with confirmation of delivery) to the address or facsimile telephone number set forth beneath the name of such party below (or to such\nother address or facsimile telephone number as such party shall have specified in a written notice given to the other parties hereto):\nif to HP:\nHewlett-Packard Company\n3000 Hanover Street\nPalo Alto, CA 94304\nAttn: General Counsel\nFax number: (650) 857-2012\nif to Company:\nOpsware Inc.\n599 N. Mathilda Avenue\nSunnyvale, CA 94085\nAttn : John O'Farrell\nFax number: (408) 904-6176\n12. Governing Law and Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the laws of the\nState of Delaware applicable to agreements made and to be performed within that state. Each of the parties hereby agree and irrevocably consent to\npersonal jurisdiction and venue in any federal or state court within Wilmington, Delaware, having subject matter jurisdiction, for the purposes of any\naction, suit or proceeding arising out of or relating to this agreement. To the fullest extent permitted by law, each of the parties hereby agree to waive\ntrial by jury in any action proceeding or counterclaim brought by or on behalf of either party with respect to any matter whatsoever relating to this\nAgreement.\n13. Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto and supersedes all other prior agreements\nand understandings, both written and oral, among or between any of the parties with respect to the subject matter hereof and thereof. All\nmodifications of, waivers of and amendments to this letter agreement must be in writing and signed by both parties hereto.\n14. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one instrument. Any counterpart signed by an authorized representative of a party and delivered to the other party by\ntelecopier shall be deemed an original counterpart and duly delivered.\n[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]\n5\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.\nOPSWARE INC.\nBy:\n/s/ JOHN O'FARRELL\nName:\nJohn O'Farrell\nTitle:\nEVP Bus. Dev.\nHEWLETT-PACKARD COMPANY\nBy:\n/s/ SANDEEP JOHRI\nName:\nSandeep Johri\nTitle:\nV.P. Strategy & Corp. Dev.\n6 7c6dc43af8d2b97e3918cd1ebf62f17e.pdf effective_date jurisdiction party term EX1A-6 MAT CTRCT 12 filename12.htm\nExhibit 1A-6F\nAMERICAN HOMEOWNER PRESERVATION\nINVENTION, NON-DISCLOSURE, AND NON-COMPETITION AGREEMENT\nThis is an Agreement, entered into on\n, 2018, by and among Jeremiah Kaye ("Executive") and , AHP Servicing, LLC (the\n"Company").\nBackground\nExecutive is employed by the Company, and the parties wish to set forth certain restrictions concerning confidential information,\ninventions, and competition.\nNOW, THEREFORE, intending to be legally bound and acknowledging the receipt of adequate consideration, the parties hereby agree as\nfollows:\n1. Confidential Information.\n1.1 Defined. For purposes of this Agreement, "Confidential Information" means all information not generally known to the public\nor in the mortgage industry, in spoken, printed, electronic or any other form or medium, relating to the Company or its business. Confidential\nInformation includes, but is not limited to, processes, methods, policies, plans, documents, strategies, agreements, transactions, negotiations,\nknow-how, trade secrets, computer software, applications, databases, manuals, records, supplier information, vendor information, financial\ninformation, accounting records, legal information, pricing information, credit information, personnel information, security procedures, market\nstudies, sales information, inventions, and customer information. Executive understands that the above list is not exhaustive, and that\nConfidential Information also includes other information that is marked or otherwise identified as confidential or proprietary, or that would\notherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which the information is known or\nused. Executive further understands that Confidential Information includes information developed by him in the course of his employment that\nmeets the definition of Confidential Information set forth above. Notwithstanding the foregoing, Confidential Information shall not include\ninformation that is generally available to and known by the public or in the mortgage industry, provided that the disclosure of such information to\nthe public or the mortgage industry was not the result of direct or indirect action of Executive (or one or more person(s) acting on Executive's\nbehalf) in violation of Executive's obligations pursuant to this Agreement.\n1.2 Disclosure and Use Restrictions. Executive shall (i) treat all Confidential Information as strictly confidential; (ii) not directly\nor indirectly disclose Confidential Information, or allow it to be disclosed, except as required in the performance of Executive's duties for the\nCompany; and (iii) not access or use any Confidential Information, and not copy any documents, records, files, media, or other resources\ncontaining any Confidential Information, or remove any such documents, records, files, media, or other resources from the premises or control of\nthe Company, except as required in the performance of Executive's duties for the Company. The preceding sentence shall not prohibit Executive\nfrom disclosing Confidential Information as required by applicable law or regulation, or pursuant to the valid order of a court of competent\njurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law,\nregulation, or order and, to the extent permitted by applicable law, Executive gives the Company prompt notice of such requirement.\n1.3\nOwnership of Property. All files, letters, memoranda, reports, records, data, sketches, drawings, and all other written,\nphotographic, or other tangible material containing Confidential Information, whether created by Executive or others, which shall come into his\ncustody or possession, shall be and are the exclusive property of the Company to be used by Executive only in the performance of his duties for\nthe Company. All such materials or copies thereof and all tangible property of the Company in the custody or possession of Executive shall be\ndelivered to the Company, upon the earlier of (i) a request by the Company or (ii) termination of Executive's employment by the Company. After\nsuch delivery, Executive shall not retain any such materials or copies thereof or any such tangible property; provided, that notwithstanding the\nforegoing Executive may retain records related to the terms and conditions of his employment and his ownership of equity interests in the\nCompany.\n1\n1.4\nInformation and Property of Others. The obligations of Executive under this section 1 shall apply to information and\nmaterials of customers and suppliers of the Company and other third parties who may have disclosed or entrusted the same to the Company or to\nExecutive.\n2. Inventions.\n2.1\nDisclosure. Executive will make full and prompt disclosure to the Company of all inventions, improvements, software, and\nother intellectual property, whether patentable or not, which are created, made, conceived or reduced to practice by Executive or under\nExecutive's direction or jointly with others during the period of his employment which relate to the then current or planned businesses of the\nCompany, whether or not during normal working hours or on the premises of the Company, or which are otherwise created, made, conceived or\nreduced to practice by Executive or under Executive's direction or jointly with others during the term of his employment using tools, equipment\nor other assets of the Company ("Developments").\n2.2\nAssignment. Executive agrees to assign, and upon development by Executive of any element of intellectual property does\nautomatically assign, to the Company, ownership of all United States and international copyrights, patents, and other intellectual property rights\nin each Development. Executive shall cooperate with the Company in obtaining, maintaining, and enforcing all intellectual property rights\nrelating to Developments, as the Company deems necessary or appropriate. This assignment is undertaken in part as a contingency against the\npossibility that any such Development, by operation of law, may not be considered a work made for hire by Executive for the Company.\nExecutive also hereby waives all claims to moral rights in any Developments.\n3.\nNon-Solicitation.\n3.1\nCustomers. For as long as he is performing services on behalf of the Company and for a period of twelve (12) months\nthereafter, Executive shall not initiate contact or communicate, directly or indirectly, with any entity for which the Company has provided\nmortgage servicing within the previous twelve (12) months in an effort to induce such person to use a different provider.\n3.2 Employees and Independent Contractors. For as long as he is performing services on behalf of the Company and for a period\nof twelve (12) months thereafter, Executive shall not hire any employees or individual independent contractors of the Company or its affiliates,\nor initiate contact or communicate, directly or indirectly, with any such persons in an effort to induce such persons to terminate their relationship\nwith the Company or its affiliates; provided, that the foregoing shall not apply with respect to employees and independent contractors who\nrespond to general advertisements regarding hiring of employees or engagement of independent contractors or respond to inquiries by\nindependent recruiting firms not resulting from direction to such firms to include employees or independent contractors of the Company in such\nsolicitation activities.\n4.\nNon-Competition. For as long as he is performing services on behalf of the Company and for a period of twelve (12) months thereafter,\nExecutive shall not participate, directly or indirectly, as an owner, employee, consultant, or otherwise, in any proprietorship, corporation,\npartnership, or other entity, engaged in purchasing or investing in "non-performing" distressed residential mortgage loans, provided that the\nforegoing shall not prohibit or restrict Executive from being an owner, employee, consultant, or otherwise, in any proprietorship, corporation,\npartnership, or other entity, which is engaged in the business of purchasing or investing in "nonperforming" distressed residential mortgage loans\namong multiple businesses so long as Executive is not personally involved in the operations of the business with respect to purchasing or\ninvesting in "non-performing" distressed residential mortgage loans. Due to the nature of the businesses conducted by the Company, Executive\nacknowledges that the foregoing restrictions shall have no geographic limitation.\n5.\nAcknowledgment. Executive represents and warrants that (i) his knowledge, skills and abilities are sufficient to permit his to earn a\nsatisfactory livelihood without violating any provision of this Agreement; (ii) the restrictions set forth in this Agreement are necessary to protect\nthe legitimate proprietary interests of the Company, and (iii) he has received adequate consideration for his agreement to the restrictions set forth\nherein, including but not limited to an equity interest in the Company.\n2\n6.\nRemedies. Executive acknowledges that a breach of this Agreement will cause great and irreparable injury and damage, which cannot\nbe reasonably or adequately compensated by money damages. Accordingly, Executive acknowledges that the remedies of injunction and specific\nperformance shall be available in the event of such a breach, in addition to money damages or other legal or equitable remedies. Any period of\nrestriction set forth in this Agreement shall be extended for a period of time equal to the duration of any breach or violation hereof.\n7.\nNotification. Any person employing Executive or evidencing any intention to employ Executive may be notified as to the existence and\nprovisions of this Agreement.\n8.\nSurvival. The provisions of this Agreement shall survive the expiration or termination of the relationship whereby Executive renders\nservices to the Company.\n9.\nModification of Covenants; Enforceability. In the event that any provision of this Agreement is held to be in any respect an\nunreasonable restriction, then the court so holding may modify the terms thereof, including the period of time during which it operates or the\ngeographic area to which it applies, or effect any other change to the extent necessary to render this Agreement enforceable, it being\nacknowledged by the parties that the representations and covenants set forth herein are of the essence to the relationship between the Company\nand Executive.\n10.\nNo Employment Contract. Nothing in this Agreement shall be construed as giving Executive the right to render services on behalf of\nthe Company or its affiliates for compensation. Except as otherwise provided in other written agreements, the Company may terminate their\nrelationship with Executive at will.\n11.\nMiscellaneous.\n11.1 Amendments; Waivers. No amendment, modification, or waiver of any provision of this Agreement shall be binding unless in\nwriting and signed by the party against whom the operation of such amendment, modification, or waiver is sought to be enforced. No delay in the\nexercise of any right shall be deemed a waiver thereof, nor shall the waiver of a right or remedy in a particular instance constitute a waiver of\nsuch right or remedy generally.\n11.2 Notices. Any notice or document required or permitted to be given under this Agreement may be given by a party or by its legal\ncounsel and shall be deemed to be given (i) one day after the date such notice is deposited with a commercial overnight delivery service with\ndelivery fees paid, to the principal business address of the Company or the address of Executive on file with the Company, as applicable; or (ii)\non the date transmitted by electronic mail to _______________ @ahpfund.com in the case of the Company and to __________________ in the\ncase of Executive, in each case with transmission receipt acknowledgment from the recipient by non-automated email response or other written\nconfirmation of receipt. A party may change its own notice address by giving notice satisfactory under this section.\n11.3 Governing Law. This Agreement shall be governed by the internal laws of Illinois without giving effect to the principles of\nconflicts of laws. Each party hereby consents to the personal jurisdiction of the Federal or Illinois courts located in or most geographically\nconvenient to Cook County, Illinois, and agrees that all disputes arising from this Agreement shall be prosecuted in such courts. Each party\nhereby agrees that any such court shall have in person jurisdiction over such party and consents to service of process by notice sent by regular\nmail to the address set forth above and/or by any means authorized by Illinois law.\n11.4 Language Construction. The language of this Agreement shall be construed in accordance with its fair meaning and not for or\nagainst any party. The parties acknowledge that each party and its counsel have reviewed and had the opportunity to participate in the drafting of\nthis Agreement and, accordingly, that the rule of construction that would resolve ambiguities in favor of non-drafting parties shall not apply to\nthe interpretation of this Agreement.\n3\n11.5 No Offer. The submission of this Agreement by any party for the review and/or execution by another party does not constitute\nan offer or reservation of rights for the benefit of any party. This Agreement shall become effective, and the parties shall become legally bound,\nonly if and when all parties have executed this Agreement.\n11.6 Signatures. This Agreement may be signed in counterparts, each of which shall be deemed to be a fully-executed original. An\noriginal signature transmitted by email shall be deemed to be original for purposes of this Agreement. This Agreement may be signed\nelectronically, e.g ., via DocuSign.\n11.7 Binding Effect. This Agreement shall inure to the benefit of the respective heirs, legal representatives and permitted assigns of\neach party, and shall be binding upon the heirs, legal representatives, successors and assigns of each party.\n11.8 Titles and Captions. All article, section and paragraph titles and captions contained in this Agreement are for convenience only\nand are not deemed a part of the context hereof.\n11.9 Pronouns and Plurals. All pronouns and any variations thereof are deemed to refer to the masculine, feminine, neuter, singular\nor plural as the identity of the person or persons may require.\n11.10 Days. Any period of days mandated under this Agreement shall be determined by reference to calendar days, not business days,\nexcept that any payments, notices, or other performance falling due on a Saturday, Sunday, or federal government holiday shall be considered\ntimely if paid, given, or performed on the next succeeding business day.\n11.11 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and\nsupersedes all prior agreements and understandings.\nIN WITNESS WHEREOF, the parties have signed this Agreement effective on the date first written above.\nAHP SERVICING LLC\nBy: __________________________\nName:\nTitle:\n/s/ Jeremiah Kaye\nJeremiah Kaye\n4 EX1A-6 MAT CTRCT 12 filename12.htm\nExhibit 1A-6F\nAMERICAN HOMEOWNER PRESERVATION\nINVENTION, NON-DISCLOSURE, AND NON-COMPETITION AGREEMENT\nThis is an Agreement, entered into on , 2018, by and among Jeremiah Kaye ("Executive") and , AHP Servicing, LLC (the\n"COmpflly_").\nBackground\nExecutive is employed by the Company, and the parties wish to set forth certain restrictions concerning confidential information,\ninventions, and competition.\nNOW, THEREFORE, intending to be legally bound and acknowledging the receipt of adequate consideration, the parties hereby agree as\nfollows:\n1. Confidential Information.\n1.1 Defined. For purposes of this Agreement, "Confidential Information" means all information not generally known to the public\nor in the mortgage industry, in spoken, printed, electronic or any other form or medium, relating to the Company or its business. Confidential\nInformation includes, but is not limited to, processes, methods, policies, plans, documents, strategies, agreements, transactions, negotiations,\nknow-how, trade secrets, computer software, applications, databases, manuals, records, supplier information, vendor information, financial\ninformation, accounting records, legal information, pricing information, credit information, personnel information, security procedures, market\nstudies, sales information, inventions, and customer information. Executive understands that the above list is not exhaustive, and that\nConfidential Information also includes other information that is marked or otherwise identified as confidential or proprietary, or that would\notherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which the information is known or\nused. Executive further understands that Confidential Information includes information developed by him in the course of his employment that\nmeets the definition of Confidential Information set forth above. Notwithstanding the foregoing, Confidential Information shall not include\ninformation that is generally available to and known by the public or in the mortgage industry, provided that the disclosure of such information to\nthe public or the mortgage industry was not the result of direct or indirect action of Executive (or one or more person(s) acting on Executive's\nbehalf) in violation of Executive's obligations pursuant to this Agreement.\n1.2 Disclosure and Use Restrictions. Executive shall (i) treat all Confidential Information as strictly confidential; (ii) not directly\nor indirectly disclose Confidential Information, or allow it to be disclosed, except as required in the performance of Executive's duties for the\nCompany; and (iii) not access or use any Confidential Information, and not copy any documents, records, files, media, or other resources\ncontaining any Confidential Information, or remove any such documents, records, files, media, or other resources from the premises or control of\nthe Company, except as required in the performance of Executive's duties for the Company. The preceding sentence shall not prohibit Executive\nfrom disclosing Confidential Information as required by applicable law or regulation, or pursuant to the valid order of a court of competent\njurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law,\nregulation, or order and, to the extent permitted by applicable law, Executive gives the Company prompt notice of such requirement.\n1.3 Ownership of Property. All files, letters, memoranda, reports, records, data, sketches, drawings, and all other written,\nphotographic, or other tangible material containing Confidential Information, whether created by Executive or others, which shall come into his\ncustody or possession, shall be and are the exclusive property of the Company to be used by Executive only in the performance of his duties for\nthe Company. All such materials or copies thereof and all tangible property of the Company in the custody or possession of Executive shall be\ndelivered to the Company, upon the earlier of (i) a request by the Company or (ii) termination of Executive's employment by the Company. After\nsuch delivery, Executive shall not retain any such materials or copies thereof or any such tangible property; provided, that notwithstanding the\nforegoing Executive may retain records related to the terms and conditions of his employment and his ownership of equity interests in the\nCompany.\n14 Information and Property of Others. The obligations of Executive under this section 1 shall apply to information and\nmaterials of customers and suppliers of the Company and other third parties who may have disclosed or entrusted the same to the Company or to\nExecutive.\n2. Inventions.\n2.1 Disclosure. Executive will make full and prompt disclosure to the Company of all inventions, improvements, software, and\nother intellectual property, whether patentable or not, which are created, made, conceived or reduced to practice by Executive or under\nExecutive's direction or jointly with others during the period of his employment which relate to the then current or planned businesses of the\nCompany, whether or not during normal working hours or on the premises of the Company, or which are otherwise created, made, conceived or\nreduced to practice by Executive or under Executive's direction or jointly with others during the term of his employment using tools, equipment\nor other assets of the Company ("Developments").\n2.2 Assignment. Executive agrees to assign, and upon development by Executive of any element of intellectual property does\nautomatically assign, to the Company, ownership of all United States and international copyrights, patents, and other intellectual property rights\nin each Development. Executive shall cooperate with the Company in obtaining, maintaining, and enforcing all intellectual property rights\nrelating to Developments, as the Company deems necessary or appropriate. This assignment is undertaken in part as a contingency against the\npossibility that any such Development, by operation of law, may not be considered a work made for hire by Executive for the Company.\nExecutive also hereby waives all claims to moral rights in any Developments.\n3. Non-Solicitation.\n3.1 Customers. For as long as he is performing services on behalf of the Company and for a period of twelve (12) months\nthereafter, Executive shall not initiate contact or communicate, directly or indirectly, with any entity for which the Company has provided\nmortgage servicing within the previous twelve (12) months in an effort to induce such person to use a different provider.\n3.2 Employees and Independent Contractors. For as long as he is performing services on behalf of the Company and for a period\nof twelve (12) months thereafter, Executive shall not hire any employees or individual independent contractors of the Company or its affiliates,\nor initiate contact or communicate, directly or indirectly, with any such persons in an effort to induce such persons to terminate their relationship\nwith the Company or its affiliates; provided, that the foregoing shall not apply with respect to employees and independent contractors who\nrespond to general advertisements regarding hiring of employees or engagement of independent contractors or respond to inquiries by\nindependent recruiting firms not resulting from direction to such firms to include employees or independent contractors of the Company in such\nsolicitation activities.\n4. Non-Competition. For as long as he is performing services on behalf of the Company and for a period of twelve (12) months thereafter,\nExecutive shall not participate, directly or indirectly, as an owner, employee, consultant, or otherwise, in any proprietorship, corporation,\npartnership, or other entity, engaged in purchasing or investing in "non-performing" distressed residential mortgage loans, provided that the\nforegoing shall not prohibit or restrict Executive from being an owner, employee, consultant, or otherwise, in any proprietorship, corporation,\npartnership, or other entity, which is engaged in the business of purchasing or investing in "nonperforming" distressed residential mortgage loans\namong multiple businesses so long as Executive is not personally involved in the operations of the business with respect to purchasing or\ninvesting in "non-performing" distressed residential mortgage loans. Due to the nature of the businesses conducted by the Company, Executive\nacknowledges that the foregoing restrictions shall have no geographic limitation.\n5. Acknowledgment. Executive represents and warrants that (i) his knowledge, skills and abilities are sufficient to permit his to earn a\nsatisfactory livelihood without violating any provision of this Agreement; (ii) the restrictions set forth in this Agreement are necessary to protect\nthe legitimate proprietary interests of the Company, and (iii) he has received adequate consideration for his agreement to the restrictions set forth\nherein, including but not limited to an equity interest in the Company.\n6. Remedies. Executive acknowledges that a breach of this Agreement will cause great and irreparable injury and damage, which cannot\nbe reasonably or adequately compensated by money damages. Accordingly, Executive acknowledges that the remedies of injunction and specific\nperformance shall be available in the event of such a breach, in addition to money damages or other legal or equitable remedies. Any period of\nrestriction set forth in this Agreement shall be extended for a period of time equal to the duration of any breach or violation hereof.\n7. Notification. Any person employing Executive or evidencing any intention to employ Executive may be notified as to the existence and\nprovisions of this Agreement.\n8. Survival. The provisions of this Agreement shall survive the expiration or termination of the relationship whereby Executive renders\nservices to the Company.\n9. Modification of Covenants; Enforceability. In the event that any provision of this Agreement is held to be in any respect an\nunreasonable restriction, then the court so holding may modify the terms thereof, including the period of time during which it operates or the\ngeographic area to which it applies, or effect any other change to the extent necessary to render this Agreement enforceable, it being\nacknowledged by the parties that the representations and covenants set forth herein are of the essence to the relationship between the Company\nand Executive.\n10. No Employment Contract. Nothing in this Agreement shall be construed as giving Executive the right to render services on behalf of\nthe Company or its affiliates for compensation. Except as otherwise provided in other written agreements, the Company may terminate their\nrelationship with Executive at will.\n11. Miscellaneous.\n11.1 Amendments; Waivers. No amendment, modification, or waiver of any provision of this Agreement shall be binding unless in\nwriting and signed by the party against whom the operation of such amendment, modification, or waiver is sought to be enforced. No delay in the\nexercise of any right shall be deemed a waiver thereof, nor shall the waiver of a right or remedy in a particular instance constitute a waiver of\nsuch right or remedy generally.\n11.2 Notices. Any notice or document required or permitted to be given under this Agreement may be given by a party or by its legal\ncounsel and shall be deemed to be given (i) one day after the date such notice is deposited with a commercial overnight delivery service with\ndelivery fees paid, to the principal business address of the Company or the address of Executive on file with the Company, as applicable; or (ii)\non the date transmitted by electronic mail to @ahpfund.com in the case of the Company and to in the\ncase of Executive, in each case with transmission receipt acknowledgment from the recipient by non-automated email response or other written\nconfirmation of receipt. A party may change its own notice address by giving notice satisfactory under this section.\n11.3 Governing Law. This Agreement shall be governed by the internal laws of Illinois without giving effect to the principles of\nconflicts of laws. Each party hereby consents to the personal jurisdiction of the Federal or Illinois courts located in or most geographically\nconvenient to Cook County, Illinois, and agrees that all disputes arising from this Agreement shall be prosecuted in such courts. Each party\nhereby agrees that any such court shall have in person jurisdiction over such party and consents to service of process by notice sent by regular\nmail to the address set forth above and/or by any means authorized by Illinois law.\n11.4 Language Construction. The language of this Agreement shall be construed in accordance with its fair meaning and not for or\nagainst any party. The parties acknowledge that each party and its counsel have reviewed and had the opportunity to participate in the drafting of\nthis Agreement and, accordingly, that the rule of construction that would resolve ambiguities in favor of non-drafting parties shall not apply to\nthe interpretation of this Agreement.\n11.5 No Offer. The submission of this Agreement by any party for the review and/or execution by another party does not constitute\nan offer or reservation of rights for the benefit of any party. This Agreement shall become effective, and the parties shall become legally bound,\nonly if and when all parties have executed this Agreement.\n11.6 Signatures. This Agreement may be signed in counterparts, each of which shall be deemed to be a fully-executed original. An\noriginal signature transmitted by email shall be deemed to be original for purposes of this Agreement. This Agreement may be signed\nelectronically, e.g., via DocuSign.\n11.7 Binding Effect. This Agreement shall inure to the benefit of the respective heirs, legal representatives and permitted assigns of\neach party, and shall be binding upon the heirs, legal representatives, successors and assigns of each party.\n11.8 Titles and Captions. All article, section and paragraph titles and captions contained in this Agreement are for convenience only\nand are not deemed a part of the context hereof.\n11.9 Pronouns and Plurals. All pronouns and any variations thereof are deemed to refer to the masculine, feminine, neuter, singular\nor plural as the identity of the person or persons may require.\n11.10 Days. Any period of days mandated under this Agreement shall be determined by reference to calendar days, not business days,\nexcept that any payments, notices, or other performance falling due on a Saturday, Sunday, or federal government holiday shall be considered\ntimely if paid, given, or performed on the next succeeding business day.\n11.11 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and\nsupersedes all prior agreements and understandings.\nIN WITNESS WHEREOF, the parties have signed this Agreement effective on the date first written above.\nAHP SERVICING LLC\n \nBy:\nName:\nTitle:\n[s/ Jeremiah Kaye\nJeremiah Kaye EX1A-6 MAT CTRCT 12 filenamel\nExhibit 1A-6F\nAMERICAN HOMEOWNER PRESERVATION\nINVENTION, NON-DISCLOSURE, AND NON-COMPETITION AGREEMENT\nThis is an Agreement entered into on\n2018, by and among Jeremiah Kaye ("Executive") and AHP Servicing, LLC (the\n"Company.").\nBackground\nExecutive is employed by the Company, and the parties wish to set forth certain restrictions concerning confidential information,\ninventions, and competition.\nNOW, THEREFORE, intending to be legally bound and acknowledging the receipt of adequate consideration, the parties hereby agree as\nfollows:\n1.\nConfidential Information.\n1.1\nDefined. For purposes of this Agreement, "Confidential Information" means all information not generally known to the public\nor in the mortgage industry, in spoken, printed, electronic or any other form or medium, relating to the Company or its business. Confidential\nInformation includes, but is not limited to, processes, methods, policies, plans, documents, strategies, agreements, transactions, negotiations,\nknow-how, trade secrets, computer software, applications, databases, manuals, records, supplier information, vendor information, financial\ninformation, accounting records, legal information, pricing information, credit information, personnel information, security procedures, market\nstudies, sales information, inventions, and customer information. Executive understands that the above list is not exhaustive, and that\nConfidential Information also includes other information that is marked or otherwise identified as confidential or proprietary, or that would\notherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which the information is known or\nused. Executive further understands that Confidential Information includes information developed by him in the course of his employment that\nmeets the definition of Confidential Information set forth above. Notwithstanding the foregoing, Confidential Information shall not include\ninformation\nthat is generally available to and known by the public or in the mortgage industry, provided that the disclosure of such information\nto\nthe public or the mortgage industry was not the result of direct or indirect action of Executive (or one or more person(s) acting on Executive's\nbehalf) in violation of Executive's obligations pursuant to this Agreement.\n1.2 Disclosure and Use Restrictions. Executive shall (i) treat all Confidential Information as strictly confidential; (ii) not directly\nor indirectly disclose Confidential Information, or allow it to be disclosed, except as required in the performance of Executive's duties for the\nCompany; and (iii) not access or use any Confidential Information, and not copy any documents, records, files, media, or other\nresources\ncontaining any Confidential Information, or remove any such documents, records, files, media, or other resources from the premises or control of\nthe Company, except as required in the performance of Executive's duties for the Company. The preceding sentence shall not prohibit Executive\nfrom\ndisclosing\nConfidential\nInformation\nas\nrequired\nby\napplicable\nlaw\nor\nregulation,\nor\npursuant\nto\nthe\nvalid\norder\nof\na\ncourt\nof\ncompetent\njurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law,\nregulation, or order and, to the extent permitted by applicable law, Executive gives the Company prompt notice of such requirement.\n1.3\nOwnership of Property. All files, letters, memoranda, reports, records, data, sketches, drawings, and all other written,\nphotographic, or other tangible material containing Confidential Information, whether created by Executive or others, which shall come into his\ncustody or possession, shall be and are the exclusive property of the Company to be used by Executive only in the performance of his duties for\nthe Company. All such materials or copies thereof and all tangible property of the Company in the custody or possession of Executive shall be\ndelivered to the Company, upon the earlier of (i) a request by the Company or (ii) termination of Executive's employment by the Company. After\nsuch delivery, Executive shall not retain any such materials or copies thereof or any such tangible property; provided, that notwithstanding the\nforegoing Executive may retain records related to the terms and conditions of his employment and his ownership of equity interests in the\nCompany.\n1\n1.4\nInformation and Property of Others. The obligations of Executive under this section 1 shall apply to information and\nmaterials of customers and suppliers of the Company and other third parties who may have disclosed or entrusted the same to the Company or to\nExecutive.\n2. Inventions.\n2.1\nDisclosure. Executive will make full and prompt disclosure to the Company of all inventions, improvements, software, and\nother intellectual property, whether patentable or not, which are created, made, conceived or reduced to practice by Executive or under\nExecutive's direction or jointly with others during the period of his employment which relate to the then current or planned businesses of the\nCompany, whether or not during normal working hours or on the premises of the Company, or which are otherwise created, made, conceived\nor\nreduced to practice by Executive or under Executive's direction or jointly with others during the term of his employment using tools, equipment\nor other assets of the Company ("Developments").\n2.2\nAssignment. Executive agrees to assign, and upon development by Executive of any element of intellectual property does\nautomatically assign, to the Company, ownership of all United States and international copyrights, patents, and other intellectual property rights\nin each Development. Executive shall cooperate with the Company in obtaining, maintaining, and enforcing all intellectual property rights\nrelating to Developments, as the Company deems necessary or appropriate. This assignment is undertaken in part as a contingency against the\npossibility that any such Development, by operation of law, may not be considered a work made for hire by Executive for the Company.\nExecutive also hereby waives all claims to moral rights in any Developments.\n3.\nNon-Solicitation.\n3.1\nCustomers. For as long as he is performing services on behalf of the Company and for a period of twelve (12) months\nthereafter, Executive shall not initiate contact or communicate, directly or indirectly, with any entity for which the Company has provided\nmortgage servicing within the previous twelve (12) months in an effort to induce such person to use a different provider.\n3.2 Employees and Independent Contractors. For as long as he is performing services on behalf of the Company and for a period\nof\ntwelve (12) months thereafter, Executive shall not hire any employees or individual independent contractors of the Company or its affiliates,\nor initiate contact or communicate, directly or indirectly, with any such persons in an effort to induce such persons to terminate their relationship\nwith\nthe\nCompany\nor\nits\naffiliates;\nprovided,\nthat\nthe\nforegoing\nshall\nnot\napply\nwith\nrespect\nto\nemployees\nand\nindependent\ncontractors\nwho\nrespond to general advertisements regarding hiring of employees or engagement of independent contractors or respond to inquiries by\nindependent recruiting firms not resulting from direction to such firms to include employees or independent contractors of the Company in such\nsolicitation activities.\n4.\nNon-Competition. For as long as he is performing services on behalf of the Company and for a period of twelve (12) months thereafter,\nExecutive shall not participate, directly or indirectly, as an owner, employee, consultant, or otherwise, in any proprietorship, corporation,\npartnership, or other entity, engaged in purchasing or investing in "non-performing" distressed residential mortgage loans, provided that the\nforegoing shall not prohibit or restrict Executive from being an owner, employee, consultant, or otherwise, in any proprietorship, corporation\npartnership, or other entity, which is engaged in the business of purchasing or investing in "nonperforming" distressed residential mortgage loans\namong multiple businesses so long as Executive is not personally involved in the operations of the business with respect to purchasing or\ninvesting in "non-performing" distressed residential mortgage loans. Due to the nature of the businesses conducted by the Company, Executive\nacknowledges that the foregoing restrictions shall have no geographic limitation.\n5.\nAcknowledgment. Executive represents and warrants that (i) his knowledge, skills and abilities are sufficient to permit his to earn a\nsatisfactory livelihood without violating any provision of this Agreement; (ii) the restrictions set forth in this Agreement are necessary to protect\nthe legitimate proprietary interests of the Company, and (iii) he has received adequate consideration for his agreement to the restrictions set forth\nherein, including but not limited to an equity interest in the Company.\n2\n6.\nRemedies. Executive acknowledges that a breach of this Agreement will cause great and irreparable injury and damage, which cannot\nbe reasonably or adequately compensated by money damages. Accordingly, Executive acknowledges that the remedies of injunction and specific\nperformance shall be available in the event of such a breach, in addition to money damages or other legal or equitable remedies. Any period\nof\nrestriction set forth in this Agreement shall be extended for a period of time equal to the duration of any breach or violation hereof.\n7.\nNotification. Any person employing Executive or evidencing any intention to employ Executive may be notified as to the existence and\nprovisions of this Agreement.\n8.\nSurvival. The provisions of this Agreement shall survive the expiration or termination of the relationship whereby Executive renders\nservices to the Company.\n9.\nModification of Covenants; Enforceability. In the event that any provision of this Agreement is held to be in any respect an\nunreasonable restriction, then the court so holding may modify the terms thereof, including the period of time during which it operates or the\ngeographic area to which it applies, or effect any other change to the extent necessary to render this Agreement enforceable, it being\nacknowledged by the parties that the representations and covenants set forth herein are of the essence to the relationship between the Company\nand Executive.\n10.\nNo Employment Contract. Nothing in this Agreement shall be construed as giving Executive the right to render services on behalf of\nthe Company or its affiliates for compensation. Except as otherwise provided in other written agreements, the Company may terminate their\nrelationship with Executive at will.\n11.\nMiscellaneous.\n11.1 Amendments; Waivers. No amendment, modification, or waiver of any provision of this Agreement shall be binding unless in\nwriting and signed by the party against whom the operation of such amendment, modification, or waiver is sought to be enforced. No delay in the\nexercise of any right shall be deemed a waiver thereof, nor shall the waiver of a right or remedy in a particular instance constitute a waiver\nof\nsuch right or remedy generally.\n11.2\nNotices. Any notice or document required or permitted to be given under this Agreement may be given by a party or by its legal\ncounsel\nand\nshall\nbe\ndeemed\nto\nbe\ngiven\n(i)\none\nday\nafter\nthe\ndate\nsuch\nnotice\nis\ndeposited\nwith\na\ncommercial\novernight\ndelivery\nservice\nwith\ndelivery fees paid, to the principal business address of the Company or the address of Executive on file with the Company, as applicable; or (ii)\non the date transmitted by electronic mail to @ahpfund.com in the case of the Company and to in the\ncase of Executive, in each case with transmission receipt acknowledgment from the recipient by non-automated email response or other written\nconfirmation of receipt. A party may change its own notice address by giving notice satisfactory under this section.\n11.3 Governing Law. This Agreement shall be governed by the internal laws of Illinois without giving effect to the principles of\nconflicts of laws. Each party hereby consents to the personal jurisdiction of the Federal or Illinois courts located in or most geographically\nconvenient to Cook County, Illinois, and agrees that all disputes arising from this Agreement shall be prosecuted in such courts. Each party\nhereby agrees that any such court shall have in person jurisdiction over such party and consents to service of process by notice sent by regular\nmail to the address set forth above and/or by any means authorized by Illinois law.\n11.4 Language Construction. The language of this Agreement shall be construed in accordance with its fair meaning and not for\nor\nagainst any party. The parties acknowledge that each party and its counsel have reviewed and had the opportunity to participate in the drafting of\nthis Agreement and, accordingly, that the rule of construction that would resolve ambiguities in favor of non-drafting parties shall not apply to\nthe interpretation of this Agreement.\n3\n11.5 No Offer. The submission of this Agreement by any party for the review and/or execution by another party does not constitute\nan offer or reservation of rights for the benefit of any party. This Agreement shall become effective, and the parties shall become legally bound,\nonly if and when all parties have executed this Agreement.\n11.6 Signatures. This Agreement may be signed in counterparts, each of which shall be deemed to be a fully-executed original. An\noriginal signature transmitted by email shall be deemed to be original for purposes of this Agreement. This Agreement may be signed\nelectronically, e.g., via DocuSign.\n11.7 Binding Effect. This Agreement shall inure to the benefit of the respective heirs, legal representatives and permitted assigns of\neach party, and shall be binding upon the heirs, legal representatives, successors and assigns of each party.\n11.8 Titles and Captions. All article, section and paragraph titles and captions contained in this Agreement are for convenience only\nand are not deemed a part of the context hereof.\n11.9 Pronouns and Plurals. All pronouns and any variations thereof are deemed to refer to the masculine, feminine, neuter, singular\nor plural as the identity of the person or persons may require.\n11.10 Days. Any period of days mandated under this Agreement shall be determined by reference to calendar days, not business days,\nexcept that any payments, notices, or other performance falling due on a Saturday, Sunday, or federal government holiday shall be considered\ntimely if paid, given, or performed on the next succeeding business day.\n11.11 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and\nsupersedes all prior agreements and understandings.\nIN WITNESS WHEREOF, the parties have signed this Agreement effective on the date first written above.\nAHP SERVICING LLC\nBy:\nName:\nTitle:\n/s/ Jeremiah Kaye\nJeremiah Kaye\n4 EX1A-6 MAT CTRCT 12 filename12.htm\nExhibit 1A-6F\nAMERICAN HOMEOWNER PRESERVATION\nINVENTION, NON-DISCLOSURE, AND NON-COMPETITION AGREEMENT\nThis is an Agreement, entered into on\n, 2018, by and among Jeremiah Kaye ("Executive") and , AHP Servicing, LLC (the\n"Company").\nBackground\nExecutive is employed by the Company, and the parties wish to set forth certain restrictions concerning confidential information,\ninventions, and competition.\nNOW, THEREFORE, intending to be legally bound and acknowledging the receipt of adequate consideration, the parties hereby agree as\nfollows:\n1. Confidential Information.\n1.1 Defined. For purposes of this Agreement, "Confidential Information" means all information not generally known to the public\nor in the mortgage industry, in spoken, printed, electronic or any other form or medium, relating to the Company or its business. Confidential\nInformation includes, but is not limited to, processes, methods, policies, plans, documents, strategies, agreements, transactions, negotiations,\nknow-how, trade secrets, computer software, applications, databases, manuals, records, supplier information, vendor information, financial\ninformation, accounting records, legal information, pricing information, credit information, personnel information, security procedures, market\nstudies, sales information, inventions, and customer information. Executive understands that the above list is not exhaustive, and that\nConfidential Information also includes other information that is marked or otherwise identified as confidential or proprietary, or that would\notherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which the information is known or\nused. Executive further understands that Confidential Information includes information developed by him in the course of his employment that\nmeets the definition of Confidential Information set forth above. Notwithstanding the foregoing, Confidential Information shall not include\ninformation that is generally available to and known by the public or in the mortgage industry, provided that the disclosure of such information to\nthe public or the mortgage industry was not the result of direct or indirect action of Executive (or one or more person(s) acting on Executive's\nbehalf) in violation of Executive's obligations pursuant to this Agreement.\n1.2 Disclosure and Use Restrictions. Executive shall (i) treat all Confidential Information as strictly confidential; (ii) not directly\nor indirectly disclose Confidential Information, or allow it to be disclosed, except as required in the performance of Executive's duties for the\nCompany; and (iii) not access or use any Confidential Information, and not copy any documents, records, files, media, or other resources\ncontaining any Confidential Information, or remove any such documents, records, files, media, or other resources from the premises or control of\nthe Company, except as required in the performance of Executive's duties for the Company. The preceding sentence shall not prohibit Executive\nfrom disclosing Confidential Information as required by applicable law or regulation, or pursuant to the valid order of a court of competent\njurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law,\nregulation, or order and, to the extent permitted by applicable law, Executive gives the Company prompt notice of such requirement.\n1.3\nOwnership of Property. All files, letters, memoranda, reports, records, data, sketches, drawings, and all other written,\nphotographic, or other tangible material containing Confidential Information, whether created by Executive or others, which shall come into his\ncustody or possession, shall be and are the exclusive property of the Company to be used by Executive only in the performance of his duties for\nthe Company. All such materials or copies thereof and all tangible property of the Company in the custody or possession of Executive shall be\ndelivered to the Company, upon the earlier of (i) a request by the Company or (ii) termination of Executive's employment by the Company. After\nsuch delivery, Executive shall not retain any such materials or copies thereof or any such tangible property; provided, that notwithstanding the\nforegoing Executive may retain records related to the terms and conditions of his employment and his ownership of equity interests in the\nCompany.\n1\n1.4\nInformation and Property of Others. The obligations of Executive under this section 1 shall apply to information and\nmaterials of customers and suppliers of the Company and other third parties who may have disclosed or entrusted the same to the Company or to\nExecutive.\n2. Inventions.\n2.1\nDisclosure. Executive will make full and prompt disclosure to the Company of all inventions, improvements, software, and\nother intellectual property, whether patentable or not, which are created, made, conceived or reduced to practice by Executive or under\nExecutive's direction or jointly with others during the period of his employment which relate to the then current or planned businesses of the\nCompany, whether or not during normal working hours or on the premises of the Company, or which are otherwise created, made, conceived or\nreduced to practice by Executive or under Executive's direction or jointly with others during the term of his employment using tools, equipment\nor other assets of the Company ("Developments").\n2.2\nAssignment. Executive agrees to assign, and upon development by Executive of any element of intellectual property does\nautomatically assign, to the Company, ownership of all United States and international copyrights, patents, and other intellectual property rights\nin each Development. Executive shall cooperate with the Company in obtaining, maintaining, and enforcing all intellectual property rights\nrelating to Developments, as the Company deems necessary or appropriate. This assignment is undertaken in part as a contingency against the\npossibility that any such Development, by operation of law, may not be considered a work made for hire by Executive for the Company.\nExecutive also hereby waives all claims to moral rights in any Developments.\n3.\nNon-Solicitation.\n3.1\nCustomers. For as long as he is performing services on behalf of the Company and for a period of twelve (12) months\nthereafter, Executive shall not initiate contact or communicate, directly or indirectly, with any entity for which the Company has provided\nmortgage servicing within the previous twelve (12) months in an effort to induce such person to use a different provider.\n3.2 Employees and Independent Contractors. For as long as he is performing services on behalf of the Company and for a period\nof twelve (12) months thereafter, Executive shall not hire any employees or individual independent contractors of the Company or its affiliates,\nor initiate contact or communicate, directly or indirectly, with any such persons in an effort to induce such persons to terminate their relationship\nwith the Company or its affiliates; provided, that the foregoing shall not apply with respect to employees and independent contractors who\nrespond to general advertisements regarding hiring of employees or engagement of independent contractors or respond to inquiries by\nindependent recruiting firms not resulting from direction to such firms to include employees or independent contractors of the Company in such\nsolicitation activities.\n4.\nNon-Competition. For as long as he is performing services on behalf of the Company and for a period of twelve (12) months thereafter,\nExecutive shall not participate, directly or indirectly, as an owner, employee, consultant, or otherwise, in any proprietorship, corporation,\npartnership, or other entity, engaged in purchasing or investing in "non-performing" distressed residential mortgage loans, provided that the\nforegoing shall not prohibit or restrict Executive from being an owner, employee, consultant, or otherwise, in any proprietorship, corporation,\npartnership, or other entity, which is engaged in the business of purchasing or investing in "nonperforming" distressed residential mortgage loans\namong multiple businesses so long as Executive is not personally involved in the operations of the business with respect to purchasing or\ninvesting in "non-performing" distressed residential mortgage loans. Due to the nature of the businesses conducted by the Company, Executive\nacknowledges that the foregoing restrictions shall have no geographic limitation.\n5.\nAcknowledgment. Executive represents and warrants that (i) his knowledge, skills and abilities are sufficient to permit his to earn a\nsatisfactory livelihood without violating any provision of this Agreement; (ii) the restrictions set forth in this Agreement are necessary to protect\nthe legitimate proprietary interests of the Company, and (iii) he has received adequate consideration for his agreement to the restrictions set forth\nherein, including but not limited to an equity interest in the Company.\n2\n6.\nRemedies. Executive acknowledges that a breach of this Agreement will cause great and irreparable injury and damage, which cannot\nbe reasonably or adequately compensated by money damages. Accordingly, Executive acknowledges that the remedies of injunction and specific\nperformance shall be available in the event of such a breach, in addition to money damages or other legal or equitable remedies. Any period of\nrestriction set forth in this Agreement shall be extended for a period of time equal to the duration of any breach or violation hereof.\n7.\nNotification. Any person employing Executive or evidencing any intention to employ Executive may be notified as to the existence and\nprovisions of this Agreement.\n8.\nSurvival. The provisions of this Agreement shall survive the expiration or termination of the relationship whereby Executive renders\nservices to the Company.\n9.\nModification of Covenants; Enforceability. In the event that any provision of this Agreement is held to be in any respect an\nunreasonable restriction, then the court so holding may modify the terms thereof, including the period of time during which it operates or the\ngeographic area to which it applies, or effect any other change to the extent necessary to render this Agreement enforceable, it being\nacknowledged by the parties that the representations and covenants set forth herein are of the essence to the relationship between the Company\nand Executive.\n10.\nNo Employment Contract. Nothing in this Agreement shall be construed as giving Executive the right to render services on behalf of\nthe Company or its affiliates for compensation. Except as otherwise provided in other written agreements, the Company may terminate their\nrelationship with Executive at will.\n11.\nMiscellaneous.\n11.1 Amendments; Waivers. No amendment, modification, or waiver of any provision of this Agreement shall be binding unless in\nwriting and signed by the party against whom the operation of such amendment, modification, or waiver is sought to be enforced. No delay in the\nexercise of any right shall be deemed a waiver thereof, nor shall the waiver of a right or remedy in a particular instance constitute a waiver of\nsuch right or remedy generally.\n11.2 Notices. Any notice or document required or permitted to be given under this Agreement may be given by a party or by its legal\ncounsel and shall be deemed to be given (i) one day after the date such notice is deposited with a commercial overnight delivery service with\ndelivery fees paid, to the principal business address of the Company or the address of Executive on file with the Company, as applicable; or (ii)\non the date transmitted by electronic mail to _______________ @ahpfund.com in the case of the Company and to __________________ in the\ncase of Executive, in each case with transmission receipt acknowledgment from the recipient by non-automated email response or other written\nconfirmation of receipt. A party may change its own notice address by giving notice satisfactory under this section.\n11.3 Governing Law. This Agreement shall be governed by the internal laws of Illinois without giving effect to the principles of\nconflicts of laws. Each party hereby consents to the personal jurisdiction of the Federal or Illinois courts located in or most geographically\nconvenient to Cook County, Illinois, and agrees that all disputes arising from this Agreement shall be prosecuted in such courts. Each party\nhereby agrees that any such court shall have in person jurisdiction over such party and consents to service of process by notice sent by regular\nmail to the address set forth above and/or by any means authorized by Illinois law.\n11.4 Language Construction. The language of this Agreement shall be construed in accordance with its fair meaning and not for or\nagainst any party. The parties acknowledge that each party and its counsel have reviewed and had the opportunity to participate in the drafting of\nthis Agreement and, accordingly, that the rule of construction that would resolve ambiguities in favor of non-drafting parties shall not apply to\nthe interpretation of this Agreement.\n3\n11.5 No Offer. The submission of this Agreement by any party for the review and/or execution by another party does not constitute\nan offer or reservation of rights for the benefit of any party. This Agreement shall become effective, and the parties shall become legally bound,\nonly if and when all parties have executed this Agreement.\n11.6 Signatures. This Agreement may be signed in counterparts, each of which shall be deemed to be a fully-executed original. An\noriginal signature transmitted by email shall be deemed to be original for purposes of this Agreement. This Agreement may be signed\nelectronically, e.g ., via DocuSign.\n11.7 Binding Effect. This Agreement shall inure to the benefit of the respective heirs, legal representatives and permitted assigns of\neach party, and shall be binding upon the heirs, legal representatives, successors and assigns of each party.\n11.8 Titles and Captions. All article, section and paragraph titles and captions contained in this Agreement are for convenience only\nand are not deemed a part of the context hereof.\n11.9 Pronouns and Plurals. All pronouns and any variations thereof are deemed to refer to the masculine, feminine, neuter, singular\nor plural as the identity of the person or persons may require.\n11.10 Days. Any period of days mandated under this Agreement shall be determined by reference to calendar days, not business days,\nexcept that any payments, notices, or other performance falling due on a Saturday, Sunday, or federal government holiday shall be considered\ntimely if paid, given, or performed on the next succeeding business day.\n11.11 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and\nsupersedes all prior agreements and understandings.\nIN WITNESS WHEREOF, the parties have signed this Agreement effective on the date first written above.\nAHP SERVICING LLC\nBy: __________________________\nName:\nTitle:\n/s/ Jeremiah Kaye\nJeremiah Kaye\n4 7d0609e79512805f21a1c96ed751dd56.pdf effective_date jurisdiction party term EX-99.(D)(4) 14 dex99d4.htm MUTUAL CONFIDENTIALITY AGREEMENT, DATED AS OF MAY 14, 2003\nBETWEEN FLEXSTEEL AND\nMUTUAL CONFIDENTIALITY AGREEMENT\nTHIS MUTUAL CONFIDENTIALITY AGREEMENT (the “Agreement”) is made and entered into as of the 14th day of May 2003, by\nand between Flexsteel Industries, Inc., and DMI Furniture, Inc.\nRECITALS:\nA. The parties have had, or are interested in entering into, discussions regarding a potential business relationship.\nB. In the course of such discussions and/or during such relationship, each party (a “Receiving Party”) has had or will have access to\nConfidential Information (as hereinafter defined) belonging to the other party hereto (a “Disclosing Party”) with the understanding and agreement\nthat such Confidential Information will be kept strictly confidential, and the parties now wish to confirm their understanding and agreement in\nwriting.\nTHEREFORE, in consideration of the premises and covenants set forth herein, and for other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, it is hereby agreed as follows:\n1. As used in this Agreement, the term “Confidential Information” means all information, whether oral, written or otherwise, belonging\nto or concerning a Disclosing Party, its affiliates, or its clients or customers, including, without limitation, strategic, marketing and business plans,\nmodels, and initiatives, computer programs, research and development projects, financial information, identities of, and other information with\nrespect to the Disclosing Party’s suppliers, clients and customers, trade secrets, and other nonpublic aspects of the Disclosing Party’s business, which\nsuch Disclosing Party or its representatives provided or provide at any time to a Receiving Party or any of its representatives and is identified as\n“Confidential” by the Disclosing Party in writing to the Receiving Party at the time of disclosure. It includes, without limitation, analyses,\ncompilations, studies and other documents, in whatever form, which are based upon, incorporate or otherwise reflect such Confidential Information\nthat has been so identified. The term Confidential Information does not include information that would otherwise be Confidential Information if (a)\nsuch information has become or hereafter becomes generally available to the public other than as a result of a disclosure by the Receiving Party or\nany of its representatives, (b) such information is furnished to the Receiving Party on a nonconfidential basis from a source other than the Disclosing\nParty, or (c) such information is within the Receiving Party’s possession prior to its being furnished to such Receiving Party by the Disclosing Party.\n2. All Confidential Information shall be held and treated by the Receiving Party and its representatives in confidence and will not, except\nas hereinafter expressly permitted, be disclosed or used by the Receiving Party or its representatives other than in connection with the Receiving\nParty’s consideration of a potential business relationship with the Disclosing Party and as necessary in the course of the parties’ business\nrelationship. The Receiving Party shall disclose Confidential Information only to its representatives (a) who need to know the Confidential\nInformation in connection with the relationship between the parties, (b) who are informed of the confidential nature of the information the Receiving\nParty discloses to them, and (c) who are under an obligation of confidentiality to the Receiving Party.\n3. Both parties agree, in addition to and not in limitation of, any of the rights, remedies or damages otherwise available, at law or in\nequity, each shall be entitled to injunctive relief in order to prevent or restrain any breach of this Confidentiality Agreement without the necessity of\nposting any bond or other security. This relief is necessary due to the fact that future damages to either party are indeterminable and not subject to\nexact measure. Such remedies shall not be exclusive and either party may seek any other remedy available at law or in equity.\n4. Each of the parties agrees that it will not hire any of the current employees of the other for a period of two (2) years from the date of\nthis Agreement, except by express written permission of the other party.\n5. The parties agree that if either of them violates this Agreement, and the other party is forced to enforce the Agreement, the\nnonbreaching party shall be entitled to recover all reasonable attorney’s fees and court costs necessary to enforce the term of this Agreement from\nthe breaching party.\n6. In the event either party notifies the other that it does not want to continue discussions or proceed with a business relationship, all\nwritten Confidential Information, including all copies thereof, provided by each Disclosing Party will be returned to such Disclosing Party or\ndestroyed immediately upon written request of the Disclosing Party. If a Receiving Party is requested or required to disclose any Confidential\nInformation, such Receiving Party will provide the Disclosing Party with prompt written notice of such request or requirement so that the Disclosing\nParty may seek an appropriate protective order or other remedy and/or waive its rights under this Agreement with respect to that portion of the\nConfidential Information which comes within the scope of the request or requirement. If, in the absence of a protective order, the Receiving Party is\ncompelled to disclose any Confidential Information, it may disclose such information without liability under this Agreement.\n7. The covenants and agreements herein shall survive the termination of discussions or any business relationship between the parties and\nshall remain in full force and effect with respect to any information until the same ceases to be Confidential Information as defined above. The\nvalidity, construction, and enforceability of this Agreement shall be governed in all respects by the laws of the United States and State of Minnesota\napplicable to agreements made and to be performed entirely within the State of Minnesota, without regard to the principles of comity or conflicts of\nlaws of the State of Minnesota or any other state.\n8. This Agreement is not intended to supersede the provisions of the Confidentiality Agreement between the parties dated November 27,\n2002, which remains in full force and effect.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.\nFLEXSTEEL INDUSTRIES, INC.\nDMI FURNITURE, INC.\nBy:\n/s/ K. BRUCE LAURITSEN\nBy:\n/s/ DONALD D. DREHER\nK. Bruce Lauritsen\nPresident & Chief Executive Officer\nDonald D. Dreher\nPresident & Chief Executive Officer EX-99.(D)(4) 14 dex99d4.htm MUTUAL CONFIDENTIALITY AGREEMENT, DATED AS OF MAY 14, 2003\nBETWEEN FLEXSTEEL AND\nMUTUAL CONFIDENTIALITY AGREEMENT\nTHIS MUTUAL CONFIDENTIALITY AGREEMENT (the “Agreement”) is made and entered into as of the 14th day of May 2003, by\nand between Flexsteel Industries, Inc., and DMI Furniture, Inc.\nRECITALS:\nA. The parties have had, or are interested in entering into, discussions regarding a potential business relationship.\nB. In the course of such discussions and/or during such relationship, each party (a “Receiving Party”) has had or will have access to\nConfidential Information (as hereinafter defined) belonging to the other party hereto (a “Disclosing Party”) with the understanding and agreement\nthat such Confidential Information will be kept strictly confidential, and the parties now wish to confirm their understanding and agreement in\nwriting.\nTHEREFORE, in consideration of the premises and covenants set forth herein, and for other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, it is hereby agreed as follows:\n1. As used in this Agreement, the term “Confidential Information” means all information, whether oral, written or otherwise, belonging\nto or concerning a Disclosing Party, its affiliates, or its clients or customers, including, without limitation, strategic, marketing and business plans,\nmodels, and initiatives, computer programs, research and development projects, financial information, identities of, and other information with\nrespect to the Disclosing Party’s suppliers, clients and customers, trade secrets, and other nonpublic aspects of the Disclosing Party’s business, which\nsuch Disclosing Party or its representatives provided or provide at any time to a Receiving Party or any of its representatives and is identified as\n“Confidential” by the Disclosing Party in writing to the Receiving Party at the time of disclosure. It includes, without limitation, analyses,\ncompilations, studies and other documents, in whatever form, which are based upon, incorporate or otherwise reflect such Confidential Information\nthat has been so identified. The term Confidential Information does not include information that would otherwise be Confidential Information if (a)\nsuch information has become or hereafter becomes generally available to the public other than as a result of a disclosure by the Receiving Party or\nany of its representatives, (b) such information is furnished to the Receiving Party on a nonconfidential basis from a source other than the Disclosing\nParty, or (c) such information is within the Receiving Party’s possession prior to its being furnished to such Receiving Party by the Disclosing Party.\n2. All Confidential Information shall be held and treated by the Receiving Party and its representatives in confidence and will not, except\nas hereinafter expressly permitted, be disclosed or used by the Receiving Party or its representatives other than in connection with the Receiving\nParty’s consideration of a potential business relationship with the Disclosing Party and as necessary in the course of the parties’ business\nrelationship. The Receiving Party shall disclose Confidential Information only to its representatives (a) who need to know the Confidential\nInformation in connection with the relationship between the parties, (b) who are informed of the confidential nature of the information the Receiving\nParty discloses to them, and (c) who are under an obligation of confidentiality to the Receiving Party.\n3. Both parties agree, in addition to and not in limitation of, any of the rights, remedies or damages otherwise available, at law or in\nequity, each shall be entitled to injunctive relief in order to prevent or restrain any breach of this Confidentiality Agreement without the necessity of\nposting any bond or other security. This relief is necessary due to the fact that future damages to either party are indeterminable and not subject to\nexact measure. Such remedies shall not be exclusive and either party may seek any other remedy available at law or in equity.\n4. Each of the parties agrees that it will not hire any of the current employees of the other for a period of two (2) years from the date of\nthis Agreement, except by express written permission of the other party.\n5. The parties agree that if either of them violates this Agreement, and the other party is forced to enforce the Agreement, the\nnonbreaching party shall be entitled to recover all reasonable attorney’s fees and court costs necessary to enforce the term of this Agreement from\nthe breaching party.\n6. In the event either party notifies the other that it does not want to continue discussions or proceed with a business relationship, all\nwritten Confidential Information, including all copies thereof, provided by each Disclosing Party will be returned to such Disclosing Party or\ndestroyed immediately upon written request of the Disclosing Party. If a Receiving Party is requested or required to disclose any Confidential\nInformation, such Receiving Party will provide the Disclosing Party with prompt written notice of such request or requirement so that the Disclosing\nParty may seek an appropriate protective order or other remedy and/or waive its rights under this Agreement with respect to that portion of the\nConfidential Information which comes within the scope of the request or requirement. If, in the absence of a protective order, the Receiving Party is\ncompelled to disclose any Confidential Information, it may disclose such information without liability under this Agreement.\n7. The covenants and agreements herein shall survive the termination of discussions or any business relationship between the parties and\nshall remain in full force and effect with respect to any information until the same ceases to be Confidential Information as defined above. The\nvalidity, construction, and enforceability of this Agreement shall be governed in all respects by the laws of the United States and State of Minnesota\napplicable to agreements made and to be performed entirely within the State of Minnesota, without regard to the principles of comity or conflicts of\nlaws of the State of Minnesota or any other state.\n8. This Agreement is not intended to supersede the provisions of the Confidentiality Agreement between the parties dated November 27,\n2002, which remains in full force and effect.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.\nFLEXSTEEL INDUSTRIES, INC. DMI FURNITURE, INC.\nBy: /s/ K.BRUCE LAURITSEN By: /s/ DONALD D. DREHER\nK. Bruce Lauritsen Donald D. Dreher\nPresident & Chief Executive Officer President & Chief Executive Officer EX-99.(D)(4) 14 dex99d4.htm MUTUAL CONFIDENTIALITY AGREEMENT, DATED AS OF MAY 14, 2003\nBETWEEN FLEXSTEEL AND\nMUTUAL CONFIDENTIALITY AGREEMENT\nTHIS MUTUAL CONFIDENTIALITY AGREEMENT (the "Agreement") is made and entered into as of the 14th day of May 2003, by\nand between Flexsteel Industries, Inc., and DMI Furniture, Inc.\nRECITALS:\nA. The parties have had, or are interested in entering into, discussions regarding a potential business relationship.\nB. In the course of such discussions and/or during such relationship, each party (a "Receiving Party") has had or will have access to\nConfidential Information (as hereinafter defined) belonging to the other party hereto (a "Disclosing Party") with the understanding and agreement\nthat such Confidential Information will be kept strictly confidential, and the parties now wish to confirm their understanding and agreement in\nwriting.\nTHEREFORE, in consideration of the premises and covenants set forth herein, and for other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, it is hereby agreed as follows:\n1. As used in this Agreement, the term "Confidential Information" means all information, whether oral, written or otherwise, belonging\nto or concerning a Disclosing Party, its affiliates, or its clients or customers, including, without limitation, strategic, marketing and business plans,\nmodels, and initiatives, computer programs, research and development projects, financial information, identities of, and other information with\nrespect to the Disclosing Party's suppliers, clients and customers, trade secrets, and other nonpublic aspects of the Disclosing Party's business, which\nsuch Disclosing Party or its representatives provided or provide at any time to a Receiving Party or any of its representatives and is identified as\n"Confidential" by the Disclosing Party in writing to the Receiving Party at the time of disclosure. It includes, without limitation, analyses,\ncompilations, studies and other documents, in whatever form, which are based upon, incorporate or otherwise reflect such Confidential Information\nthat\nhas been so identified. The term Confidential Information does not include information that would otherwise be Confidential Information if (a)\nsuch information has become or hereafter becomes generally available to the public other than as a result of a disclosure by the Receiving Party or\nany of its representatives, (b) such information is furnished to the Receiving Party on a nonconfidential basis from a source other than the Disclosing\nParty, or (c) such information is within the Receiving Party's possession prior to its being furnished to such Receiving Party by the Disclosing Party.\n2. All Confidential Information shall be held and treated by the Receiving Party and its representatives in confidence and will not, except\nas hereinafter expressly permitted, be disclosed or used by the Receiving Party or its representatives other than in connection with the Receiving\nParty's consideration of a potential business relationship with the Disclosing Party and as necessary in the course of the parties' business\nrelationship. The Receiving Party shall disclose Confidential Information only to its representatives (a) who need to know the Confidential\nInformation in connection with the relationship between the parties, (b) who are informed of the confidential nature of the information the Receiving\nParty discloses to them, and (c) who are under an obligation of confidentiality to the Receiving Party.\n3. Both parties agree, in addition to and not in limitation of, any of the rights, remedies or damages otherwise available, at law or in\nequity, each shall be entitled to injunctive relief in order to prevent or restrain any breach of this Confidentiality Agreement without the necessity of\nposting any bond or other security. This relief is necessary due to the fact that future damages to either party are indeterminable and not subject to\nexact measure. Such remedies shall not be exclusive and either party may seek any other remedy available at law or in equity.\n4. Each of the parties agrees that it will not hire any of the current employees of the other for a period of two (2) years from the\ndate\nof\nthis Agreement, except by express written permission of the other party.\n5. The parties agree that if either of them violates this Agreement, and the other party is forced to enforce the Agreement, the\nnonbreaching party shall be entitled to recover all reasonable attorney's fees and court costs necessary to enforce the term of this Agreement from\nthe breaching party.\n6. In the event either party notifies the other that it does not want to continue discussions or proceed with a business relationship, all\nwritten Confidential Information, including all copies thereof, provided by each Disclosing Party will be returned to such Disclosing Party or\ndestroyed immediately upon written request of the Disclosing Party. If a Receiving Party is requested or required to disclose any Confidential\nInformation, such Receiving Party will provide the Disclosing Party with prompt written notice of such request or requirement so that the Disclosing\nParty may seek an appropriate protective order or other remedy and/or waive its rights under this Agreement with respect to that portion of the\nConfidential Information which comes within the scope of the request or requirement. If, in the absence of a protective order, the Receiving Party\nis\ncompelled to disclose any Confidential Information, it may disclose such information without liability under this Agreement.\n7. The covenants and agreements herein shall survive the termination of discussions or any business relationship between the parties and\nshall remain in full force and effect with respect to any information until the same ceases to be Confidential Information as defined above. The\nvalidity, construction, and enforceability of this Agreement shall be governed in all respects by the laws of the United States and State of Minnesota\napplicable to agreements made and to be performed entirely within the State of Minnesota, without regard to the principles of comity or conflicts of\nlaws of the State of Minnesota or any other state.\n8. This Agreement is not intended to supersede the provisions of the Confidentiality Agreement between the parties dated November 27,\n2002, which remains in full force and effect.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.\nFLEXSTEEL INDUSTRIES, INC.\nDMI FURNITURE, INC.\nBy:\n/s/ K. BRUCE LAURITSEN\nBy:\n/s/ DONALD D. DREHER\nK. Bruce Lauritsen\nDonald D. Dreher\nPresident & Chief Executive Officer\nPresident & Chief Executive Officer EX-99.(D)(4) 14 dex99d4.htm MUTUAL CONFIDENTIALITY AGREEMENT, DATED AS OF MAY 14, 2003\nBETWEEN FLEXSTEEL AND\nMUTUAL CONFIDENTIALITY AGREEMENT\nTHIS MUTUAL CONFIDENTIALITY AGREEMENT (the “Agreement”) is made and entered into as of the 14th day of May 2003, by\nand between Flexsteel Industries, Inc., and DMI Furniture, Inc.\nRECITALS:\nA. The parties have had, or are interested in entering into, discussions regarding a potential business relationship.\nB. In the course of such discussions and/or during such relationship, each party (a “Receiving Party”) has had or will have access to\nConfidential Information (as hereinafter defined) belonging to the other party hereto (a “Disclosing Party”) with the understanding and agreement\nthat such Confidential Information will be kept strictly confidential, and the parties now wish to confirm their understanding and agreement in\nwriting.\nTHEREFORE, in consideration of the premises and covenants set forth herein, and for other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, it is hereby agreed as follows:\n1. As used in this Agreement, the term “Confidential Information” means all information, whether oral, written or otherwise, belonging\nto or concerning a Disclosing Party, its affiliates, or its clients or customers, including, without limitation, strategic, marketing and business plans,\nmodels, and initiatives, computer programs, research and development projects, financial information, identities of, and other information with\nrespect to the Disclosing Party’s suppliers, clients and customers, trade secrets, and other nonpublic aspects of the Disclosing Party’s business, which\nsuch Disclosing Party or its representatives provided or provide at any time to a Receiving Party or any of its representatives and is identified as\n“Confidential” by the Disclosing Party in writing to the Receiving Party at the time of disclosure. It includes, without limitation, analyses,\ncompilations, studies and other documents, in whatever form, which are based upon, incorporate or otherwise reflect such Confidential Information\nthat has been so identified. The term Confidential Information does not include information that would otherwise be Confidential Information if (a)\nsuch information has become or hereafter becomes generally available to the public other than as a result of a disclosure by the Receiving Party or\nany of its representatives, (b) such information is furnished to the Receiving Party on a nonconfidential basis from a source other than the Disclosing\nParty, or (c) such information is within the Receiving Party’s possession prior to its being furnished to such Receiving Party by the Disclosing Party.\n2. All Confidential Information shall be held and treated by the Receiving Party and its representatives in confidence and will not, except\nas hereinafter expressly permitted, be disclosed or used by the Receiving Party or its representatives other than in connection with the Receiving\nParty’s consideration of a potential business relationship with the Disclosing Party and as necessary in the course of the parties’ business\nrelationship. The Receiving Party shall disclose Confidential Information only to its representatives (a) who need to know the Confidential\nInformation in connection with the relationship between the parties, (b) who are informed of the confidential nature of the information the Receiving\nParty discloses to them, and (c) who are under an obligation of confidentiality to the Receiving Party.\n3. Both parties agree, in addition to and not in limitation of, any of the rights, remedies or damages otherwise available, at law or in\nequity, each shall be entitled to injunctive relief in order to prevent or restrain any breach of this Confidentiality Agreement without the necessity of\nposting any bond or other security. This relief is necessary due to the fact that future damages to either party are indeterminable and not subject to\nexact measure. Such remedies shall not be exclusive and either party may seek any other remedy available at law or in equity.\n4. Each of the parties agrees that it will not hire any of the current employees of the other for a period of two (2) years from the date of\nthis Agreement, except by express written permission of the other party.\n5. The parties agree that if either of them violates this Agreement, and the other party is forced to enforce the Agreement, the\nnonbreaching party shall be entitled to recover all reasonable attorney’s fees and court costs necessary to enforce the term of this Agreement from\nthe breaching party.\n6. In the event either party notifies the other that it does not want to continue discussions or proceed with a business relationship, all\nwritten Confidential Information, including all copies thereof, provided by each Disclosing Party will be returned to such Disclosing Party or\ndestroyed immediately upon written request of the Disclosing Party. If a Receiving Party is requested or required to disclose any Confidential\nInformation, such Receiving Party will provide the Disclosing Party with prompt written notice of such request or requirement so that the Disclosing\nParty may seek an appropriate protective order or other remedy and/or waive its rights under this Agreement with respect to that portion of the\nConfidential Information which comes within the scope of the request or requirement. If, in the absence of a protective order, the Receiving Party is\ncompelled to disclose any Confidential Information, it may disclose such information without liability under this Agreement.\n7. The covenants and agreements herein shall survive the termination of discussions or any business relationship between the parties and\nshall remain in full force and effect with respect to any information until the same ceases to be Confidential Information as defined above. The\nvalidity, construction, and enforceability of this Agreement shall be governed in all respects by the laws of the United States and State of Minnesota\napplicable to agreements made and to be performed entirely within the State of Minnesota, without regard to the principles of comity or conflicts of\nlaws of the State of Minnesota or any other state.\n8. This Agreement is not intended to supersede the provisions of the Confidentiality Agreement between the parties dated November 27,\n2002, which remains in full force and effect.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.\nFLEXSTEEL INDUSTRIES, INC.\nDMI FURNITURE, INC.\nBy:\n/s/ K. BRUCE LAURITSEN\nBy:\n/s/ DONALD D. DREHER\nK. Bruce Lauritsen\nPresident & Chief Executive Officer\nDonald D. Dreher\nPresident & Chief Executive Officer 7e7d64c4020fe273508f203e609b8ad8.pdf effective_date jurisdiction party term EX-10.2 7 dex102.htm CONFIDENTIALITY AGREEMENT\nExhibit 10.2\nSeawell Limited\n14-Par-laVille Road\nHamilton HMGX\nBermuda\nRegistration no. 40612\nCONFIDENTIAL\nJune 23, 2010\nAllis-Chalmers Energy Inc.\nAttn.: Mr. Munawar H. Hidayatallah\nChairman and Chief Executive Officer\n5075 Westheimer, Suite 890\nHouston, Texas 77056\nRe: Confidentiality Agreement\nLadies and Gentlemen:\nAs we have discussed, Allis-Chalmers Energy Inc., a Delaware corporation (“Allis-Chalmers,” which term shall, for purposes of this letter\nagreement (“Agreement”), include its subsidiaries), and Seawell Limited, a Bermuda company (“Parent,” which term shall, for purposes of this\nAgreement, include its subsidiaries) (each a “Party” and collectively, the “Parties”), are considering entering into discussions in order to evaluate a\npossible strategic transaction between the Parties (the “Potential Transaction”). For the purposes of the evaluation of the Potential Transaction, each\nParty may disclose and deliver to the other Party certain information regarding its properties, employees, finances, businesses, operations, assets,\nprospects and financial affairs (each Party furnishing such information being hereinafter referred to, with respect to such information, as the\n“Disclosing Party,” and each Party receiving such information being hereinafter referred to, with respect to such information, as the “Receiving\nParty”). All such information furnished by a Disclosing Party or its Representatives (as defined below) after the date hereof, whether oral, written or\nelectronic, and regardless of the manner in which it is furnished, is referred to in this Agreement as “Proprietary Information.” The term Proprietary\nInformation shall include, without limitation, all data, reports, interpretations, forecasts, records, analyses, compilations, summaries or other\ninformation containing or otherwise reflecting information concerning a Disclosing Party, its respective affiliates and subsidiaries, whether prepared\nby the Receiving Party or others, and any summaries or other documents created by the Receiving Party or others which refer to, relate to, discuss,\nconstitute, or embody all or any portion of the Proprietary Information provided to the Receiving Party by the Disclosing Party (collectively,\n“Evaluation Material”). The term Proprietary Information shall not include, however, information which (a) is or becomes generally available to the\npublic other than as a result of a disclosure by the Receiving Party or any of its Representatives in breach of this Agreement, (b) was or becomes\navailable to the Receiving Party on a nonconfidential basis prior to or after its disclosure by the Disclosing Party or its Representatives from a\nperson, other than the Disclosing Party or its Representatives, who is not known by the Receiving Party or any of its Representatives, after\nreasonable investigation, to be bound by a confidentiality agreement with the Disclosing Party or any of its Representatives, or otherwise under an\nobligation to the Disclosing Party or any of its Representatives to keep such information confidential or (c) is developed independently by the\nReceiving Party or any of its Representatives without use of or reference to Proprietary Information and without violating any of the provisions of\nthis Agreement.\nSubject to the immediately succeeding paragraph, unless otherwise agreed to in writing by a Disclosing Party, each Party agrees (a) except as\nrequired by law, rule, applicable regulation, stock exchange rule or disclosure requirement of the Securities and Exchange Commission (collectively,\n“Law”), to keep all Proprietary Information confidential and not to disclose or reveal any Proprietary Information to any person other than directors,\nofficers and employees and those attorneys, accountants, financial advisors, consultants or other agents or advisors who are not officers or employees\n(such persons being referred to herein as “Representatives”) of the Receiving Party, who need to know the Proprietary Information for purposes of\nevaluating the Potential Transaction, and who have been informed of the terms of this Agreement, (b) not to use, and to cause its Representatives not\nto use, Proprietary Information for any purpose other than in connection with the evaluation or the consummation of the Potential Transaction and\n(c) except as required by Law, not to disclose to any person (other than those of the Receiving Party’s Representatives who are actively and directly\nparticipating in the evaluation of the Potential Transaction) any information about the Potential Transaction, or the terms or conditions or any other\nfacts relating thereto, including, without limitation, the fact that discussions are taking place with respect thereto, the status or termination thereof,\nthe fact that Proprietary Information has been made available to the Receiving Party or its Representatives or the existence or terms and conditions\nof this Agreement. Each Receiving Party agrees that any use or disclosure of any Proprietary Information or any other information concerning the\nDisclosing Party or the Potential Transaction by any of such Receiving Party’s Representatives in a manner inconsistent with this Agreement shall\nconstitute a breach of this Agreement by such Receiving Party. For purposes of this Agreement, with respect to Parent, the term “Representatives”\nshall include Parent’s potential financing sources and their respective directors, officers, employees, attorneys, accountants, consultants and other\nagents or advisors.\n2\nIn the event that a Receiving Party or any of its Representatives is requested or legally compelled, pursuant to a subpoena, civil investigative\ndemand, regulatory demand or similar process, to disclose any Proprietary Information or any other information concerning the Disclosing Party or\nthe Potential Transaction, each Party agrees that such Receiving Party will provide the Disclosing Party with prompt notice of such request or\nrequirement in order to enable the Disclosing Party to seek an appropriate protective order or other remedy, to consult with the Receiving Party with\nrespect to the Disclosing Party taking steps to resist or narrow the scope of such request or legal process, or to waive compliance, in whole or in part,\nwith the terms of this Agreement. In any such event, the Receiving Party will use its reasonable best efforts to ensure that all Proprietary Information\nand other information that is so disclosed will be accorded confidential treatment and shall furnish only that portion of the Proprietary Information\nwhich the Receiving Party is advised by counsel is legally required. If the Receiving Party or any of its Representatives is required to disclose\nProprietary Information as a matter of Law, the Receiving Party may disclose only that part of the Proprietary Information as is required by Law to\nbe disclosed (in which case, prior to such disclosure, the Receiving Party will, to the extent practicable, advise and consult with the Disclosing Party\nand its counsel as to such disclosure and the nature and wording of such disclosure), and, to the extent practical in the circumstances, the Receiving\nParty will use its reasonable best efforts to obtain confidential treatment for any Proprietary Information so disclosed.\nTo the extent that any Proprietary Information may include material subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, the Parties understand and agree that they\nhave a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material\nis not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-\nclient privilege, work product doctrine or other applicable privilege. All Proprietary Information that is entitled to protection under the attorney-\nclient privilege, work product doctrine or other applicable privilege and stamped and identified as such shall remain entitled to such protection under\nthese privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any Party to reveal material subject to the\nattorney-client privilege, work product doctrine or any other applicable privilege.\nEach Receiving Party acknowledges that the Proprietary Information is and at all times remains the sole and exclusive property of the\nDisclosing Party, and the Disclosing Party has the exclusive right, title and interest to its Proprietary Information. No right or license, by implication\nor otherwise, is granted by the Disclosing Party as a result of disclosure of Proprietary Information under this Agreement.\n3\nEach Receiving Party acknowledges that neither the Disclosing Party nor any of its Representatives make any express or implied\nrepresentation or warranty as to the accuracy or completeness of any Proprietary Information, and each Receiving Party agrees that none of such\npersons shall have any liability to the Receiving Party or any of its Representatives relating to or arising from the use of any Proprietary Information\nby the Receiving Party or its Representatives or for any errors therein or omissions therefrom. Each Receiving Party also agrees that it is not entitled\nto rely on the accuracy or completeness of any Proprietary Information and that the Receiving Party shall be entitled to rely solely on such\nrepresentations and warranties regarding Proprietary Information as may be made to the Receiving Party in the definitive agreement relating to the\nPotential Transaction, if any, subject to the terms and conditions of such agreement. Each Party agrees that unless and until a definitive agreement\nregarding the Potential Transaction has been executed, neither Party nor any of their respective Representatives shall be under any obligation to the\nother Party with respect to the Potential Transaction by virtue of this Agreement or otherwise, except for the matters specifically agreed to herein.\nIf either Party hereto determines that it does not wish to proceed with the Potential Transaction, it will promptly advise the other Party of that\ndecision in writing (the “Termination Notice”). In such case, the Receiving Party will promptly, upon written request by the Disclosing Party, destroy\nall copies of Proprietary Information, including Evaluation Material, in the Receiving Party’s possession or in the possession of any of the Receiving\nParty’s Representatives; provided, however, that the Receiving Party shall return all copies of Proprietary Information, other than Evaluation\nMaterial, in its possession or in the possession of any of its Representatives to the Disclosing Party if the Disclosing Party so requests, in writing,\nwithin thirty (30) days after receiving or delivering a Termination Notice; and provided further, however, that the Receiving Party and its\nRepresentatives may keep, for record keeping purposes only, one copy of the Evaluation Material (subject, in all events to the use and confidentiality\nrestrictions set forth in this Agreement). Each Party agrees that, upon written request of a Disclosing Party, an officer of the Receiving Party will\ncertify to compliance with this paragraph; and further provided that the Receiving Party may keep such copies of such Proprietary Information as is\nnecessary for the Receiving Party to comply with applicable Law. Notwithstanding the return or destruction of the Proprietary Information, each\nReceiving Party and each of its Representatives will continue to be bound by its obligations hereunder for a period of two (2) years from the date of\nany Termination Notice. In the event that no Termination Notice is delivered, then this Agreement shall automatically terminate two (2) years after\nthe date hereof.\nEach Receiving Party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of\nthe restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-\npublic information and on the communication of such information to any other person when it is reasonably foreseeable that such other person is\nlikely to purchase or sell such securities in reliance upon such information. Each Receiving Party hereby confirms that it, and its Representatives,\nwill take any action necessary to prevent the use of any information about the Disclosing Party in a way which might violate any antitrust or other\napplicable Law.\n4\nIt is understood that the covenants of this Agreement and the Proprietary Information disclosed are special, unique and of extraordinary\ncharacter. Each Disclosing Party may be irreparably harmed by a breach of this Agreement by the Receiving Party or its Representatives, and the use\nof the Proprietary Information for the business purposes of any person other than the Disclosing Party may enable such person to compete unfairly\nwith the Disclosing Party. Without prejudice to the rights and remedies otherwise available to each of the Parties, each Party shall be entitled to seek\nequitable relief by way of injunction or otherwise if the other Party or any of its Representatives breaches or threatens to breach any of the provisions\nof this Agreement. It is further understood and agreed that no failure or delay by a Party in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder. Each Party agrees that if the Receiving Party becomes aware of any disclosure of Proprietary Information of the\nDisclosing Party in violation of the terms hereof, the Receiving Party will promptly notify the Disclosing Party and will reasonably cooperate in any\nattempt by the Disclosing Party to obtain any remedy or relief relative thereto.\nThis Agreement and all controversies arising from or relating to performance under this Agreement shall be governed by and construed in\naccordance with the laws of the State of Texas, without giving effect to principles of choice or conflict of laws. This Agreement shall not be assigned\nby operation of Law or otherwise.\nThis Agreement is solely for the benefit of the Parties, and this Agreement shall not be deemed to confer upon or give to any other third party\nany remedy, claim of liability or reimbursement, cause of action or other right.\nIf any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable, the remainder of the\nprovisions of this Agreement shall remain in full force and effect. The Parties shall endeavor in good faith negotiations to replace any invalid, illegal\nor unenforceable provision with a valid, legal and enforceable provision, the effect of which comes as close as possible to that of the invalid, illegal\nor unenforceable provision.\n5\nThis Agreement contains the entire agreement between the Parties concerning the subject matter hereof, and no modification of this Agreement\nor waiver of the terms and conditions hereof shall be binding upon the Parties, unless approved in a writing signed by each of the Parties. This\nAgreement may be executed in counterparts, including by facsimile, each of which shall be an original, but all of which together shall constitute one\nand the same agreement.\n[Signature Page Follows]\n6\nPlease acknowledge your agreement to the foregoing by countersigning this Agreement in the space provided below and returning to the\nundersigned a fully executed original copy of this Agreement.\nSEAWELL LIMITED\nBy: /s/ Jorgen P. Rasmussen\nName: Jorgen P. Rasmussen\nTitle: Executive Chairman\nAccepted and Agreed\nas of the date first written\nabove:\nALLIS-CHALMERS ENERGY INC.\nBy: /s/ Munawar H. Hidayatallah\nName: Munawar H. Hidayatallah\nTitle: Chairman and CEO\n7\nLOGO\nJune 30, 2010\nCONFIDENTIAL\nSeawell Limited\n14-Par-la-Ville Road\nHamilton HMGX\nBermuda\nRegistration No. 40612\nAttention:Jorgen Rasmussen, Executive Chairman\nRe: Amendment to Confidentiality Agreement dated as of June 23, 2010.\nGentlemen:\nReference is made hereby to the Confidentiality Agreement dated as of June 23, 2010 (the “Agreement”) by and between Allis-Chalmers\nEnergy Inc. (“Allis-Chalmers”) and Seawell Limited (“Seawell” and together with Allis-Chalmers, the “Parties”). This letter shall serve to evidence\nthe agreement of the Parties to amend the Agreement, as of the date first set forth above, to insert the following two paragraphs at the end of the\nAgreement.\n“Each Party represents and warrants that as of the date hereof, neither it nor any of its subsidiaries beneficially owns any securities of the\nother Party. Each Party agrees that, until the earlier of (x) one year from the date of this Agreement and (y) the date on which a Fundamental\nChange Event (as defined below) with respect to the other Party occurs, neither it nor any of its affiliates will engage in any of the following\nactions, unless and until such action shall hereafter have been specifically invited by the board of directors (or similar managing body) of the\nother Party: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities, securities\nconvertible into voting securities or any direct or indirect rights to acquire any voting securities of the other Party or any subsidiary thereof or\nany assets of the other Party or any subsidiary or division thereof, (ii) make, or in any way participate in, directly or indirectly, any\n“solicitation” of “proxies” (as such terms are used in the rules of the United States Securities and Exchange Commission) to vote, or seek to\nadvise or influence any person or entity with respect to the voting of, any voting securities of the other Party, (iii) make any public\nannouncement with respect to, or submit a proposal for, or offer of (with or without conditions) any merger, consolidation, business\ncombination, tender or exchange offer, restructuring, recapitalization or other extraordinary transaction of or involving the other Party or any\nof its subsidiaries or their securities or assets, (iv) form, join or in any way participate in a “group” (as defined in Section 13(4)(3) of the\nSecurities Exchange Act of 1934, as amended, and regulations thereunder) in connection with any voting securities of the other Party,\n(v) otherwise act, alone or in concert with others, to seek to control or influence the Board of Directors of the other Party, (vi) make any\nrequest or proposal to amend, waive or terminate any provision of this paragraph if such action would reasonably be likely to require public\ndisclosure or (vii) directly or indirectly publicly announce an intention to do, or enter into any arrangement or understanding with others to do,\nany of the actions\nSeawell Limited\nJune 30, 2010\nPage 2\nrestricted or prohibited under clauses (i) through (vi) of this paragraph, or take any action that is reasonable likely to result in the other Party or\nany of its affiliates having to make a public announcement regarding any of the matters referred to in clauses (i) through (vi) of this paragraph.\nFor purposes of this Agreement, a “Fundamental Change Event” means, with respect to a Party, (i) any third party commencing, or publicly\nannouncing its intention to commence, a tender or exchange offer which, if consummated, would give such third party ownership of 50% or\nmore of the outstanding voting securities of such Party; (ii) such Party or any of its subsidiaries entering into a binding definitive agreement\nwith a third party to effect (x) a merger or other business combination or transaction pursuant to which, if consummated, the outstanding shares\nof common stock of such Party immediately prior to such merger or other business combination or transaction would represent less than 50%\nof the outstanding voting power of such Party or the resulting entity immediately following such merger or other business combination or\ntransaction or (y) a sale of all or substantially all of the assets of such Party and its subsidiaries on a consolidated basis; (iii) any third party\npublicly announcing its intention to make a proposal providing for a merger, consolidation, dissolution, recapitalization or other business\ncombination involving such Party or any of its subsidiaries (or such Party shall have made a public announcement with respect to its receipt of\nsuch a proposal); (iv) such Party commencing any voluntary case, proceeding or other action (x) under any existing or future law of any\njurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors or (y) seeking appointment of a\nreceiver, trustee, assignee, custodian, conservator or other similar official for it or for all or any substantial portion of its assets; or (v) the\ncommencement against such Party of any case, proceeding or other action (x) under any existing or future law of any jurisdiction, domestic or\nforeign, relating to bankruptcy, insolvency, reorganization or relief of debtors or (y) seeking appointment of a receiver, trustee, assignee,\ncustodian, conservator or other similar official for it or for all or any substantial portion of its assets that (1) results in the entry of an order for\nrelief or any such adjudication or appointment or (2) remains undismissed, undischarged or unbonded for a period of 60 days; provided, that\nfor purposes of this sentence, the term “Party” shall mean Allis-Chalmers or Seawell, as the case may be, and shall not include any subsidiary\nof such person. Notwithstanding anything in this Agreement to the contrary, for purposes of this paragraph neither Seadrill Ltd nor any of its\naffiliates (other than Seawell, its subsidiaries and any affiliate of Seadrill Ltd who is an officer or director of Seawell or any of its subsidiaries\nand is acting in such capacity) shall constitute an affiliate of Seawell.\nTo induce the Parties to proceed with their evaluation of a Potential Transaction, the Parties agree that during the Exclusivity Period\ndescribed below, they will not, directly or indirectly, conduct any negotiations with, or solicit any offers from, any third party for the\nacquisition of any of their respective outstanding capital stock, the acquisition of any material portion of their respective assets or properties, or\nfor the merger or consolidation of either of them or their respective subsidiaries; provided, however that the foregoing shall not restrict Seawell\nfrom conducting any such negotiations with, or soliciting any such offers from, Seadrill Ltd or any of its affiliates. The “Exclusivity Period”\nshall be the period beginning on the date of execution of this Agreement by the Parties and ending on the earlier of (i) the execution of a\ndefinitive agreement regarding the Potential Transaction and (ii) August 3, 2010. The Parties hereby acknowledge and agree that (x) Allis-\nChalmers is in negotiations to purchase all of the outstanding capital stock of American Well Control, Inc., (y) Seawell is pursuing an\nacquisition of Rig Inspection Services and (z) Seawell is negotiating a joint venture with IKM Elektro AS, and none of such transactions shall\nbe subject to the prohibitions of this paragraph.\nExcept as expressly provided herein, the Agreement shall remain in full force and effect.\nThis letter agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which shall constitute the\nsame agreement.\nSeawell Limited\nJune 30, 2010\nPage 3\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this letter agreement, which will constitute\nour agreement with respect to the matters set forth herein.\n(Remainder of page left intentionally blank)\nVery truly yours,\nAllis-Chalmers Energy Inc.\n/s/ Munawar H. Hidayatallah\nMunawar H. Hidayatallah\nChief Executive Officer and Chairman\nAgreed to this\nday of July 2010:\nSeawell Limited\nBy: /s/ Jorgen P. Rasmussen\nName: Jorgen P. Rasmsussun\nTitle: Executive Chairman\nSeadrill Limited\nBy: /s/ Alf Thorkildsen\nName: Alf Thorkildsen\nTitle:\nSeawell Limited\n14-Par-la-Ville Road\nHamilton HMGX\nBermuda\nRegistration No. 40612\nAugust 3, 2010\nCONFIDENTIAL\nAllis-Chalmers Energy Inc.\n5075 Westheimer, Suite 890\nHouston, Texas 77056\nAttention: Munawar H. Hidayatallah, Chief Executive Officer and Chairman\nRe: Amendment to Confidentiality Agreement dated as of June 23, 2010, as amended.\nGentlemen:\nReference is made hereby to the Confidentiality Agreement dated as of June 23, 2010, as amended as of June 30, 2010 (the “Agreement”), by\nand between Allis-Chalmers Energy Inc. (“Allis-Chalmers”) and Seawell Limited (“Seawell” and together with Allis-Chalmers, the “Parties”). This\nletter shall serve to evidence the agreement of the Parties to amend the Agreement, as of the date first set forth above, as follows: the reference to\n“August 3, 2010” in the last paragraph of the Agreement is hereby amended to read “August 10, 2010”.\nExcept as expressly provided herein, the Agreement shall remain in full force and effect. This letter agreement may be executed in\ncounterparts, each of which shall be deemed to be an original, but both of which shall constitute the same agreement.\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this letter agreement, which will constitute\nour agreement with respect to the matters set forth herein.\n(Remainder of page left intentionally blank)\nVery truly yours,\nSeawell Limited\n/s/ Jorgen Rasmussen\nJorgen Rasmussen\nChairman\nAgreed to this\nday of August 2010:\nAllis-Chalmers Energy Inc.\nBy: /s/ Munawar H. Hidayatallah\nMunawar H. Hidayatallah\nChief Executive Officer and Chairman EX-10.2 7 dex102.htm CONFIDENTIALITY AGREEMENT\nExhibit 10.2\nSeawell Limited\n14-Par-laVille Road\nHamilton HMGX\nBermuda\nRegistration no. 40612\nCONFIDENTIAL\nJune 23, 2010\nAllis-Chalmers Energy Inc.\nAttn.: Mr. Munawar H. Hidayatallah\nChairman and Chief Executive Officer\n5075 Westheimer, Suite 890\nHouston, Texas 77056\nRe: Confidentiality Agreement\nLadies and Gentlemen:\nAs we have discussed, Allis-Chalmers Energy Inc., a Delaware corporation (“Allis-Chalmers,” which term shall, for purposes of this letter\nagreement (“Agreement”), include its subsidiaries), and Seawell Limited, a Bermuda company (“Parent,” which term shall, for purposes of this\nAgreement, include its subsidiaries) (each a “Party” and collectively, the “Parties”), are considering entering into discussions in order to evaluate a\npossible strategic transaction between the Parties (the “Potential Transaction”). For the purposes of the evaluation of the Potential Transaction, each\nParty may disclose and deliver to the other Party certain information regarding its properties, employees, finances, businesses, operations, assets,\nprospects and financial affairs (each Party furnishing such information being hereinafter referred to, with respect to such information, as the\n“Disclosing Party,” and each Party receiving such information being hereinafter referred to, with respect to such information, as the “Receiving\nParty”). All such information furnished by a Disclosing Party or its Representatives (as defined below) after the date hereof, whether oral, written or\nelectronic, and regardless of the manner in which it is furnished, is referred to in this Agreement as “Proprietary Information.” The term Proprietary\nInformation shall include, without limitation, all data, reports, interpretations, forecasts, records, analyses, compilations, summaries or other\ninformation containing or otherwise reflecting information concerning a Disclosing Party, its respective affiliates and subsidiaries, whether prepared\nby the Receiving Party or others, and any summaries or other documents created by the Receiving Party or others which refer to, relate to, discuss,\nconstitute, or embody all or any portion of the Proprietary Information provided to the Receiving Party by the Disclosing Party (collectively,\n“Evaluation Material”). The term Proprietary Information shall not include, however, information which (a) is or becomes generally available to the\npublic other than as a result of a disclosure by the Receiving Party or any of its Representatives in breach of this Agreement, (b) was or becomes\navailable to the Receiving Party on a nonconfidential basis prior to or after its disclosure by the Disclosing Party or its Representatives from a\nperson, other than the Disclosing Party or its Representatives, who is not known by the Receiving Party or any of its Representatives, after\nreasonable investigation, to be bound by a confidentiality agreement with the Disclosing Party or any of its Representatives, or otherwise under an\nobligation to the Disclosing Party or any of its Representatives to keep such information confidential or (c) is developed independently by the\nReceiving Party or any of its Representatives without use of or reference to Proprietary Information and without violating any of the provisions of\nthis Agreement.\n \nSubject to the immediately succeeding paragraph, unless otherwise agreed to in writing by a Disclosing Party, each Party agrees (a) except as\nrequired by law, rule, applicable regulation, stock exchange rule or disclosure requirement of the Securities and Exchange Commission (collectively,\n“Law”), to keep all Proprietary Information confidential and not to disclose or reveal any Proprietary Information to any person other than directors,\nofficers and employees and those attorneys, accountants, financial advisors, consultants or other agents or advisors who are not officers or employees\n(such persons being referred to herein as “Representatives”) of the Receiving Party, who need to know the Proprietary Information for purposes of\nevaluating the Potential Transaction, and who have been informed of the terms of this Agreement, (b) not to use, and to cause its Representatives not\nto use, Proprietary Information for any purpose other than in connection with the evaluation or the consummation of the Potential Transaction and\n(c) except as required by Law, not to disclose to any person (other than those of the Receiving Party’s Representatives who are actively and directly\nparticipating in the evaluation of the Potential Transaction) any information about the Potential Transaction, or the terms or conditions or any other\nfacts relating thereto, including, without limitation, the fact that discussions are taking place with respect thereto, the status or termination thereof,\nthe fact that Proprietary Information has been made available to the Receiving Party or its Representatives or the existence or terms and conditions\nof this Agreement. Each Receiving Party agrees that any use or disclosure of any Proprietary Information or any other information concerning the\nDisclosing Party or the Potential Transaction by any of such Receiving Party’s Representatives in a manner inconsistent with this Agreement shall\nconstitute a breach of this Agreement by such Receiving Party. For purposes of this Agreement, with respect to Parent, the term “Representatives”\nshall include Parent’s potential financing sources and their respective directors, officers, employees, attorneys, accountants, consultants and other\nagents or advisors.\nIn the event that a Receiving Party or any of its Representatives is requested or legally compelled, pursuant to a subpoena, civil investigative\ndemand, regulatory demand or similar process, to disclose any Proprietary Information or any other information concerning the Disclosing Party or\nthe Potential Transaction, each Party agrees that such Receiving Party will provide the Disclosing Party with prompt notice of such request or\nrequirement in order to enable the Disclosing Party to seek an appropriate protective order or other remedy, to consult with the Receiving Party with\nrespect to the Disclosing Party taking steps to resist or narrow the scope of such request or legal process, or to waive compliance, in whole or in part,\nwith the terms of this Agreement. In any such event, the Receiving Party will use its reasonable best efforts to ensure that all Proprietary Information\nand other information that is so disclosed will be accorded confidential treatment and shall furnish only that portion of the Proprietary Information\nwhich the Receiving Party is advised by counsel is legally required. If the Receiving Party or any of its Representatives is required to disclose\nProprietary Information as a matter of Law, the Receiving Party may disclose only that part of the Proprietary Information as is required by Law to\nbe disclosed (in which case, prior to such disclosure, the Receiving Party will, to the extent practicable, advise and consult with the Disclosing Party\nand its counsel as to such disclosure and the nature and wording of such disclosure), and, to the extent practical in the circumstances, the Receiving\nParty will use its reasonable best efforts to obtain confidential treatment for any Proprietary Information so disclosed.\nTo the extent that any Proprietary Information may include material subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, the Parties understand and agree that they\nhave a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material\nis not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-\nclient privilege, work product doctrine or other applicable privilege. All Proprietary Information that is entitled to protection under the attorney-\nclient privilege, work product doctrine or other applicable privilege and stamped and identified as such shall remain entitled to such protection under\nthese privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any Party to reveal material subject to the\nattorney-client privilege, work product doctrine or any other applicable privilege.\nEach Receiving Party acknowledges that the Proprietary Information is and at all times remains the sole and exclusive property of the\nDisclosing Party, and the Disclosing Party has the exclusive right, title and interest to its Proprietary Information. No right or license, by implication\nor otherwise, is granted by the Disclosing Party as a result of disclosure of Proprietary Information under this Agreement.\n3\nEach Receiving Party acknowledges that neither the Disclosing Party nor any of its Representatives make any express or implied\nrepresentation or warranty as to the accuracy or completeness of any Proprietary Information, and each Receiving Party agrees that none of such\npersons shall have any liability to the Receiving Party or any of its Representatives relating to or arising from the use of any Proprietary Information\nby the Receiving Party or its Representatives or for any errors therein or omissions therefrom. Each Receiving Party also agrees that it is not entitled\nto rely on the accuracy or completeness of any Proprietary Information and that the Receiving Party shall be entitled to rely solely on such\nrepresentations and warranties regarding Proprietary Information as may be made to the Receiving Party in the definitive agreement relating to the\nPotential Transaction, if any, subject to the terms and conditions of such agreement. Each Party agrees that unless and until a definitive agreement\nregarding the Potential Transaction has been executed, neither Party nor any of their respective Representatives shall be under any obligation to the\nother Party with respect to the Potential Transaction by virtue of this Agreement or otherwise, except for the matters specifically agreed to herein.\nIf either Party hereto determines that it does not wish to proceed with the Potential Transaction, it will promptly advise the other Party of that\ndecision in writing (the “Termination Notice). In such case, the Receiving Party will promptly, upon written request by the Disclosing Party, destroy\nall copies of Proprietary Information, including Evaluation Material, in the Receiving Party’s possession or in the possession of any of the Receiving\nParty’s Representatives; provided, however, that the Receiving Party shall return all copies of Proprietary Information, other than Evaluation\nMaterial, in its possession or in the possession of any of its Representatives to the Disclosing Party if the Disclosing Party so requests, in writing,\nwithin thirty (30) days after receiving or delivering a Termination Notice; and provided further, however, that the Receiving Party and its\nRepresentatives may keep, for record keeping purposes only, one copy of the Evaluation Material (subject, in all events to the use and confidentiality\nrestrictions set forth in this Agreement). Each Party agrees that, upon written request of a Disclosing Party, an officer of the Receiving Party will\ncertify to compliance with this paragraph; and further provided that the Receiving Party may keep such copies of such Proprietary Information as is\nnecessary for the Receiving Party to comply with applicable Law. Notwithstanding the return or destruction of the Proprietary Information, each\nReceiving Party and each of its Representatives will continue to be bound by its obligations hereunder for a period of two (2) years from the date of\nany Termination Notice. In the event that no Termination Notice is delivered, then this Agreement shall automatically terminate two (2) years after\nthe date hereof.\n \n \nEach Receiving Party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of\nthe restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-\npublic information and on the communication of such information to any other person when it is reasonably foreseeable that such other person is\nlikely to purchase or sell such securities in reliance upon such information. Each Receiving Party hereby confirms that it, and its Representatives,\nwill take any action necessary to prevent the use of any information about the Disclosing Party in a way which might violate any antitrust or other\napplicable Law.\nIt is understood that the covenants of this Agreement and the Proprietary Information disclosed are special, unique and of extraordinary\ncharacter. Each Disclosing Party may be irreparably harmed by a breach of this Agreement by the Receiving Party or its Representatives, and the use\nof the Proprietary Information for the business purposes of any person other than the Disclosing Party may enable such person to compete unfairly\nwith the Disclosing Party. Without prejudice to the rights and remedies otherwise available to each of the Parties, each Party shall be entitled to seek\nequitable relief by way of injunction or otherwise if the other Party or any of its Representatives breaches or threatens to breach any of the provisions\nof this Agreement. It is further understood and agreed that no failure or delay by a Party in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder. Each Party agrees that if the Receiving Party becomes aware of any disclosure of Proprietary Information of the\nDisclosing Party in violation of the terms hereof, the Receiving Party will promptly notify the Disclosing Party and will reasonably cooperate in any\nattempt by the Disclosing Party to obtain any remedy or relief relative thereto.\nThis Agreement and all controversies arising from or relating to performance under this Agreement shall be governed by and construed in\naccordance with the laws of the State of Texas, without giving effect to principles of choice or conflict of laws. This Agreement shall not be assigned\nby operation of Law or otherwise.\nThis Agreement is solely for the benefit of the Parties, and this Agreement shall not be deemed to confer upon or give to any other third party\nany remedy, claim of liability or reimbursement, cause of action or other right.\nIf any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable, the remainder of the\nprovisions of this Agreement shall remain in full force and effect. The Parties shall endeavor in good faith negotiations to replace any invalid, illegal\nor unenforceable provision with a valid, legal and enforceable provision, the effect of which comes as close as possible to that of the invalid, illegal\nor unenforceable provision.\nThis Agreement contains the entire agreement between the Parties concerning the subject matter hereof, and no modification of this Agreement\nor waiver of the terms and conditions hereof shall be binding upon the Parties, unless approved in a writing signed by each of the Parties. This\nAgreement may be executed in counterparts, including by facsimile, each of which shall be an original, but all of which together shall constitute one\nand the same agreement.\n[Signature Page Follows]\n6\nPlease acknowledge your agreement to the foregoing by countersigning this Agreement in the space provided below and returning to the\nundersigned a fully executed original copy of this Agreement.\nSEAWELL LIMITED\nBy: /s/ Jorgen P. Rasmussen\nName: Jorgen P. Rasmussen\nTitle: Executive Chairman\nAccepted and Agreed\nas of the date first written\nabove:\nALLIS-CHALMERS ENERGY INC.\nBy: /s/ Munawar H. Hidayatallah\nName: Munawar H. Hidayatallah\nTitle: Chairman and CEO\n. LOGO\nJune 30, 2010\nCONFIDENTIAL\nSeawell Limited\n14-Par-la-Ville Road\nHamilton HMGX\nBermuda\nRegistration No. 40612\nAttention:Jorgen Rasmussen, Executive Chairman\nRe: Amendment to Confidentiality Agreement dated as of June 23, 2010.\nGentlemen:\nReference is made hereby to the Confidentiality Agreement dated as of June 23, 2010 (the “Agreement”) by and between Allis-Chalmers\nEnergy Inc. (“Allis-Chalmers”) and Seawell Limited (“Seawell” and together with Allis-Chalmers, the “Parties”). This letter shall serve to evidence\nthe agreement of the Parties to amend the Agreement, as of the date first set forth above, to insert the following two paragraphs at the end of the\nAgreement.\n“Each Party represents and warrants that as of the date hereof, neither it nor any of its subsidiaries beneficially owns any securities of the\nother Party. Each Party agrees that, until the earlier of (x) one year from the date of this Agreement and (y) the date on which a Fundamental\nChange Event (as defined below) with respect to the other Party occurs, neither it nor any of its affiliates will engage in any of the following\nactions, unless and until such action shall hereafter have been specifically invited by the board of directors (or similar managing body) of the\nother Party: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities, securities\nconvertible into voting securities or any direct or indirect rights to acquire any voting securities of the other Party or any subsidiary thereof or\nany assets of the other Party or any subsidiary or division thereof, (ii) make, or in any way participate in, directly or indirectly, any\n“solicitation” of “proxies” (as such terms are used in the rules of the United States Securities and Exchange Commission) to vote, or seek to\nadvise or influence any person or entity with respect to the voting of, any voting securities of the other Party, (iii) make any public\nannouncement with respect to, or submit a proposal for, or offer of (with or without conditions) any merger, consolidation, business\ncombination, tender or exchange offer, restructuring, recapitalization or other extraordinary transaction of or involving the other Party or any\nof its subsidiaries or their securities or assets, (iv) form, join or in any way participate in a “group” (as defined in Section 13(4)(3) of the\nSecurities Exchange Act of 1934, as amended, and regulations thereunder) in connection with any voting securities of the other Party,\n(v) otherwise act, alone or in concert with others, to seek to control or influence the Board of Directors of the other Party, (vi) make any\nrequest or proposal to amend, waive or terminate any provision of this paragraph if such action would reasonably be likely to require public\ndisclosure or (vii) directly or indirectly publicly announce an intention to do, or enter into any arrangement or understanding with others to do,\nany of the actions\nSeawell Limited\nJune 30, 2010\nPage 2\nrestricted or prohibited under clauses (i) through (vi) of this paragraph, or take any action that is reasonable likely to result in the other Party or\nany of its affiliates having to make a public announcement regarding any of the matters referred to in clauses (i) through (vi) of this paragraph.\nFor purposes of this Agreement, a “Fundamental Change Event” means, with respect to a Party, (i) any third party commencing, or publicly\nannouncing its intention to commence, a tender or exchange offer which, if consummated, would give such third party ownership of 50% or\nmore of the outstanding voting securities of such Party; (ii) such Party or any of its subsidiaries entering into a binding definitive agreement\nwith a third party to effect (x) a merger or other business combination or transaction pursuant to which, if consummated, the outstanding shares\nof common stock of such Party immediately prior to such merger or other business combination or transaction would represent less than 50%\nof the outstanding voting power of such Party or the resulting entity immediately following such merger or other business combination or\ntransaction or (y) a sale of all or substantially all of the assets of such Party and its subsidiaries on a consolidated basis; (iii) any third party\npublicly announcing its intention to make a proposal providing for a merger, consolidation, dissolution, recapitalization or other business\ncombination involving such Party or any of its subsidiaries (or such Party shall have made a public announcement with respect to its receipt of\nsuch a proposal); (iv) such Party commencing any voluntary case, proceeding or other action (x) under any existing or future law of any\njurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors or (y) seeking appointment of a\nreceiver, trustee, assignee, custodian, conservator or other similar official for it or for all or any substantial portion of its assets; or (v) the\ncommencement against such Party of any case, proceeding or other action (x) under any existing or future law of any jurisdiction, domestic or\nforeign, relating to bankruptcy, insolvency, reorganization or relief of debtors or (y) seeking appointment of a receiver, trustee, assignee,\ncustodian, conservator or other similar official for it or for all or any substantial portion of its assets that (1) results in the entry of an order for\nrelief or any such adjudication or appointment or (2) remains undismissed, undischarged or unbonded for a period of 60 days; provided, that\nfor purposes of this sentence, the term “Party” shall mean Allis-Chalmers or Seawell, as the case may be, and shall not include any subsidiary\nof such person. Notwithstanding anything in this Agreement to the contrary, for purposes of this paragraph neither Seadrill Ltd nor any of its\naffiliates (other than Seawell, its subsidiaries and any affiliate of Seadrill Ltd who is an officer or director of Seawell or any of its subsidiaries\nand is acting in such capacity) shall constitute an affiliate of Seawell.\nTo induce the Parties to proceed with their evaluation of a Potential Transaction, the Parties agree that during the Exclusivity Period\ndescribed below, they will not, directly or indirectly, conduct any negotiations with, or solicit any offers from, any third party for the\nacquisition of any of their respective outstanding capital stock, the acquisition of any material portion of their respective assets or properties, or\nfor the merger or consolidation of either of them or their respective subsidiaries; provided, however that the foregoing shall not restrict Seawell\nfrom conducting any such negotiations with, or soliciting any such offers from, Seadrill Ltd or any of its affiliates. The “Exclusivity Period”\nshall be the period beginning on the date of execution of this Agreement by the Parties and ending on the earlier of (i) the execution of a\ndefinitive agreement regarding the Potential Transaction and (ii) August 3, 2010. The Parties hereby acknowledge and agree that (x) Allis-\nChalmers is in negotiations to purchase all of the outstanding capital stock of American Well Control, Inc., (y) Seawell is pursuing an\nacquisition of Rig Inspection Services and (z) Seawell is negotiating a joint venture with IKM Elektro AS, and none of such transactions shall\nbe subject to the prohibitions of this paragraph.\nExcept as expressly provided herein, the Agreement shall remain in full force and effect.\nThis letter agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which shall constitute the\nsame agreement.\nSeawell Limited\nJune 30, 2010\nPage 3\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this letter agreement, which will constitute\nour agreement with respect to the matters set forth herein.\n(Remainder of page left intentionally blank)\nAgreed to this day of July 2010: Seawell Limited\nBy: /s/ Jorgen P. Rasmussen\nName: Jorgen P. Rasmsussun\nTitle: Executive Chairman\nSeadrill Limited\nBy: /s/ Alf Thorkildsen\nName: Alf Thorkildsen\nTitle:\nVery truly yours,\nAllis-Chalmers Energy Inc.\n/s/ Munawar H. Hidayatallah\nMunawar H. Hidayatallah\nChief Executive Officer and Chairman\nSeawell Limited\n14-Par-la-Ville Road\nHamilton HMGX\nBermuda\nRegistration No. 40612\nAugust 3, 2010\nCONFIDENTIAL\nAllis-Chalmers Energy Inc.\n5075 Westheimer, Suite 890\nHouston, Texas 77056\nAttention: Munawar H. Hidayatallah, Chief Executive Officer and Chairman\nRe: Amendment to Confidentiality Agreement dated as of June 23, 2010, as amended.\nGentlemen:\nReference is made hereby to the Confidentiality Agreement dated as of June 23, 2010, as amended as of June 30, 2010 (the “Agreement”), by\nand between Allis-Chalmers Energy Inc. (“Allis-Chalmers”) and Seawell Limited (“Seawell” and together with Allis-Chalmers, the “Parties”). This\nletter shall serve to evidence the agreement of the Parties to amend the Agreement, as of the date first set forth above, as follows: the reference to\n“August 3, 2010” in the last paragraph of the Agreement is hereby amended to read “August 10, 2010”.\nExcept as expressly provided herein, the Agreement shall remain in full force and effect. This letter agreement may be executed in\ncounterparts, each of which shall be deemed to be an original, but both of which shall constitute the same agreement.\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this letter agreement, which will constitute\nour agreement with respect to the matters set forth herein.\n(Remainder of page left intentionally blank)\nAgreed to this day of August 2010:\nAllis-Chalmers Energy Inc.\nBy: /s/ Munawar H. Hidayatallah Munawar H. Hidayatallah\nChief Executive Officer and Chairman\nVery truly yours,\nSeawell Limited\n/s/ Jorgen Rasmussen\nJorgen Rasmussen\nChairman EX-10.2 7 dex102.htm CONFIDENTIALITY AGREEMENT\nExhibit 10.2\nSeawell Limited\n14-Par-laVille Road\nHamilton HMGX\nBermuda\nRegistration no. 40612\nCONFIDENTIAL\nJune 23, 2010\nAllis-Chalmers Energy Inc.\nAttn.: Mr. Munawar H. Hidayatallah\nChairman and Chief Executive Officer\n5075 Westheimer, Suite 890\nHouston, Texas 77056\nRe: Confidentiality. Agreement\nLadies and Gentlemen:\nAs we have discussed, Allis-Chalmers Energy Inc., a Delaware corporation ("Allis-Chalmers," which term shall, for purposes of this letter\nagreement ("Agreement"), include its subsidiaries), and Seawell Limited, a Bermuda company ("Parent," which term shall, for purposes of this\nAgreement, include its subsidiaries) (each a "Party." and collectively, the "Parties"), are considering entering into discussions in order to evaluate\na\npossible strategic transaction between the Parties (the "Potential Transaction"). For the purposes of the evaluation of the Potential Transaction,\neach\nParty\nmay\ndisclose\nand\ndeliver\nto\nthe\nother\nParty\ncertain\ninformation\nregarding\nits\nproperties,\nemployees,\nfinances,\nbusinesses,\noperations,\nassets,\nprospects and financial affairs (each Party furnishing such information being hereinafter referred to, with respect to such information, as\nthe\n"DisclosingParty, and each Party receiving such information being hereinafter referred to, with respect to such information, as the "Receiving\nParty."). All such information furnished by a Disclosing Party or its Representatives (as defined below) after the date hereof, whether oral, written or\nelectronic, and regardless of the manner in which it is furnished, is referred to in this Agreement as "Proprietary Information." The term Proprietary\nInformation shall include, without limitation, all data, reports, interpretations, forecasts, records, analyses, compilations, summaries or other\ninformation containing or otherwise reflecting information concerning a Disclosing Party, its respective affiliates and subsidiaries, whether prepared\nby the Receiving Party or others, and any summaries or other documents created by the Receiving Party or others which refer to, relate to, discuss,\nconstitute, or embody all or any portion of the Proprietary Information provided to the Receiving Party by the Disclosing Party (collectively,\n"Evaluation Material"). The term Proprietary Information shall not include, however, information which (a) is or becomes generally available to\nthe\npublic other than as a result of a disclosure by the Receiving Party or any of its Representatives in breach of this Agreement, (b) was or becomes\navailable to the Receiving Party on a nonconfidential basis prior to or after its disclosure by the Disclosing Party or its Representatives from\na\nperson, other than the Disclosing Party or its Representatives, who is not known by the Receiving Party or any of its Representatives, after\nreasonable investigation, to be bound by a confidentiality agreement with the Disclosing Party or any of its Representatives, or otherwise under an\nobligation to the Disclosing Party or any of its Representatives to keep such information confidential or (c) is developed independently by the\nReceiving Party or any of its Representatives without use of or reference to Proprietary Information and without violating any of the provisions\nof\nthis Agreement.\nSubject to the immediately succeeding paragraph, unless otherwise agreed to in writing by a Disclosing Party, each Party agrees (a) except as\nrequired by law, rule, applicable regulation, stock exchange rule or disclosure requirement of the Securities and Exchange Commission (collectively,\n"Law"), to keep all Proprietary Information confidential and not to disclose or reveal any Proprietary Information to any person other than directors,\nofficers and employees and those attorneys, accountants, financial advisors, consultants or other agents or advisors who are not officers or employees\n(such persons being referred to herein as "Representatives") of the Receiving Party, who need to know the Proprietary Information for purposes of\nevaluating the Potential Transaction, and who have been informed of the terms of this Agreement, (b) not to use, and to cause its Representatives not\nto use, Proprietary Information for any purpose other than in connection with the evaluation or the consummation of the Potential Transaction and\n(c)\nexcept as required by Law, not to disclose to any person (other than those of the Receiving Party's Representatives who are actively and directly\nparticipating in the evaluation of the Potential Transaction) any information about the Potential Transaction, or the terms or conditions or any other\nfacts relating thereto, including, without limitation, the fact that discussions are taking place with respect thereto, the status or termination thereof,\nthe fact that Proprietary Information has been made available to the Receiving Party or its Representatives or the existence or terms and conditions\nof this Agreement. Each Receiving Party agrees that any use or disclosure of any Proprietary Information or any other information concerning the\nDisclosing Party or the Potential Transaction by any of such Receiving Party's Representatives in a manner inconsistent with this Agreement shall\nconstitute a breach of this Agreement by such Receiving Party. For purposes of this Agreement, with respect to Parent, the term "Representatives"\nshall include Parent's potential financing sources and their respective directors, officers, employees, attorneys, accountants, consultants and other\nagents or advisors.\n2\nIn the event that a Receiving Party or any of its Representatives is requested or legally compelled, pursuant to a subpoena, civil investigative\ndemand, regulatory demand or similar process, to disclose any Proprietary Information or any other information concerning the Disclosing Party or\nthe Potential Transaction, each Party agrees that such Receiving Party will provide the Disclosing Party with prompt notice of such request or\nrequirement in order to enable the Disclosing Party to seek an appropriate protective order or other remedy, to consult with the Receiving Party with\nrespect to the Disclosing Party taking steps to resist or narrow the scope of such request or legal process, or to waive compliance, in whole or in part,\nwith the terms of this Agreement. In any such event, the Receiving Party will use its reasonable best efforts to ensure that all Proprietary Information\nand other information that is so disclosed will be accorded confidential treatment and shall furnish only that portion of the Proprietary Information\nwhich the Receiving Party is advised by counsel is legally required. If the Receiving Party or any of its Representatives is required to disclose\nProprietary Information as a matter of Law, the Receiving Party may disclose only that part of the Proprietary Information as is required by Law\nto\nbe disclosed (in which case, prior to such disclosure, the Receiving Party will, to the extent practicable, advise and consult with the Disclosing Party\nand its counsel as to such disclosure and the nature and wording of such disclosure), and, to the extent practical in the circumstances, the Receiving\nParty will use its reasonable best efforts to obtain confidential treatment for any Proprietary Information so disclosed.\nTo the extent that any Proprietary Information may include material subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, the Parties understand and agree that they\nhave a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material\nis not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-\nclient privilege, work product doctrine or other applicable privilege. All Proprietary Information that is entitled to protection under the attorney-\nclient privilege, work product doctrine or other applicable privilege and stamped and identified as such shall remain entitled to such protection under\nthese privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any Party to reveal material subject to the\nattorney-client privilege, work product doctrine or any other applicable privilege.\nEach Receiving Party acknowledges that the Proprietary Information is and at all times remains the sole and exclusive property of the\nDisclosing Party, and the Disclosing Party has the exclusive right, title and interest to its Proprietary Information. No right or license, by implication\nor otherwise, is granted by the Disclosing Party as a result of disclosure of Proprietary Information under this Agreement.\n3\nEach Receiving Party acknowledges that neither the Disclosing Party nor any of its Representatives make any express or implied\nrepresentation or warranty as to the accuracy or completeness of any Proprietary Information, and each Receiving Party agrees that none of such\npersons shall have any liability to the Receiving Party or any of its Representatives relating to or arising from the use of any Proprietary Information\nby the Receiving Party or its Representatives or for any errors therein or omissions therefrom. Each Receiving Party also agrees that it is not entitled\nto rely on the accuracy or completeness of any Proprietary Information and that the Receiving Party shall be entitled to rely solely on such\nrepresentations and warranties regarding Proprietary Information as may be made to the Receiving Party in the definitive agreement relating to the\nPotential Transaction, if any, subject to the terms and conditions of such agreement. Each Party agrees that unless and until a definitive agreement\nregarding the Potential Transaction has been executed, neither Party nor any of their respective Representatives shall be under any obligation to the\nother Party with respect to the Potential Transaction by virtue of this Agreement or otherwise, except for the matters specifically agreed to herein.\nIf either Party hereto determines that it does not wish to proceed with the Potential Transaction, it will promptly advise the other Party of that\ndecision in writing (the "Termination Notice"). In such case, the Receiving Party will promptly, upon written request by the Disclosing Party, destroy\nall\ncopies of Proprietary Information, including Evaluation Material, in the Receiving Party's possession or in the possession of any of the Receiving\nParty's Representatives; provided, however, that the Receiving Party shall return all copies of Proprietary Information, other than Evaluation\nMaterial, in its possession or in the possession of any of its Representatives to the Disclosing Party if the Disclosing Party so requests, in writing,\nwithin thirty (30) days after receiving or delivering a Termination Notice; and provided further, however, that the Receiving Party and its\nRepresentatives may keep, for record keeping purposes only, one copy of the Evaluation Material (subject, in all events to the use and confidentiality\nrestrictions set forth in this Agreement). Each Party agrees that, upon written request of a Disclosing Party, an officer of the Receiving Party\nwill\ncertify to compliance with this paragraph; and further provided that the Receiving Party may keep such copies of such Proprietary Information as is\nnecessary for the Receiving Party to comply with applicable Law. Notwithstanding the return or destruction of the Proprietary Information, each\nReceiving Party and each of its Representatives will continue to be bound by its obligations hereunder for a period of two (2) years from the date of\nany Termination Notice. In the event that no Termination Notice is delivered, then this Agreement shall automatically terminate two (2) years after\nthe date hereof.\nEach Receiving Party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement,\nof\nthe restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-\npublic information and on the communication of such information to any other person when it is reasonably foreseeable that such other person\nis\nlikely to purchase or sell such securities in reliance upon such information. Each Receiving Party hereby confirms that it, and its Representatives,\nwill take any action necessary to prevent the use of any information about the Disclosing Party in a way which might violate any antitrust or other\napplicable Law.\n4\nIt is understood that the covenants of this Agreement and the Proprietary Information disclosed are special, unique and of extraordinary\ncharacter. Each Disclosing Party may be irreparably harmed by a breach of this Agreement by the Receiving Party or its Representatives, and the use\nof the Proprietary Information for the business purposes of any person other than the Disclosing Party may enable such person to compete unfairly\nwith the Disclosing Party. Without prejudice to the rights and remedies otherwise available to each of the Parties, each Party shall be entitled to seek\nequitable relief by way of injunction or otherwise if the other Party or any of its Representatives breaches or threatens to breach any of the provisions\nof\nthis Agreement. It is further understood and agreed that no failure or delay by a Party in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder. Each Party agrees that if the Receiving Party becomes aware of any disclosure of Proprietary Information of the\nDisclosing Party in violation of the terms hereof, the Receiving Party will promptly notify the Disclosing Party and will reasonably cooperate in any\nattempt by the Disclosing Party to obtain any remedy or relief relative thereto.\nThis Agreement and all controversies arising from or relating to performance under this Agreement shall be governed by and construed in\naccordance with the laws of the State of Texas, without giving effect to principles of choice or conflict of laws. This Agreement shall not be assigned\nby operation of Law or otherwise.\nThis Agreement is solely for the benefit of the Parties, and this Agreement shall not be deemed to confer upon or give to any other third party\nany remedy, claim of liability or reimbursement, cause of action or other right.\nIf any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable, the remainder of the\nprovisions of this Agreement shall remain in full force and effect. The Parties shall endeavor in good faith negotiations to replace any invalid, illegal\nor unenforceable provision with a valid, legal and enforceable provision, the effect of which comes as close as possible to that of the invalid, illegal\nor unenforceable provision.\n5\nThis Agreement contains the entire agreement between the Parties concerning the subject matter hereof, and no modification of this Agreement\nor waiver of the terms and conditions hereof shall be binding upon the Parties, unless approved in a writing signed by each of the Parties. This\nAgreement may be executed in counterparts, including by facsimile, each of which shall be an original, but all of which together shall constitute one\nand the same agreement.\n[Signature Page Follows]\n6\nPlease acknowledge your agreement to the foregoing by countersigning this Agreement in the space provided below and returning to the\nundersigned a fully executed original copy of this Agreement.\nSEAWELL LIMITED\nBy:\n/s/ Jorgen P. Rasmussen\nName: Jorgen P. Rasmussen\nTitle: Executive Chairman\nAccepted and Agreed\nas of the date first written\nabove:\nALLIS-CHALMERS ENERGY INC.\nBy:\n/s/ Munawar H. Hidayatallah\nName: Munawar H. Hidayatallah\nTitle:\nChairman and CEO\n7\nLOGO\nJune 30, 2010\nCONFIDENTIAL\nSeawell Limited\n14-Par-la-Ville Road\nHamilton HMGX\nBermuda\nRegistration No. 40612\nAttention:Jorger Rasmussen, Executive Chairman\nRe: Amendment to Confidentiality Agreement dated as of June 23, 2010.\nGentlemen:\nReference is made hereby to the Confidentiality Agreement dated as of June 23, 2010 (the "Agreement") by and between Allis-Chalmers\nEnergy Inc. ("Allis-Chalmers") and Seawell Limited ("Seawell" and together with Allis-Chalmers, the "Parties"). This letter shall serve to evidence\nthe agreement of the Parties to amend the Agreement, as of the date first set forth above, to insert the following two paragraphs at the end of the\nAgreement.\n"Each Party represents and warrants that as of the date hereof, neither it nor any of its subsidiaries beneficially owns any securities of the\nother Party. Each Party agrees that, until the earlier of (x) one year from the date of this Agreement and (y) the date on which a Fundamental\nChange Event (as defined below) with respect to the other Party occurs, neither it nor any of its affiliates will engage in any of the following\nactions, unless and until such action shall hereafter have been specifically invited by the board of directors (or similar managing body) of the\nother Party: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities, securities\nconvertible into voting securities or any direct or indirect rights to acquire any voting securities of the other Party or any subsidiary thereof or\nany assets of the other Party or any subsidiary or division thereof, (ii) make, or in any way participate in, directly or indirectly, any\n"solicitation" of "proxies" (as such terms are used in the rules of the United States Securities and Exchange Commission) to vote, or seek to\nadvise or influence any person or entity with respect to the voting of, any voting securities of the other Party, (iii) make any public\nannouncement with respect to, or submit a proposal for, or offer of (with or without conditions) any merger, consolidation, business\ncombination, tender or exchange offer, restructuring, recapitalization or other extraordinary transaction of or involving the other Party or any\nof its subsidiaries or their securities or assets, (iv) form, join or in any way participate in a "group" (as defined in Section 13(4)(3) of the\nSecurities Exchange Act of 1934, as amended, and regulations thereunder) in connection with any voting securities of the other Party,\n(v) otherwise act, alone or in concert with others, to seek to control or influence the Board of Directors of the other Party, (vi) make any\nrequest or proposal to amend, waive or terminate any provision of this paragraph if such action would reasonably be likely to require public\ndisclosure or (vii) directly or indirectly publicly announce an intention to do, or enter into any arrangement or understanding with others to do,\nany of the actions\nSeawell Limited\nJune 30, 2010\nPage 2\nrestricted or prohibited under clauses (i) through (vi) of this paragraph, or take any action that is reasonable likely to result in the other Party or\nany\nof\nits\naffiliates\nhaving\nto\nmake\na\npublic\nannouncement\nregarding\nany\nof\nthe\nmatters\nreferred\nto\nin\nclauses\n(i)\nthrough\n(vi)\nof\nthis\nparagraph.\nFor purposes of this Agreement, a "Fundamenta Change Event" means, with respect to a Party, (i) any third party commencing, or publicly\nannouncing its intention to commence, a tender or exchange offer which, if consummated, would give such third party ownership of 50% or\nmore of the outstanding voting securities of such Party; (ii) such Party or any of its subsidiaries entering into a binding definitive agreement\nwith a third party to effect (x) a merger or other business combination or transaction pursuant to which, if consummated, the outstanding shares\nof\ncommon stock of such Party immediately prior to such merger or other business combination or transaction would represent less than 50%\nof the outstanding voting power of such Party or the resulting entity immediately following such merger or other business combination or\ntransaction or (y) a sale of all or substantially all of the assets of such Party and its subsidiaries on a consolidated basis; (iii) any third party\npublicly announcing its intention to make a proposal providing for a merger, consolidation, dissolution, recapitalization or other business\ncombination involving such Party or any of its subsidiaries (or such Party shall have made a public announcement with respect to its receipt of\nsuch a proposal); (iv) such Party commencing any voluntary case, proceeding or other action (x) under any existing or future law of any\njurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors or (y) seeking appointment of\na\nreceiver, trustee, assignee, custodian, conservator or other similar official for it or for all or any substantial portion of its assets; or (v) the\ncommencement against such Party of any case, proceeding or other action (x) under any existing or future law of any jurisdiction, domestic or\nforeign, relating to bankruptcy, insolvency, reorganization or relief of debtors or (y) seeking appointment of a receiver, trustee, assignee,\ncustodian, conservator or other similar official for it or for all or any substantial portion of its assets that (1) results in the entry of an order for\nrelief or any such adjudication or appointment or (2) remains undismissed, undischarged or unbonded for a period of 60 days; provided, that\nfor purposes of this sentence, the term "Party" shall mean Allis-Chalmers or Seawell, as the case may be, and shall not include any subsidiary\nof such person. Notwithstanding anything in this Agreement to the contrary, for purposes of this paragraph neither Seadrill Ltd nor any of its\naffiliates (other than Seawell, its subsidiaries and any affiliate of Seadrill Ltd who is an officer or director of Seawell or any of its subsidiaries\nand is acting in such capacity) shall constitute an affiliate of Seawell.\nTo induce the Parties to proceed with their evaluation of a Potential Transaction, the Parties agree that during the Exclusivity Period\ndescribed below, they will not, directly or indirectly, conduct any negotiations with, or solicit any offers from, any third party for the\nacquisition of any of their respective outstanding capital stock, the acquisition of any material portion of their respective assets or properties, or\nfor the merger or consolidation of either of them or their respective subsidiaries; provided, however that the foregoing shall not restrict Seawell\nfrom conducting any such negotiations with, or soliciting any such offers from, Seadrill Ltd or any of its affiliates. The "Exclusivity Period"\nshall be the period beginning on the date of execution of this Agreement by the Parties and ending on the earlier of (i) the execution of a\ndefinitive agreement regarding the Potential Transaction and (ii) August 3, 2010. The Parties hereby acknowledge and agree that (x) Allis-\nChalmers is in negotiations to purchase all of the outstanding capital stock of American Well Control, Inc., (y) Seawell is pursuing an\nacquisition of Rig Inspection Services and (z) Seawell is negotiating a joint venture with IKM Elektro AS, and none of such transactions shall\nbe subject to the prohibitions of this paragraph.\nExcept as expressly provided herein, the Agreement shall remain in full force and effect.\nThis letter agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which shall constitute the\nsame agreement.\nSeawell Limited\nJune 30, 2010\nPage 3\nIf you are in agreement with the foregoing, please SO indicate by signing and returning one copy of this letter agreement, which will constitute\nour agreement with respect to the matters set forth herein.\n(Remainder of page left intentionally blank)\nVery truly yours,\nAllis-Chalmers Energy Inc.\n/s/ Munawar H. Hidayatallah\nMunawar H. Hidayatallah\nChief Executive Officer and Chairman\nAgreed to this\nday of July 2010:\nSeawell Limited\nBy:\n/s/ Jorgen P. Rasmussen\nName: Jorgen P. Rasmsussun\nTitle: Executive Chairman\nSeadrill Limited\nBy:\n/s/ Alf Thorkildsen\nName: Alf Thorkildsen\nTitle:\nSeawell Limited\n14-Par-la-Ville Road\nHamilton HMGX\nBermuda\nRegistration No. 40612\nAugust 3, 2010\nCONFIDENTIAL\nAllis-Chalmers Energy Inc.\n5075 Westheimer, Suite 890\nHouston, Texas 77056\nAttention: Munawar H. Hidayatallah, Chief Executive Officer and Chairman\nRe: Amendment to Confidentiality. Agreement dated as of June 23, 2010, as amended.\nGentlemen:\nReference is made hereby to the Confidentiality Agreement dated as of June 23, 2010, as amended as of June 30, 2010 (the "Agreement"), by\nand between Allis-Chalmers Energy Inc. ("Allis-Chalmers") and Seawell Limited ("Seawell" and together with Allis-Chalmers, the "Parties"). This\nletter shall serve to evidence the agreement of the Parties to amend the Agreement, as of the date first set forth above, as follows: the reference to\n"August 3, 2010" in the last paragraph of the Agreement is hereby amended to read "August 10, 2010".\nExcept as expressly provided herein, the Agreement shall remain in full force and effect. This letter agreement may be executed in\ncounterparts, each of which shall be deemed to be an original, but both of which shall constitute the same agreement.\nIf you are in agreement with the foregoing, please SO indicate by signing and returning one copy of this letter agreement, which will constitute\nour agreement with respect to the matters set forth herein.\n(Remainder of page left intentionally blank)\nVery truly yours,\nSeawell Limited\n/s/ Jorgen Rasmussen\nJorgen Rasmussen\nChairman\nAgreed to this day of August 2010:\nAllis-Chalmers Energy Inc.\nBy: /s/ Munawar H. Hidayatallah\nMunawar H. Hidayatallah\nChief Executive Officer and Chairman EX-10.2 7 dex102.htm CONFIDENTIALITY AGREEMENT\nExhibit 10.2\nSeawell Limited\n14-Par-laVille Road\nHamilton HMGX\nBermuda\nRegistration no. 40612\nCONFIDENTIAL\nJune 23, 2010\nAllis-Chalmers Energy Inc.\nAttn.: Mr. Munawar H. Hidayatallah\nChairman and Chief Executive Officer\n5075 Westheimer, Suite 890\nHouston, Texas 77056\nRe: Confidentiality Agreement\nLadies and Gentlemen:\nAs we have discussed, Allis-Chalmers Energy Inc., a Delaware corporation (“Allis-Chalmers,” which term shall, for purposes of this letter\nagreement (“Agreement”), include its subsidiaries), and Seawell Limited, a Bermuda company (“Parent,” which term shall, for purposes of this\nAgreement, include its subsidiaries) (each a “Party” and collectively, the “Parties”), are considering entering into discussions in order to evaluate a\npossible strategic transaction between the Parties (the “Potential Transaction”). For the purposes of the evaluation of the Potential Transaction, each\nParty may disclose and deliver to the other Party certain information regarding its properties, employees, finances, businesses, operations, assets,\nprospects and financial affairs (each Party furnishing such information being hereinafter referred to, with respect to such information, as the\n“Disclosing Party,” and each Party receiving such information being hereinafter referred to, with respect to such information, as the “Receiving\nParty”). All such information furnished by a Disclosing Party or its Representatives (as defined below) after the date hereof, whether oral, written or\nelectronic, and regardless of the manner in which it is furnished, is referred to in this Agreement as “Proprietary Information.” The term Proprietary\nInformation shall include, without limitation, all data, reports, interpretations, forecasts, records, analyses, compilations, summaries or other\ninformation containing or otherwise reflecting information concerning a Disclosing Party, its respective affiliates and subsidiaries, whether prepared\nby the Receiving Party or others, and any summaries or other documents created by the Receiving Party or others which refer to, relate to, discuss,\nconstitute, or embody all or any portion of the Proprietary Information provided to the Receiving Party by the Disclosing Party (collectively,\n“Evaluation Material”). The term Proprietary Information shall not include, however, information which (a) is or becomes generally available to the\npublic other than as a result of a disclosure by the Receiving Party or any of its Representatives in breach of this Agreement, (b) was or becomes\navailable to the Receiving Party on a nonconfidential basis prior to or after its disclosure by the Disclosing Party or its Representatives from a\nperson, other than the Disclosing Party or its Representatives, who is not known by the Receiving Party or any of its Representatives, after\nreasonable investigation, to be bound by a confidentiality agreement with the Disclosing Party or any of its Representatives, or otherwise under an\nobligation to the Disclosing Party or any of its Representatives to keep such information confidential or (c) is developed independently by the\nReceiving Party or any of its Representatives without use of or reference to Proprietary Information and without violating any of the provisions of\nthis Agreement.\nSubject to the immediately succeeding paragraph, unless otherwise agreed to in writing by a Disclosing Party, each Party agrees (a) except as\nrequired by law, rule, applicable regulation, stock exchange rule or disclosure requirement of the Securities and Exchange Commission (collectively,\n“Law”), to keep all Proprietary Information confidential and not to disclose or reveal any Proprietary Information to any person other than directors,\nofficers and employees and those attorneys, accountants, financial advisors, consultants or other agents or advisors who are not officers or employees\n(such persons being referred to herein as “Representatives”) of the Receiving Party, who need to know the Proprietary Information for purposes of\nevaluating the Potential Transaction, and who have been informed of the terms of this Agreement, (b) not to use, and to cause its Representatives not\nto use, Proprietary Information for any purpose other than in connection with the evaluation or the consummation of the Potential Transaction and\n(c) except as required by Law, not to disclose to any person (other than those of the Receiving Party’s Representatives who are actively and directly\nparticipating in the evaluation of the Potential Transaction) any information about the Potential Transaction, or the terms or conditions or any other\nfacts relating thereto, including, without limitation, the fact that discussions are taking place with respect thereto, the status or termination thereof,\nthe fact that Proprietary Information has been made available to the Receiving Party or its Representatives or the existence or terms and conditions\nof this Agreement. Each Receiving Party agrees that any use or disclosure of any Proprietary Information or any other information concerning the\nDisclosing Party or the Potential Transaction by any of such Receiving Party’s Representatives in a manner inconsistent with this Agreement shall\nconstitute a breach of this Agreement by such Receiving Party. For purposes of this Agreement, with respect to Parent, the term “Representatives”\nshall include Parent’s potential financing sources and their respective directors, officers, employees, attorneys, accountants, consultants and other\nagents or advisors.\n2\nIn the event that a Receiving Party or any of its Representatives is requested or legally compelled, pursuant to a subpoena, civil investigative\ndemand, regulatory demand or similar process, to disclose any Proprietary Information or any other information concerning the Disclosing Party or\nthe Potential Transaction, each Party agrees that such Receiving Party will provide the Disclosing Party with prompt notice of such request or\nrequirement in order to enable the Disclosing Party to seek an appropriate protective order or other remedy, to consult with the Receiving Party with\nrespect to the Disclosing Party taking steps to resist or narrow the scope of such request or legal process, or to waive compliance, in whole or in part,\nwith the terms of this Agreement. In any such event, the Receiving Party will use its reasonable best efforts to ensure that all Proprietary Information\nand other information that is so disclosed will be accorded confidential treatment and shall furnish only that portion of the Proprietary Information\nwhich the Receiving Party is advised by counsel is legally required. If the Receiving Party or any of its Representatives is required to disclose\nProprietary Information as a matter of Law, the Receiving Party may disclose only that part of the Proprietary Information as is required by Law to\nbe disclosed (in which case, prior to such disclosure, the Receiving Party will, to the extent practicable, advise and consult with the Disclosing Party\nand its counsel as to such disclosure and the nature and wording of such disclosure), and, to the extent practical in the circumstances, the Receiving\nParty will use its reasonable best efforts to obtain confidential treatment for any Proprietary Information so disclosed.\nTo the extent that any Proprietary Information may include material subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, the Parties understand and agree that they\nhave a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material\nis not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-\nclient privilege, work product doctrine or other applicable privilege. All Proprietary Information that is entitled to protection under the attorney-\nclient privilege, work product doctrine or other applicable privilege and stamped and identified as such shall remain entitled to such protection under\nthese privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any Party to reveal material subject to the\nattorney-client privilege, work product doctrine or any other applicable privilege.\nEach Receiving Party acknowledges that the Proprietary Information is and at all times remains the sole and exclusive property of the\nDisclosing Party, and the Disclosing Party has the exclusive right, title and interest to its Proprietary Information. No right or license, by implication\nor otherwise, is granted by the Disclosing Party as a result of disclosure of Proprietary Information under this Agreement.\n3\nEach Receiving Party acknowledges that neither the Disclosing Party nor any of its Representatives make any express or implied\nrepresentation or warranty as to the accuracy or completeness of any Proprietary Information, and each Receiving Party agrees that none of such\npersons shall have any liability to the Receiving Party or any of its Representatives relating to or arising from the use of any Proprietary Information\nby the Receiving Party or its Representatives or for any errors therein or omissions therefrom. Each Receiving Party also agrees that it is not entitled\nto rely on the accuracy or completeness of any Proprietary Information and that the Receiving Party shall be entitled to rely solely on such\nrepresentations and warranties regarding Proprietary Information as may be made to the Receiving Party in the definitive agreement relating to the\nPotential Transaction, if any, subject to the terms and conditions of such agreement. Each Party agrees that unless and until a definitive agreement\nregarding the Potential Transaction has been executed, neither Party nor any of their respective Representatives shall be under any obligation to the\nother Party with respect to the Potential Transaction by virtue of this Agreement or otherwise, except for the matters specifically agreed to herein.\nIf either Party hereto determines that it does not wish to proceed with the Potential Transaction, it will promptly advise the other Party of that\ndecision in writing (the “Termination Notice”). In such case, the Receiving Party will promptly, upon written request by the Disclosing Party, destroy\nall copies of Proprietary Information, including Evaluation Material, in the Receiving Party’s possession or in the possession of any of the Receiving\nParty’s Representatives; provided, however, that the Receiving Party shall return all copies of Proprietary Information, other than Evaluation\nMaterial, in its possession or in the possession of any of its Representatives to the Disclosing Party if the Disclosing Party so requests, in writing,\nwithin thirty (30) days after receiving or delivering a Termination Notice; and provided further, however, that the Receiving Party and its\nRepresentatives may keep, for record keeping purposes only, one copy of the Evaluation Material (subject, in all events to the use and confidentiality\nrestrictions set forth in this Agreement). Each Party agrees that, upon written request of a Disclosing Party, an officer of the Receiving Party will\ncertify to compliance with this paragraph; and further provided that the Receiving Party may keep such copies of such Proprietary Information as is\nnecessary for the Receiving Party to comply with applicable Law. Notwithstanding the return or destruction of the Proprietary Information, each\nReceiving Party and each of its Representatives will continue to be bound by its obligations hereunder for a period of two (2) years from the date of\nany Termination Notice. In the event that no Termination Notice is delivered, then this Agreement shall automatically terminate two (2) years after\nthe date hereof.\nEach Receiving Party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of\nthe restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-\npublic information and on the communication of such information to any other person when it is reasonably foreseeable that such other person is\nlikely to purchase or sell such securities in reliance upon such information. Each Receiving Party hereby confirms that it, and its Representatives,\nwill take any action necessary to prevent the use of any information about the Disclosing Party in a way which might violate any antitrust or other\napplicable Law.\n4\nIt is understood that the covenants of this Agreement and the Proprietary Information disclosed are special, unique and of extraordinary\ncharacter. Each Disclosing Party may be irreparably harmed by a breach of this Agreement by the Receiving Party or its Representatives, and the use\nof the Proprietary Information for the business purposes of any person other than the Disclosing Party may enable such person to compete unfairly\nwith the Disclosing Party. Without prejudice to the rights and remedies otherwise available to each of the Parties, each Party shall be entitled to seek\nequitable relief by way of injunction or otherwise if the other Party or any of its Representatives breaches or threatens to breach any of the provisions\nof this Agreement. It is further understood and agreed that no failure or delay by a Party in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder. Each Party agrees that if the Receiving Party becomes aware of any disclosure of Proprietary Information of the\nDisclosing Party in violation of the terms hereof, the Receiving Party will promptly notify the Disclosing Party and will reasonably cooperate in any\nattempt by the Disclosing Party to obtain any remedy or relief relative thereto.\nThis Agreement and all controversies arising from or relating to performance under this Agreement shall be governed by and construed in\naccordance with the laws of the State of Texas, without giving effect to principles of choice or conflict of laws. This Agreement shall not be assigned\nby operation of Law or otherwise.\nThis Agreement is solely for the benefit of the Parties, and this Agreement shall not be deemed to confer upon or give to any other third party\nany remedy, claim of liability or reimbursement, cause of action or other right.\nIf any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable, the remainder of the\nprovisions of this Agreement shall remain in full force and effect. The Parties shall endeavor in good faith negotiations to replace any invalid, illegal\nor unenforceable provision with a valid, legal and enforceable provision, the effect of which comes as close as possible to that of the invalid, illegal\nor unenforceable provision.\n5\nThis Agreement contains the entire agreement between the Parties concerning the subject matter hereof, and no modification of this Agreement\nor waiver of the terms and conditions hereof shall be binding upon the Parties, unless approved in a writing signed by each of the Parties. This\nAgreement may be executed in counterparts, including by facsimile, each of which shall be an original, but all of which together shall constitute one\nand the same agreement.\n[Signature Page Follows]\n6\nPlease acknowledge your agreement to the foregoing by countersigning this Agreement in the space provided below and returning to the\nundersigned a fully executed original copy of this Agreement.\nSEAWELL LIMITED\nBy: /s/ Jorgen P. Rasmussen\nName: Jorgen P. Rasmussen\nTitle: Executive Chairman\nAccepted and Agreed\nas of the date first written\nabove:\nALLIS-CHALMERS ENERGY INC.\nBy: /s/ Munawar H. Hidayatallah\nName: Munawar H. Hidayatallah\nTitle: Chairman and CEO\n7\nLOGO\nJune 30, 2010\nCONFIDENTIAL\nSeawell Limited\n14-Par-la-Ville Road\nHamilton HMGX\nBermuda\nRegistration No. 40612\nAttention:Jorgen Rasmussen, Executive Chairman\nRe: Amendment to Confidentiality Agreement dated as of June 23, 2010.\nGentlemen:\nReference is made hereby to the Confidentiality Agreement dated as of June 23, 2010 (the “Agreement”) by and between Allis-Chalmers\nEnergy Inc. (“Allis-Chalmers”) and Seawell Limited (“Seawell” and together with Allis-Chalmers, the “Parties”). This letter shall serve to evidence\nthe agreement of the Parties to amend the Agreement, as of the date first set forth above, to insert the following two paragraphs at the end of the\nAgreement.\n“Each Party represents and warrants that as of the date hereof, neither it nor any of its subsidiaries beneficially owns any securities of the\nother Party. Each Party agrees that, until the earlier of (x) one year from the date of this Agreement and (y) the date on which a Fundamental\nChange Event (as defined below) with respect to the other Party occurs, neither it nor any of its affiliates will engage in any of the following\nactions, unless and until such action shall hereafter have been specifically invited by the board of directors (or similar managing body) of the\nother Party: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities, securities\nconvertible into voting securities or any direct or indirect rights to acquire any voting securities of the other Party or any subsidiary thereof or\nany assets of the other Party or any subsidiary or division thereof, (ii) make, or in any way participate in, directly or indirectly, any\n“solicitation” of “proxies” (as such terms are used in the rules of the United States Securities and Exchange Commission) to vote, or seek to\nadvise or influence any person or entity with respect to the voting of, any voting securities of the other Party, (iii) make any public\nannouncement with respect to, or submit a proposal for, or offer of (with or without conditions) any merger, consolidation, business\ncombination, tender or exchange offer, restructuring, recapitalization or other extraordinary transaction of or involving the other Party or any\nof its subsidiaries or their securities or assets, (iv) form, join or in any way participate in a “group” (as defined in Section 13(4)(3) of the\nSecurities Exchange Act of 1934, as amended, and regulations thereunder) in connection with any voting securities of the other Party,\n(v) otherwise act, alone or in concert with others, to seek to control or influence the Board of Directors of the other Party, (vi) make any\nrequest or proposal to amend, waive or terminate any provision of this paragraph if such action would reasonably be likely to require public\ndisclosure or (vii) directly or indirectly publicly announce an intention to do, or enter into any arrangement or understanding with others to do,\nany of the actions\nSeawell Limited\nJune 30, 2010\nPage 2\nrestricted or prohibited under clauses (i) through (vi) of this paragraph, or take any action that is reasonable likely to result in the other Party or\nany of its affiliates having to make a public announcement regarding any of the matters referred to in clauses (i) through (vi) of this paragraph.\nFor purposes of this Agreement, a “Fundamental Change Event” means, with respect to a Party, (i) any third party commencing, or publicly\nannouncing its intention to commence, a tender or exchange offer which, if consummated, would give such third party ownership of 50% or\nmore of the outstanding voting securities of such Party; (ii) such Party or any of its subsidiaries entering into a binding definitive agreement\nwith a third party to effect (x) a merger or other business combination or transaction pursuant to which, if consummated, the outstanding shares\nof common stock of such Party immediately prior to such merger or other business combination or transaction would represent less than 50%\nof the outstanding voting power of such Party or the resulting entity immediately following such merger or other business combination or\ntransaction or (y) a sale of all or substantially all of the assets of such Party and its subsidiaries on a consolidated basis; (iii) any third party\npublicly announcing its intention to make a proposal providing for a merger, consolidation, dissolution, recapitalization or other business\ncombination involving such Party or any of its subsidiaries (or such Party shall have made a public announcement with respect to its receipt of\nsuch a proposal); (iv) such Party commencing any voluntary case, proceeding or other action (x) under any existing or future law of any\njurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors or (y) seeking appointment of a\nreceiver, trustee, assignee, custodian, conservator or other similar official for it or for all or any substantial portion of its assets; or (v) the\ncommencement against such Party of any case, proceeding or other action (x) under any existing or future law of any jurisdiction, domestic or\nforeign, relating to bankruptcy, insolvency, reorganization or relief of debtors or (y) seeking appointment of a receiver, trustee, assignee,\ncustodian, conservator or other similar official for it or for all or any substantial portion of its assets that (1) results in the entry of an order for\nrelief or any such adjudication or appointment or (2) remains undismissed, undischarged or unbonded for a period of 60 days; provided, that\nfor purposes of this sentence, the term “Party” shall mean Allis-Chalmers or Seawell, as the case may be, and shall not include any subsidiary\nof such person. Notwithstanding anything in this Agreement to the contrary, for purposes of this paragraph neither Seadrill Ltd nor any of its\naffiliates (other than Seawell, its subsidiaries and any affiliate of Seadrill Ltd who is an officer or director of Seawell or any of its subsidiaries\nand is acting in such capacity) shall constitute an affiliate of Seawell.\nTo induce the Parties to proceed with their evaluation of a Potential Transaction, the Parties agree that during the Exclusivity Period\ndescribed below, they will not, directly or indirectly, conduct any negotiations with, or solicit any offers from, any third party for the\nacquisition of any of their respective outstanding capital stock, the acquisition of any material portion of their respective assets or properties, or\nfor the merger or consolidation of either of them or their respective subsidiaries; provided, however that the foregoing shall not restrict Seawell\nfrom conducting any such negotiations with, or soliciting any such offers from, Seadrill Ltd or any of its affiliates. The “Exclusivity Period”\nshall be the period beginning on the date of execution of this Agreement by the Parties and ending on the earlier of (i) the execution of a\ndefinitive agreement regarding the Potential Transaction and (ii) August 3, 2010. The Parties hereby acknowledge and agree that (x) Allis-\nChalmers is in negotiations to purchase all of the outstanding capital stock of American Well Control, Inc., (y) Seawell is pursuing an\nacquisition of Rig Inspection Services and (z) Seawell is negotiating a joint venture with IKM Elektro AS, and none of such transactions shall\nbe subject to the prohibitions of this paragraph.\nExcept as expressly provided herein, the Agreement shall remain in full force and effect.\nThis letter agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which shall constitute the\nsame agreement.\nSeawell Limited\nJune 30, 2010\nPage 3\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this letter agreement, which will constitute\nour agreement with respect to the matters set forth herein.\n(Remainder of page left intentionally blank)\nVery truly yours,\nAllis-Chalmers Energy Inc.\n/s/ Munawar H. Hidayatallah\nMunawar H. Hidayatallah\nChief Executive Officer and Chairman\nAgreed to this\nday of July 2010:\nSeawell Limited\nBy: /s/ Jorgen P. Rasmussen\nName: Jorgen P. Rasmsussun\nTitle: Executive Chairman\nSeadrill Limited\nBy: /s/ Alf Thorkildsen\nName: Alf Thorkildsen\nTitle:\nSeawell Limited\n14-Par-la-Ville Road\nHamilton HMGX\nBermuda\nRegistration No. 40612\nAugust 3, 2010\nCONFIDENTIAL\nAllis-Chalmers Energy Inc.\n5075 Westheimer, Suite 890\nHouston, Texas 77056\nAttention: Munawar H. Hidayatallah, Chief Executive Officer and Chairman\nRe: Amendment to Confidentiality Agreement dated as of June 23, 2010, as amended.\nGentlemen:\nReference is made hereby to the Confidentiality Agreement dated as of June 23, 2010, as amended as of June 30, 2010 (the “Agreement”), by\nand between Allis-Chalmers Energy Inc. (“Allis-Chalmers”) and Seawell Limited (“Seawell” and together with Allis-Chalmers, the “Parties”). This\nletter shall serve to evidence the agreement of the Parties to amend the Agreement, as of the date first set forth above, as follows: the reference to\n“August 3, 2010” in the last paragraph of the Agreement is hereby amended to read “August 10, 2010”.\nExcept as expressly provided herein, the Agreement shall remain in full force and effect. This letter agreement may be executed in\ncounterparts, each of which shall be deemed to be an original, but both of which shall constitute the same agreement.\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this letter agreement, which will constitute\nour agreement with respect to the matters set forth herein.\n(Remainder of page left intentionally blank)\nVery truly yours,\nSeawell Limited\n/s/ Jorgen Rasmussen\nJorgen Rasmussen\nChairman\nAgreed to this\nday of August 2010:\nAllis-Chalmers Energy Inc.\nBy: /s/ Munawar H. Hidayatallah\nMunawar H. Hidayatallah\nChief Executive Officer and Chairman 804dff42b6476d157f86d35b89a6e48b.pdf effective_date jurisdiction party term EXHIBIT B FORM OF NON-DISCLOSURE AGREEMENT NONDISCLOSURE AGREEMENT THIS\nNONDISCLOSURE AGREEMENT ("Agreement") dated as of ____________________, 200_____is entered into by\nand between AlgoRx Pharmaceuticals, Inc., a Delaware corporation ("AlgoRx"),\nand_________________________________________________, a\n_______________[CORPORATION] (the "Recipient"). 1. Confidential Information. For their mutual benefit, AlgoRx\nintends to discuss and disclose certain of its confidential information in connection with [INSERT A DESCRIPTION OF\nACTIVITY THAT RECIPIENT IS PERFORMING FOR ALGORX] (the "AlgoRx Matter"). Confidential Information\nshall mean information including, without limitation, a formula, pattern, trade secret, compilation, program, method,\ntechnique, process, biological material, gene sequence, cell line, assay, chemical compound, model, invention, work of\nauthorship, inventions, know-how, experimental work, sample, data, design, source code, research plan, business plan,\nbusiness opportunity, customer, employee or personnel list, or financial statement on date proprietary to AlgoRx that\nderives independent economic value, actual or potential, for not being generally known to the public or to other persons\nwho can obtain economic value from its disclosure or use. Confidential Information includes, but is not limited to,\ninformation disclosed in connection with the AlgoRx Matter. However, Confidential Information shall not include\ninformation that: (i) is now or subsequently becomes generally available to the public through no wrongful act or\nomission of the Recipient; (ii) the Recipient can demonstrate by written records to have had rightfully in its possession\nprior to disclosure to the Recipient by AlgoRx; or (iii) the Recipient rightfully obtains from a third party who has the\nright to transfer or disclose it. AlgoRx shall mark the material manifestations of its Confidential Information as being\nconfidential and proprietary so that the Recipient is aware that its receipt is governed by the terms of this Agreement. The\nforegoing notwithstanding, the terms of this Agreement also pertain to materials not so marked if AlgoRx informs the\nRecipient of their confidential nature or if the Recipient otherwise knows or should reasonably be expected to know of\ntheir confidential nature. 2. Nondisclosure. Except as has been specifically authorized by AlgoRx in writing, the\nRecipient shall not reproduce, use, distribute, disclose or otherwise disseminate the Confidential Information and shall\nnot take any action causing, or fail to take any reasonable action necessary to prevent, any Confidential Information\ndisclosed to the Recipient pursuant to this Agreement to lose its character as Confidential Information. In the event the\nRecipient is required to disclose any Confidential Information pursuant to law or government regulation, the Recipient\nshall promptly notify AlgoRx in order to allow AlgoRx the maximum time to obtain protective or confidential treatment\nof the Confidential Information before it is disclosed. Upon termination of the discussion or evaluation of the AlgoRx\nMatter or upon request by AlgoRx, the Recipient shall promptly deliver to AlgoRx or destroy all Confidential\nInformation and all embodiments thereof then in its custody, control or possession and shall deliver within five days after\nsuch termination or request a written statement to AlgoRx certifying to such action. 3. Ownership. All Confidential\nInformation shall remain the property of AlgoRx and no license or other right to such information is granted or implied\nhereby. Neither this Agreement nor the disclosing of Confidential Information to the Recipient constitutes any grant,\nright, license or assignment to the Recipient under any copyright, patent, trademark or other rights now or hereafter\nowned or controlled by AlgoRx. The AlgoRx Matter and all Confidential Information developed in connection therewith\nshall be the sole and exclusive property of AlgoRx. In the event any such Confidential Information developed in\nconnection with the AlgoRx Matter is deemed not to be the property of AlgoRx, the Recipient hereby assigns all rights\nthereto to AlgoRx and hereby agrees to sign all instruments reasonably necessary in the opinion of AlgoRx to eliminate\nany ambiguity as to ownership by AlgoRx, and Recipient hereby grants to AlgoRx a limited power-of-attorney to\nexecute any such instrument in the name of and on behalf of the Recipient to effect such assignment. 4. Duties of the\nRecipient. The Recipient agrees that access to Confidential Information will be limited to those employees or other\nauthorized representatives of the Recipient, as applicable, who: (a) need to know such Confidential Information in\nconnection with their work on the AlgoRx Matter; and (b) have agreed with the Recipient obligating them to maintain\nthe confidentiality of information disclosed to them and designated or defined as confidential. The Recipient further\nagrees to inform such employees or authorized representatives, as applicable, of the confidential nature of Confidential\nInformation and agrees to take all necessary steps to ensure that the terms of this Agreement are not violated by them.\nThe Recipient further agrees to promptly inform AlgoRx of any unauthorized disclosure or use of the Confidential\nInformation. 5. Equitable Relief. The Recipient hereby acknowledges that unauthorized disclosure or use of Confidential\nInformation could cause great or irreparable injury to AlgoRx and that pecuniary compensation would not afford\nadequate relief or it would be extremely difficult to ascertain the amount of compensation which would afford adequate\nrelief. Therefore, the Recipient agrees that AlgoRx will have the right to seek and obtain injunctive relief (without the\nrequirement to post a bond) in addition to any other rights and remedies it may have. 6. Indemnity. The Recipient agrees\nto indemnify AlgoRx for any loss or damage suffered as a result of any breach by the Recipient of the terms of this\nAgreement including any reasonable fees and expenses incurred by AlgoRx in the collection of such indemnity. 7. Term.\nThe Recipient's duty to protect Confidential Information pursuant to this Agreement expires ten years from the date of\ndisclosure of the Confidential Information. 8. Agency. The parties do not intend that any agency or partnership\nrelationship be created between them by this Agreement. 9. Assignment. The Recipient shall not assign its rights or\nobligations under this Agreement without the prior written consent of AlgoRx. 10. Modification. All additions or\nmodifications to this Agreement must be made in writing and must be signed by both parties. 11. Law. This Agreement\nshall be governed by and construed in accordance with the laws of the State of New Jersey applicable to contracts\nentered into and wholly to be performed in the State of New Jersey by New Jersey residents. 12. Notices. Any notice\nrequired or permitted hereunder shall be in writing and shall be deemed effectively given upon personal delivery, three\ndays after deposit in the United States mail, by certified mail, postage prepaid, return receipt requested, or the day after\ndelivery to a recognized overnight courier, to the following addresses: ALGORX RECIPIENT ALGORX\nPHARMACEUTICALS, INC. _________________________________________ 500 Plaza Drive, 2nd Floor\n_________________________________________\nSecaucus, NJ 07094\n_________________________________________\n______ ___________________________________\nAttention:\nPresident Attention: ______________________________ IN WITNESS WHEREOF, the parties hereto have executed\nthis Agreement as of the date first written above. ALGORX PHARMACEUTICALS, INC.\n_________________________________________\nBy:______________________________\nBy:______________________________________ Name:____________________________\nName:____________________________________ Title:___________________________\nTitle:___________________________________ Date:____________________________\nDate:____________________________________ EXHIBIT B FORM OF NON-DISCLOSURE AGREEMENT NONDISCLOSURE AGREEMENT THIS\nNONDISCLOSURE AGREEMENT ("Agreement") dated as of , 200 is entered into by\nand between AlgoRx Pharmaceuticals, Inc., a Delaware corporation ("AlgoRx"),\nand ,a\n[CORPORATION] (the "Recipient"). 1. Confidential Information. For their mutual benefit, AlgoRx\nintends to discuss and disclose certain of its confidential information in connection with [INSERT A DESCRIPTION OF\nACTIVITY THAT RECIPIENT IS PERFORMING FOR ALGORX] (the "AlgoRx Matter"). Confidential Information\nshall mean information including, without limitation, a formula, pattern, trade secret, compilation, program, method,\ntechnique, process, biological material, gene sequence, cell line, assay, chemical compound, model, invention, work of\nauthorship, inventions, know-how, experimental work, sample, data, design, source code, research plan, business plan,\nbusiness opportunity, customer, employee or personnel list, or financial statement on date proprietary to AlgoRx that\nderives independent economic value, actual or potential, for not being generally known to the public or to other persons\nwho can obtain economic value from its disclosure or use. Confidential Information includes, but is not limited to,\ninformation disclosed in connection with the AlgoRx Matter. However, Confidential Information shall not include\ninformation that: (i) is now or subsequently becomes generally available to the public through no wrongful act or\nomission of the Recipient; (ii) the Recipient can demonstrate by written records to have had rightfully in its possession\nprior to disclosure to the Recipient by AlgoRx; or (iii) the Recipient rightfully obtains from a third party who has the\nright to transfer or disclose it. AlgoRx shall mark the material manifestations of its Confidential Information as being\nconfidential and proprietary so that the Recipient is aware that its receipt is governed by the terms of this Agreement. The\nforegoing notwithstanding, the terms of this Agreement also pertain to materials not so marked if AlgoRx informs the\nRecipient of their confidential nature or if the Recipient otherwise knows or should reasonably be expected to know of\ntheir confidential nature. 2. Nondisclosure. Except as has been specifically authorized by AlgoRx in writing, the\nRecipient shall not reproduce, use, distribute, disclose or otherwise disseminate the Confidential Information and shall\nnot take any action causing, or fail to take any reasonable action necessary to prevent, any Confidential Information\ndisclosed to the Recipient pursuant to this Agreement to lose its character as Confidential Information. In the event the\nRecipient is required to disclose any Confidential Information pursuant to law or government regulation, the Recipient\nshall promptly notify AlgoRx in order to allow AlgoRx the maximum time to obtain protective or confidential treatment\nof the Confidential Information before it is disclosed. Upon termination of the discussion or evaluation of the AlgoRx\nMatter or upon request by AlgoRx, the Recipient shall promptly deliver to AlgoRx or destroy all Confidential\n \n \nInformation and all embodiments thereof then in its custody, control or possession and shall deliver within five days after\nsuch termination or request a written statement to AlgoRx certifying to such action. 3. Ownership. All Confidential\nInformation shall remain the property of AlgoRx and no license or other right to such information is granted or implied\nhereby. Neither this Agreement nor the disclosing of Confidential Information to the Recipient constitutes any grant,\nright, license or assignment to the Recipient under any copyright, patent, trademark or other rights now or hereafter\nowned or controlled by AlgoRx. The AlgoRx Matter and all Confidential Information developed in connection therewith\nshall be the sole and exclusive property of AlgoRx. In the event any such Confidential Information developed in\nconnection with the AlgoRx Matter is deemed not to be the property of AlgoRx, the Recipient hereby assigns all rights\nthereto to AlgoRx and hereby agrees to sign all instruments reasonably necessary in the opinion of AlgoRx to eliminate\nany ambiguity as to ownership by AlgoRx, and Recipient hereby grants to AlgoRx a limited power-of-attorney to\nexecute any such instrument in the name of and on behalf of the Recipient to effect such assignment. 4. Duties of the\nRecipient. The Recipient agrees that access to Confidential Information will be limited to those employees or other\nauthorized representatives of the Recipient, as applicable, who: (a) need to know such Confidential Information in\nconnection with their work on the AlgoRx Matter; and (b) have agreed with the Recipient obligating them to maintain\nthe confidentiality of information disclosed to them and designated or defined as confidential. The Recipient further\nagrees to inform such employees or authorized representatives, as applicable, of the confidential nature of Confidential\nInformation and agrees to take all necessary steps to ensure that the terms of this Agreement are not violated by them.\nThe Recipient further agrees to promptly inform AlgoRx of any unauthorized disclosure or use of the Confidential\nInformation. 5. Equitable Relief. The Recipient hereby acknowledges that unauthorized disclosure or use of Confidential\nInformation could cause great or irreparable injury to AlgoRx and that pecuniary compensation would not afford\nadequate relief or it would be extremely difficult to ascertain the amount of compensation which would afford adequate\nrelief. Therefore, the Recipient agrees that AlgoRx will have the right to seek and obtain injunctive relief (without the\nrequirement to post a bond) in addition to any other rights and remedies it may have. 6. Indemnity. The Recipient agrees\nto indemnify AlgoRx for any loss or damage suffered as a result of any breach by the Recipient of the terms of this\nAgreement including any reasonable fees and expenses incurred by AlgoRx in the collection of such indemnity. 7. Term.\nThe Recipient's duty to protect Confidential Information pursuant to this Agreement expires ten years from the date of\ndisclosure of the Confidential Information. 8. Agency. The parties do not intend that any agency or partnership\nrelationship be created between them by this Agreement. 9. Assignment. The Recipient shall not assign its rights or\nobligations under this Agreement without the prior written consent of AlgoRx. 10. Modification. All additions or\nmodifications to this Agreement must be made in writing and must be signed by both parties. 11. Law. This Agreement\nshall be governed by and construed in accordance with the laws of the State of New Jersey applicable to contracts\nentered into and wholly to be performed in the State of New Jersey by New Jersey residents. 12. Notices. Any notice\nrequired or permitted hereunder shall be in writing and shall be deemed effectively given upon personal delivery, three\ndays after deposit in the United States mail, by certified mail, postage prepaid, return receipt requested, or the day after\ndelivery to a recognized overnight courier, to the following addresses: ALGORX RECIPIENT ALGORX\nPHARMACEUTICALS, INC. 500 Plaza Drive, 2nd Floor\nSecaucus, NJ 07094\n \n \n \n \n \n \n \n \nAttention:\nPresident Attention: IN WITNESS WHEREOF, the parties hereto have executed\nthis Agreement as of the date first written above. ALGORX PHARMACEUTICALS, INC.\nBy:\nBy: Name:\nName: Title:\nTitle: Date:\n \n \nDate:\n EXHIBIT B FORM OF NON-DISCLOSURE AGREEMENT NONDISCLOSURE AGREEMENT THIS\nNONDISCLOSURE AGREEMENT ("Agreement") dated as of\n200\nentered into by\nand between AlgoRx Pharmaceuticals, Inc., a Delaware corporation ("AlgoRx"),\nand\na\n[CORPORATION] (the "Recipient"). 1. Confidential Information. For their mutual benefit, AlgoRx\nintends to discuss and disclose certain of its confidential information in connection with [INSERT A DESCRIPTION\nOF\nACTIVITY THAT RECIPIENT IS PERFORMING FOR ALGORX] (the "AlgoRx Matter"). Confidential Information\nshall mean information including, without limitation, a formula, pattern, trade secret, compilation, program, method,\ntechnique, process, biological material, gene sequence, cell line, assay, chemical compound, model, invention, work of\nauthorship, inventions, know-how, experimental work, sample, data, design, source code, research plan, business plan,\nbusiness opportunity, customer, employee or personnel list, or financial statement on date proprietary to AlgoRx that\nderives independent economic value, actual or potential, for not being generally known to the public or to other persons\nwho can obtain economic value from its disclosure or use. Confidential Information includes, but is not limited to,\ninformation disclosed in connection with the AlgoRx Matter. However, Confidential Information shall not include\ninformation that: (i) is now or subsequently becomes generally available to the public through no wrongful act or\nomission of the Recipient; (ii) the Recipient can demonstrate by written records to have had rightfully in its possession\nprior to disclosure to the Recipient by AlgoRx; or (iii) the Recipient rightfully obtains from a third party who has the\nright to transfer or disclose it. AlgoRx shall mark the material manifestations of its Confidential Information as being\nconfidential and proprietary so that the Recipient is aware that its receipt is governed by the terms of this Agreement. The\nforegoing notwithstanding, the terms of this Agreement also pertain to materials not so marked if AlgoRx informs the\nRecipient of their confidential nature or if the Recipient otherwise knows or should reasonably be expected to know of\ntheir confidential nature. 2. Nondisclosure. Except as has been specifically authorized by AlgoRx in writing, the\nRecipient shall not reproduce, use, distribute, disclose or otherwise disseminate the Confidential Information and shall\nnot take any action causing, or fail to take any reasonable action necessary to prevent, any Confidential Information\ndisclosed to the Recipient pursuant to this Agreement to lose its character as Confidential Information. In the event the\nRecipient is required to disclose any Confidential Information pursuant to law or government regulation, the Recipient\nshall promptly notify AlgoRx in order to allow AlgoRx the maximum time to obtain protective or confidential treatment\nof the Confidential Information before it is disclosed. Upon termination of the discussion or evaluation of the AlgoRx\nMatter or upon request by AlgoRx, the Recipient shall promptly deliver to AlgoRx or destroy all Confidential\nInformation and all embodiments thereof then in its custody, control or possession and shall deliver within five days after\nsuch termination or request a written statement to AlgoRx certifying to such action. 3. Ownership. All Confidential\nInformation\nshall remain the property of AlgoRx and no license or other right to such information is granted or implied\nhereby. Neither this Agreement nor the disclosing of Confidential Information to the Recipient constitutes any grant,\nright, license or assignment to the Recipient under any copyright, patent, trademark or other rights now or hereafter\nowned or controlled by AlgoRx. The AlgoRx Matter and all Confidential Information developed in connection therewith\nshall be the sole and exclusive property of AlgoRx. In the event any such Confidential Information developed in\nconnection with the AlgoRx Matter is deemed not to be the property of AlgoRx, the Recipient hereby assigns all rights\nthereto to AlgoRx and hereby agrees to sign all instruments reasonably necessary in the opinion of AlgoRx to eliminate\nany ambiguity as to ownership by AlgoRx, and Recipient hereby grants to AlgoRx a limited power-of-attorney to\nexecute any such instrument in the name of and on behalf of the Recipient to effect such assignment. 4. Duties of the\nRecipient. The Recipient agrees that access to Confidential Information will be limited to those employees or other\nauthorized representatives of the Recipient, as applicable, who: (a) need to know such Confidential Information\nin\nconnection with their work on the AlgoRx Matter; and (b) have agreed with the Recipient obligating them to maintain\nthe confidentiality of information disclosed to them and designated or defined as confidential. The Recipient further\nagrees\nto\ninform\nsuch\nemployees\nor\nauthorized\nrepresentatives,\nas\napplicable,\nof\nthe\nconfidential\nnature\nof\nConfidential\nInformation and agrees to take all necessary steps to ensure that the terms of this Agreement are not violated by them.\nThe Recipient further agrees to promptly inform AlgoRx of any unauthorized disclosure or use of the Confidential\nInformation. 5. Equitable Relief. The Recipient hereby acknowledges that unauthorized disclosure or use of Confidential\nInformation could cause great or irreparable injury to AlgoRx and that pecuniary compensation would not afford\nadequate relief or it would be extremely difficult to ascertain the amount of compensation which would afford adequate\nrelief. Therefore, the Recipient agrees that AlgoRx will have the right to seek and obtain injunctive relief (without the\nrequirement to post a bond) in addition to any other rights and remedies it may have. 6. Indemnity. The Recipient agrees\nto indemnify AlgoRx for any loss or damage suffered as a result of any breach by the Recipient of the terms of this\nAgreement including any reasonable fees and expenses incurred by AlgoRx in the collection of such indemnity. 7. Term.\nThe Recipient's duty to protect Confidential Information pursuant to this Agreement expires ten years from the date\nof\ndisclosure of the Confidential Information. 8. Agency. The parties do not intend that any agency or partnership\nrelationship be created between them by this Agreement. 9. Assignment. The Recipient shall not assign its rights\nor\nobligations under this Agreement without the prior written consent of AlgoRx. 10. Modification. All additions or\nmodifications to this Agreement must be made in writing and must be signed by both parties. 11. Law. This Agreement\nshall be governed by and construed in accordance with the laws of the State of New Jersey applicable to contracts\nentered into and wholly to be performed in the State of New Jersey by New Jersey residents. 12. Notices. Any notice\nrequired or permitted hereunder shall be in writing and shall be deemed effectively given upon personal delivery, three\ndays after deposit in the United States mail, by certified mail, postage prepaid, return receipt requested, or the day after\ndelivery to a recognized overnight courier, to the following addresses: ALGORX RECIPIENT ALGORX\nPHARMACEUTICALS, INC.\n500 Plaza Drive, 2nd Floor\nSecaucus, NJ 07094\nAttention:\nPresident Attention:\nIN WITNESS WHEREOF, the parties hereto have executed\nthis Agreement as of the date first written above. ALGORX PHARMACEUTICALS, INC.\nBy:\nBy:\nName:\nName:\nTitle:\nTitle: Date:\nDate: EXHIBIT B FORM OF NON-DISCLOSURE AGREEMENT NONDISCLOSURE AGREEMENT THIS\nNONDISCLOSURE AGREEMENT ("Agreement") dated as of ____________________, 200_____is entered into by\nand between AlgoRx Pharmaceuticals, Inc., a Delaware corporation ("AlgoRx"),\nand_________________________________________________, a\n_______________[CORPORATION] (the "Recipient"). 1. Confidential Information. For their mutual benefit, AlgoRx\nintends to discuss and disclose certain of its confidential information in connection with [INSERT A DESCRIPTION OF\nACTIVITY THAT RECIPIENT IS PERFORMING FOR ALGORX] (the "AlgoRx Matter"). Confidential Information\nshall mean information including, without limitation, a formula, pattern, trade secret, compilation, program, method,\ntechnique, process, biological material, gene sequence, cell line, assay, chemical compound, model, invention, work of\nauthorship, inventions, know-how, experimental work, sample, data, design, source code, research plan, business plan,\nbusiness opportunity, customer, employee or personnel list, or financial statement on date proprietary to AlgoRx that\nderives independent economic value, actual or potential, for not being generally known to the public or to other persons\nwho can obtain economic value from its disclosure or use. Confidential Information includes, but is not limited to,\ninformation disclosed in connection with the AlgoRx Matter. However, Confidential Information shall not include\ninformation that: (i) is now or subsequently becomes generally available to the public through no wrongful act or\nomission of the Recipient; (ii) the Recipient can demonstrate by written records to have had rightfully in its possession\nprior to disclosure to the Recipient by AlgoRx; or (iii) the Recipient rightfully obtains from a third party who has the\nright to transfer or disclose it. AlgoRx shall mark the material manifestations of its Confidential Information as being\nconfidential and proprietary so that the Recipient is aware that its receipt is governed by the terms of this Agreement. The\nforegoing notwithstanding, the terms of this Agreement also pertain to materials not so marked if AlgoRx informs the\nRecipient of their confidential nature or if the Recipient otherwise knows or should reasonably be expected to know of\ntheir confidential nature. 2. Nondisclosure. Except as has been specifically authorized by AlgoRx in writing, the\nRecipient shall not reproduce, use, distribute, disclose or otherwise disseminate the Confidential Information and shall\nnot take any action causing, or fail to take any reasonable action necessary to prevent, any Confidential Information\ndisclosed to the Recipient pursuant to this Agreement to lose its character as Confidential Information. In the event the\nRecipient is required to disclose any Confidential Information pursuant to law or government regulation, the Recipient\nshall promptly notify AlgoRx in order to allow AlgoRx the maximum time to obtain protective or confidential treatment\nof the Confidential Information before it is disclosed. Upon termination of the discussion or evaluation of the AlgoRx\nMatter or upon request by AlgoRx, the Recipient shall promptly deliver to AlgoRx or destroy all Confidential\nInformation and all embodiments thereof then in its custody, control or possession and shall deliver within five days after\nsuch termination or request a written statement to AlgoRx certifying to such action. 3. Ownership. All Confidential\nInformation shall remain the property of AlgoRx and no license or other right to such information is granted or implied\nhereby. Neither this Agreement nor the disclosing of Confidential Information to the Recipient constitutes any grant,\nright, license or assignment to the Recipient under any copyright, patent, trademark or other rights now or hereafter\nowned or controlled by AlgoRx. The AlgoRx Matter and all Confidential Information developed in connection therewith\nshall be the sole and exclusive property of AlgoRx. In the event any such Confidential Information developed in\nconnection with the AlgoRx Matter is deemed not to be the property of AlgoRx, the Recipient hereby assigns all rights\nthereto to AlgoRx and hereby agrees to sign all instruments reasonably necessary in the opinion of AlgoRx to eliminate\nany ambiguity as to ownership by AlgoRx, and Recipient hereby grants to AlgoRx a limited power-of-attorney to\nexecute any such instrument in the name of and on behalf of the Recipient to effect such assignment. 4. Duties of the\nRecipient. The Recipient agrees that access to Confidential Information will be limited to those employees or other\nauthorized representatives of the Recipient, as applicable, who: (a) need to know such Confidential Information in\nconnection with their work on the AlgoRx Matter; and (b) have agreed with the Recipient obligating them to maintain\nthe confidentiality of information disclosed to them and designated or defined as confidential. The Recipient further\nagrees to inform such employees or authorized representatives, as applicable, of the confidential nature of Confidential\nInformation and agrees to take all necessary steps to ensure that the terms of this Agreement are not violated by them.\nThe Recipient further agrees to promptly inform AlgoRx of any unauthorized disclosure or use of the Confidential\nInformation. 5. Equitable Relief. The Recipient hereby acknowledges that unauthorized disclosure or use of Confidential\nInformation could cause great or irreparable injury to AlgoRx and that pecuniary compensation would not afford\nadequate relief or it would be extremely difficult to ascertain the amount of compensation which would afford adequate\nrelief. Therefore, the Recipient agrees that AlgoRx will have the right to seek and obtain injunctive relief (without the\nrequirement to post a bond) in addition to any other rights and remedies it may have. 6. Indemnity. The Recipient agrees\nto indemnify AlgoRx for any loss or damage suffered as a result of any breach by the Recipient of the terms of this\nAgreement including any reasonable fees and expenses incurred by AlgoRx in the collection of such indemnity. 7. Term.\nThe Recipient's duty to protect Confidential Information pursuant to this Agreement expires ten years from the date of\ndisclosure of the Confidential Information. 8. Agency. The parties do not intend that any agency or partnership\nrelationship be created between them by this Agreement. 9. Assignment. The Recipient shall not assign its rights or\nobligations under this Agreement without the prior written consent of AlgoRx. 10. Modification. All additions or\nmodifications to this Agreement must be made in writing and must be signed by both parties. 11. Law. This Agreement\nshall be governed by and construed in accordance with the laws of the State of New Jersey applicable to contracts\nentered into and wholly to be performed in the State of New Jersey by New Jersey residents. 12. Notices. Any notice\nrequired or permitted hereunder shall be in writing and shall be deemed effectively given upon personal delivery, three\ndays after deposit in the United States mail, by certified mail, postage prepaid, return receipt requested, or the day after\ndelivery to a recognized overnight courier, to the following addresses: ALGORX RECIPIENT ALGORX\nPHARMACEUTICALS, INC. _________________________________________ 500 Plaza Drive, 2nd Floor\n_________________________________________\nSecaucus, NJ 07094\n_________________________________________\n______ ___________________________________\nAttention:\nPresident Attention: ______________________________ IN WITNESS WHEREOF, the parties hereto have executed\nthis Agreement as of the date first written above. ALGORX PHARMACEUTICALS, INC.\n_________________________________________\nBy:______________________________\nBy:______________________________________ Name:____________________________\nName:____________________________________ Title:___________________________\nTitle:___________________________________ Date:____________________________\nDate:____________________________________ 809abb3273c6043d409ec5440de965d5.pdf effective_date jurisdiction party term EX-99.(D)(3) 9 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nNovember 6, 2009\nHID Global Corporation\n15370 Barranca Parkway\nIrvine, CA 92618\nAttention: Tim Moxon, Director, Mergers & Acquisitions\nDear HID Global Corporation:\nIn connection with your consideration of a possible transaction with LaserCard Corporation (the “Company”) (a “Transaction”), you have\nrequested the right to review certain non-public information of the Company. In consideration of, and as a condition to, furnishing you with such\ninformation and any other information (whether in oral or written form, electronically stored or otherwise) delivered to you or any of your affiliates\n(as defined in paragraph 5 hereof), directors, officers, employees, legal or financial advisors, agents, representatives or “controlling persons” (within\nthe meaning of the Securities Exchange Act of 1934, as amended (the “1934 Act”)) (such persons with respect to any person being herein referred to\ncollectively as that person’s “Representatives”) by us or our Representatives (such information, whether in written, oral, electronic or other form\nand whether prepared or made available to you before, on or after the date hereof, as well as any notes, analyses, compilations, studies, documents or\nother materials prepared by or on behalf of you or your Representatives which contain, are based on, derived from or otherwise reflect in whole or in\npart such information, in whatever form maintained or derived, collectively being referred to herein as “Evaluation Material”) in connection with\nyour consideration of the Transaction, as well as a condition to further discussions among the parties, the parties agree, as follows:\n1. You and your Representatives (i) will use the Evaluation Material solely for the purpose of evaluating the Transaction with the Company\nby you or your affiliates, and (ii) will keep the Evaluation Material strictly confidential and will not (except as required by applicable\nlaw, regulation, legal process, civil or regulatory investigative demand or other similar process, and in such case only in compliance with\nparagraph 3 below), without the Company’s prior written consent, disclose any of the Evaluation Material to any person, except that the\nEvaluation Material (or portions thereof) may be disclosed to those of your Representatives who need to know such information solely\nfor the purpose of evaluating the Transaction with the Company (provided that prior to such disclosure your Representatives will be\ninformed of the confidential nature of the Evaluation Material and shall agree to be bound by this letter agreement to the same extent as\nif they were parties thereto). You agree to be responsible for any breach of this letter agreement by your Representatives, and that the\nCompany shall be entitled to directly enforce such agreement against you (it being understood that such responsibility shall be in\naddition to and not by way of limitation of any right or remedy the Company may have against your Representatives with respect to such\nbreach). You shall secure and safeguard any and all information, documents, work in process, and work product that embodies\nEvaluation Material to reasonably restrict access and prevent unauthorized use and/or disclosure. You further agree that you will\nmaintain reasonable procedures to protect the secrecy of and prevent accidental or other loss or unauthorized use of any Evaluation\nMaterial. You shall reproduce the Company’s proprietary rights notices on any copies of Evaluation Material, in the same manner in\nwhich such notices were set forth in or on the original. You shall not reverse engineer, disassemble or decompile any prototypes,\nsoftware or other tangible objects that embody Evaluation Material.\nThe parties recognize and acknowledge the competitive value of the Transaction Information (as such term is defined in paragraph 4\nhereof) and Evaluation Material and the damage that could result to the Company if the Transaction Information or Evaluation Material\nwere used or disclosed except as authorized by this letter agreement. You understand that some Evaluation Material deemed\ncompetitively sensitive may be designated for review solely by your outside advisors or by those of your employees whose\nresponsibilities do not include contacting customers or potential customers or the determination of product pricing, and you agree to, and\nto cause your Representatives to, abide by such designation.\n2. The term “Evaluation Material” does not include any information which (1) at the time of disclosure or thereafter is generally known by\nthe public (other than as a result of its disclosure by you or your Representatives), (ii) was or becomes available to you on a non-\nconfidential basis from a person not known by you (after reasonable inquiry) to be bound by a confidentiality agreement with the\nCompany or its Representatives or who is not known by you (after reasonable inquiry) to be prohibited from transmitting the information\nto you, (iii) is within your possession prior to it being furnished to you, provided that the person providing such information was not\nknown by you (after reasonable inquiry) to be bound by a confidentiality agreement or obligation with or to the Company or its\nRepresentatives or (iii) was independently developed by you or your Representatives without violation of any of your obligations under\nthis letter agreement and without any use of or reference to any Evaluation Material. As used in this letter agreement, the term “person”\nshall be broadly interpreted to include, without limitation, any corporation, company, partnership, limited liability company, group,\nassociation or other entity or individual, acting individually or together.\n3. In the event that either party or its Representatives receives a request or is required to disclose any Transaction Information (as defined\nbelow) or you or your Representatives receive a request or are required to disclose all or any part of the information contained in the\nEvaluation Material pursuant to the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction or a\ngovernmental or regulatory body or pursuant to a civil investigative demand or similar process (including, without limitation, by oral\nquestions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil or regulatory investigative\ndemand or other similar process), the parties agree to (i) where lawful , promptly notify the counterparty of the existence, terms and\ncircumstances surrounding such a request, so that the party seeking to limit disclosure may seek an appropriate protective order, at the\nsole expense of the party seeking to limit disclosure, and/or waive compliance with the provisions of this letter agreement (and, if the\nparty seeking to limit disclosure seeks such an order, to provide such cooperation as the party seeking to limit disclosure shall reasonably\nrequest), (ii) if such protective order or remedy is not obtained or the party seeking to limit disclosure waives compliance with the\nprovisions of this letter agreement, and if disclosure of such information is required upon the advice of counsel, disclose only such\ninformation which the disclosing party is advised by its counsel is legally required to be disclosed and (iii) exercise commercially\nreasonable efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such information and\ncooperate fully with any efforts of the party seeking to limit disclosure to achieve the same, at the sole expense of the party seeking to\nlimit disclosure.\n4. Unless otherwise required by law in the opinion of counsel, neither party nor its Representatives will, without the counterparty’s prior\nwritten consent, disclose to any person the existence of this letter agreement or provide a copy of this letter agreement to any person,\ndisclose to any person the fact that the Company is considering a possible transaction between the parties, disclose to any person either\nthe fact that discussions or negotiations are taking place concerning a Transaction between the parties, or any of the terms, conditions or\nother facts with respect to any such Transaction, including, without limitation, the status thereof and the fact that the Evaluation Material\nhas been made available to you (the information referred to in this paragraph 4, the “Transaction Information”).\n5. You agree that for a period of two years from the date of this letter agreement, neither you nor any of your affiliates will, directly or\nindirectly, solicit for purposes of employment as an employee or retention as’ a contractor, any of the officers or senior level employees,\nidentified in connection with your evaluation of the Transaction, of the Company or its affiliates, or otherwise solicit, induce or\notherwise encourage any officer or senior level employee of the Company or its affiliates to discontinue, cancel or refrain from entering\ninto any relationship (contractual or otherwise) with the Company or any affiliate of the Company, without the Company’s prior written\nconsent; provided,\nhowever, you shall not be prohibited from employing any such person who, without any direct or indirect solicitation by you, contacts\nyou on his or her own initiative, including without limitation as a result of any general solicitation for employment made to the public.\nGeneralized searches for employees in the ordinary course of business consistent with past practice through the use of advertisements in\nthe media (including the trade media) or Web site job postings shall not constitute solicitation for purposes of this Section. The\nengagement of a recruiting firm to the extent that such firm’s efforts are not specifically targeted at any officer or employee of the\nCompany shall also not constitute solicitation for purposes of this Section. For purposes of this letter agreement, “affiliate” means as to\nany person, any other person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such person or\nthat owns more than 50% of the voting stock of such person. The term “control” (including, with correlative meanings, the terms\n“controlled by” and “under common control with”), as applied to any person, means the possession, direct or indirect, of the power to\ndirect or cause the direction of the management and policies of such person, whether through the ownership of voting securities or other\nownership interest, by contract or otherwise.\n6. It is understood that the Company or its Representatives may arrange for appropriate contacts for due diligence purposes and, other than\ncommunication with such contacts regarding due diligence matters, until the earlier of (i) the consummation of a transaction between the\nCompany and you, or (ii) two (2) years from the date of this letter agreement, you will not, and will cause your Representatives not to,\ninitiate or maintain contact with any officer, director, employee, agent, affiliate, supplier, distributor, broker or customer of the Company\nor any of its subsidiaries regarding the Company or any of its subsidiaries or their respective operations, assets, prospects or finances, or\nseek any information in connection with a possible Transaction from such person, except for communications in the ordinary course of\nthe parties’ business or with the express permission of the Company.\n7. You hereby acknowledge that Evaluation Material is being furnished to you in consideration of your agreement, and you hereby agree,\nthat for a period of two (2) years from the date of this letter agreement, you and your Representatives shall not, directly or indirectly, and\nyou shall cause any person or entity controlled by you not to, without the prior written consent of the Company, directly or indirectly,\nalone or jointly or in concert with any other person (including by providing financing to any other person), whether publicly or otherwise\n(i) in any manner acquire, agree to acquire or make any proposal to acquire any securities or property of the Company or any of its\naffiliates, (ii) propose to enter into any merger, consolidation, recapitalization, business combination, partnership, joint venture or other\nsimilar transaction involving the Company or any of its affiliates, (iii) make, or in any way participate in any “solicitation” of “proxies”\n(as such terms are used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person\nwith respect to the voting of any voting securities of the Company or any of its affiliates, (iv) form, join or in any way participate in a\n“group” (within the meaning of Section 13(d)(3) of the 1934 Act) with respect to any of the foregoing or with respect to any voting\nsecurities of the Company or any of its affiliates, (v) otherwise act, alone or in concert with others, to seek to control or influence the\nmanagement, Board of Directors or policies of the Company, (vi) disclose any intention, plan or arrangement inconsistent with the\nforegoing, or (vii) advise, assist or encourage any other persons in connection with any of the foregoing. You also agree during such two-\nyear period not to (x) request the Company (or its Representatives), directly or indirectly, to amend or waive any provision of this\nparagraph 7 (including this sentence) or otherwise consent to any action inconsistent with any provision of this paragraph 7 (including\nthis sentence), (y) take any action (including, without limitation, any request or other communication to the Company or its\nRepresentatives regarding any amendment or waiver of any provision of this paragraph 7) which might require the Company or any of\nits affiliates to make a public announcement regarding this letter agreement, any of the matters referred to in this paragraph 7 or the\npossibility of a merger, consolidation, business combination or other similar transaction, including, without limitation, a Transaction, or\n(z) communicate with the Company’s shareholders regarding the subject matter of this letter agreement. Notwithstanding the foregoing,\nnothing shall prohibit you from submitting a proposal for a transaction to management and the Board of Directors of the Company. In\naddition, in the event that the Board of Directors of the Company shall approve any of the actions referred to in clause (ii) above, then\nnone of the prohibitions of this paragraph 7 shall apply to the matters described in the clause (ii) above with respect to you and such\napproved actions.\n8. You acknowledge that you are aware, and that you will advise your Representatives who receive the Evaluation Material, that the United\nStates securities laws prohibit any person who has material, non-public information concerning the matters which are the subject of this\nletter agreement from purchasing or selling securities of the Company (and options, warrants and rights relating thereto) or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person\nincluding, without limitation, any of your Representatives, is likely to purchase or sell such securities; and you agree to fully comply\nwith such laws.\n9. To the extent that Evaluation Material may include material subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree\nthat they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the\nsharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its\ncontinued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material\nprovided by the Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine.\n10. This Agreement does not constitute or create any obligation of the Company to provide any Evaluation Material or other information to\nyou, but merely defines the duties and obligations of the parties herein. Under no circumstances is the Company obligated to disclose or\nmake available any information, including any Evaluation Material, which in its sole and absolute discretion determines not to disclose.\nNeither this letter agreement nor disclosure of any Evaluation Material to you shall be deemed by implication or otherwise to vest in you\nor your Representatives rights in or to the Evaluation Material, other than the right to use such Evaluation Material solely for the purpose\nof evaluating the Transaction. You understand and acknowledge that neither the Company nor any of its Representatives is making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material or any other information\nprovided to you by the Company or its Representatives. You understand and acknowledge that you may not rely on the accuracy or\ncompleteness of the Evaluation Material and that you may rely solely on those representations and warranties, if any, that are made to\nyou in a definitive agreement regarding the Transaction when, as and if it is executed, subject to such limitations and restrictions as may\nbe specified in such definitive agreement. Neither the Company nor any of its affiliates or Representatives, nor any of our respective\nofficers, directors, employees, agents or controlling persons (within the meaning of the 1934 Act) shall have any liability to you or any\nother person (including, without limitation, any of your Representatives) resulting from your receipt or use of the Evaluation Material,\nunless specified in a definitive agreement. You acknowledge that the Company and its Representatives shall be free to take such actions\nregarding any possible transaction and for the dissemination of Evaluation Material which they in their sole discretion shall determine\nincluding, without limitation, negotiating with any other party and entering into a definitive transaction agreement with any other party\nwithout prior notice to you or any other person or discontinuing discussions or negotiations with you or any other party at any time for\nany reason or for no reason. Negotiations or agreement by us with any third party will not relieve either party or its Representatives from\nits obligations hereunder.\n11. The parties agree that unless and until a definitive agreement between the Company and you with respect to a Transaction has been\nexecuted and delivered, neither party will not be under any legal obligation of any kind whatsoever with respect to such Transaction or\nany other transaction by virtue of (i) this letter agreement or (ii) any written or oral expression with respect to such Transaction by either\nparty’s Representatives except, in the case of this letter agreement, for the matters specifically agreed to herein. For purposes of this\nletter agreement, the term “definitive agreement” does not include an executed letter of intent or any other preliminary written\nagreement, nor does it include any written or oral acceptance of any offer or bid by you.\n12. You agree that the Company has not granted you any license, copyright, patent, trade secret or similar right with respect to any of the\nEvaluation Material or any other information provided to you by the Company or its Representatives.\n13. At the request of the Company in its sole discretion and for any reason, or on your own initiative if you decide not to proceed with a\nTransaction (of which decision you will promptly notify the Company), you will promptly (and in any event no later than 10 business\ndays after the request therefor), at your sole discretion, (a) return to us all of the Evaluation Material, including all copies, reproductions,\nsummaries, analyses or extracts thereof or based thereon in your possession or in the possession of any of your Representatives or\n(b) destroy, unless such destruction is commercially unreasonable and/or in violation of your internal compliance obligations, all such\nEvaluation Material in your possession or in the possession of any of your Representatives (such destruction to be certified promptly in\nwriting to us by your authorized officer supervising such destruction). Notwithstanding any such return or destruction of the Evaluation\nMaterial, you and your Representatives will continue to be bound by your obligations of confidentiality and other obligations hereunder;\nprovided that to the extent any Evaluation Material is retained by you because its return or destruction would be commercially\nunreasonable and/or in violation of your internal compliance obligations, then the non-use and non-disclosure provisions of this letter\nagreement shall (notwithstanding paragraph 22 below) specifically survive for so long as such Evaluation Material is retained by you or\nyour Representatives.\n14. The parties acknowledge that remedies at law may be inadequate to protect the parties against any actual or threatened breach of this\nletter agreement by the counterparty or by its Representatives and, without prejudice to the rights and remedies otherwise available to the\nallegedly harmed party, each party agrees that the allegedly harmed party shall be entitled to equitable relief (including specific\nperformance or injunction) in the allegedly harmed party’s favor without proof of actual damages. Any equitable relief shall not be\ndeemed to be the exclusive remedy for a breach of this letter agreement, but shall be in addition to all other remedies available at law or\nequity.\n15. The validity and interpretation of this letter agreement shall be governed by, and construed and enforced in accordance with, the laws of\nthe State of Delaware applicable to agreements made and to be fully performed therein (excluding the conflicts of laws rules). You\nirrevocably and unconditionally (i) submit to the exclusive jurisdiction of the courts of the State of Delaware for the purpose of any suit,\naction, or other proceeding arising out of or relating to this letter agreement and the transactions contemplated thereby (each a\n“Proceeding”), (ii) agree that all claims in respect of any Proceeding shall be heard and determined exclusively in any such court, and\n(iii) waive, to the fullest extent permitted by law, any immunity you have acquired, or hereafter may acquire, from jurisdiction of any\nsuch court or from any legal process therein, and (iv) agree not to commence any Proceeding other than in such court, and waive, to the\nfullest extent permitted by applicable law, any claim that any such Proceeding brought in any such court has been brought in an\ninconvenient forum.\n16. If it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) that any term or provision hereof is\ninvalid or unenforceable, (i) the remaining terms and provision hereof shall be unimpaired and shall remain in full force and effect and\n(ii) the invalid or unenforceable provision or term shall be replaced by a term or provision that is valid and enforceable and that comes\nclosest to expressing the intention of such invalid or unenforceable term or provision.\n17. This Agreement embodies the entire agreement and understanding of the parties hereto and supersedes any and all prior agreements,\narrangements and understandings relating to the matters provided for herein. No alteration, waiver, amendment, change or supplement\nhereto shall be binding or effective unless the same is set forth in writing signed by a duly authorized representative of each party and the\nsame may be modified or waived only by a separate letter executed by the Company and you expressly so modifying or waiving such\nagreement.\n18. This Agreement may be executed and delivered either originally, by facsimile of the signature page or by e-mail of a scanned copy of the\nsignature page in Adobe Acrobat PDF format, and in one or more counterparts, all of which taken together shall constitute one and the\nsame instrument.\n19. This Agreement will be binding upon the parties and its Representatives and its respective heirs, successors and assigns, and will inure to\nthe benefit of the counterparty and its Representatives and their respective heirs, successors and assigns. Neither party may assign any of\nits rights or obligations hereunder; provided, that, the Company reserves the right to assign its rights, powers and privileges under this\nletter agreement (including, without limitation, the right to enforce the terms of this letter agreement) to any person who enters into a\ntransaction to acquire control of the Company or substantially all of its assets.\n20. Each party shall be responsible for its own costs and expenses incurred in connection with your evaluation of the Transaction.\n21. You acknowledge that the Evaluation Material you receive may include technical data developed in the United States, and therefore, you\nshall not export or re-export any Evaluation Material without full compliance with all applicable export laws.\n22. If the parties proceed with the contemplated Transaction, the provisions of this letter agreement shall be superseded by the agreements\ngoverning the contemplated Transaction. In any event, the obligations of the parties and their Representatives set forth herein shall\nterminate three (3) years after the date hereof, provided that any provisions that survive such termination shall continue to survive,\nincluding the last sentence of paragraph 13 hereof.\n[Signature page follows]\nThis Agreement is being delivered to you in duplicate. Kindly execute and return one copy of this letter, which will constitute our Agreement\nwith respect to the subject matter of this letter.\nVery truly yours,\nLASERCARD CORPORATION\nBy: /s/ Robert T. DeVincenzi\nName: R. T. DeVincenzi\nTitle\nCEO\nConfirmed and Agreed to\nthis 6 day of November 2009\nHID GLOBAL CORPORATION\nBy:\n/s/ Timothy B. Moxon\nName:\nTim Moxon\nTitle\nDirector, M&A\nth EX-99.(D)(3) 9 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nNovember 6, 2009\nHID Global Corporation\n15370 Barranca Parkway\nIrvine, CA 92618\nAttention: Tim Moxon, Director, Mergers & Acquisitions\nDear HID Global Corporation:\nIn connection with your consideration of a possible transaction with LaserCard Corporation (the “Company”) (a “Transaction”), you have\nrequested the right to review certain non-public information of the Company. In consideration of, and as a condition to, furnishing you with such\ninformation and any other information (whether in oral or written form, electronically stored or otherwise) delivered to you or any of your affiliates\n(as defined in paragraph 5 hereof), directors, officers, employees, legal or financial advisors, agents, representatives or “controlling persons” (within\nthe meaning of the Securities Exchange Act of 1934, as amended (the “1934 Act”)) (such persons with respect to any person being herein referred to\ncollectively as that person’s “Representatives”) by us or our Representatives (such information, whether in written, oral, electronic or other form\nand whether prepared or made available to you before, on or after the date hereof, as well as any notes, analyses, compilations, studies, documents or\nother materials prepared by or on behalf of you or your Representatives which contain, are based on, derived from or otherwise reflect in whole or in\npart such information, in whatever form maintained or derived, collectively being referred to herein as “Evaluation Material”) in connection with\nyour consideration of the Transaction, as well as a condition to further discussions among the parties, the parties agree, as follows:\n1. You and your Representatives (i) will use the Evaluation Material solely for the purpose of evaluating the Transaction with the Company\nby you or your affiliates, and (ii) will keep the Evaluation Material strictly confidential and will not (except as required by applicable\nlaw, regulation, legal process, civil or regulatory investigative demand or other similar process, and in such case only in compliance with\nparagraph 3 below), without the Company’s prior written consent, disclose any of the Evaluation Material to any person, except that the\nEvaluation Material (or portions thereof) may be disclosed to those of your Representatives who need to know such information solely\nfor the purpose of evaluating the Transaction with the Company (provided that prior to such disclosure your Representatives will be\ninformed of the confidential nature of the Evaluation Material and shall agree to be bound by this letter agreement to the same extent as\nif they were parties thereto). You agree to be responsible for any breach of this letter agreement by your Representatives, and that the\nCompany shall be entitled to directly enforce such agreement against you (it being understood that such responsibility shall be in\naddition to and not by way of limitation of any right or remedy the Company may have against your Representatives with respect to such\nbreach). You shall secure and safeguard any and all information, documents, work in process, and work product that embodies\nEvaluation Material to reasonably restrict access and prevent unauthorized use and/or disclosure. You further agree that you will\nmaintain reasonable procedures to protect the secrecy of and prevent accidental or other loss or unauthorized use of any Evaluation\nMaterial. You shall reproduce the Company’s proprietary rights notices on any copies of Evaluation Material, in the same manner in\nwhich such notices were set forth in or on the original. You shall not reverse engineer, disassemble or decompile any prototypes,\nsoftware or other tangible objects that embody Evaluation Material.\nThe parties recognize and acknowledge the competitive value of the Transaction Information (as such term is defined in paragraph 4\nhereof) and Evaluation Material and the damage that could result to the Company if the Transaction Information or Evaluation Material\nwere used or disclosed except as authorized by this letter agreement. You understand that some Evaluation Material deemed\ncompetitively sensitive may be designated for review solely by your outside advisors or by those of your employees whose\nresponsibilities do not include contacting customers or potential customers or the determination of product pricing, and you agree to, and\nto cause your Representatives to, abide by such designation.\nThe term “Evaluation Material” does not include any information which (1) at the time of disclosure or thereafter is generally known by\nthe public (other than as a result of its disclosure by you or your Representatives), (ii) was or becomes available to you on a non-\nconfidential basis from a person not known by you (after reasonable inquiry) to be bound by a confidentiality agreement with the\nCompany or its Representatives or who is not known by you (after reasonable inquiry) to be prohibited from transmitting the information\nto you, (iii) is within your possession prior to it being furnished to you, provided that the person providing such information was not\nknown by you (after reasonable inquiry) to be bound by a confidentiality agreement or obligation with or to the Company or its\nRepresentatives or (iii) was independently developed by you or your Representatives without violation of any of your obligations under\nthis letter agreement and without any use of or reference to any Evaluation Material. As used in this letter agreement, the term “person”\nshall be broadly interpreted to include, without limitation, any corporation, company, partnership, limited liability company, group,\nassociation or other entity or individual, acting individually or together.\nIn the event that either party or its Representatives receives a request or is required to disclose any Transaction Information (as defined\nbelow) or you or your Representatives receive a request or are required to disclose all or any part of the information contained in the\nEvaluation Material pursuant to the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction or a\ngovernmental or regulatory body or pursuant to a civil investigative demand or similar process (including, without limitation, by oral\nquestions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil or regulatory investigative\ndemand or other similar process), the parties agree to (i) where lawful , promptly notify the counterparty of the existence, terms and\ncircumstances surrounding such a request, so that the party seeking to limit disclosure may seek an appropriate protective order, at the\nsole expense of the party seeking to limit disclosure, and/or waive compliance with the provisions of this letter agreement (and, if the\nparty seeking to limit disclosure seeks such an order, to provide such cooperation as the party seeking to limit disclosure shall reasonably\nrequest), (ii) if such protective order or remedy is not obtained or the party seeking to limit disclosure waives compliance with the\nprovisions of this letter agreement, and if disclosure of such information is required upon the advice of counsel, disclose only such\ninformation which the disclosing party is advised by its counsel is legally required to be disclosed and (iii) exercise commercially\nreasonable efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such information and\ncooperate fully with any efforts of the party seeking to limit disclosure to achieve the same, at the sole expense of the party seeking to\nlimit disclosure.\nUnless otherwise required by law in the opinion of counsel, neither party nor its Representatives will, without the counterparty’s prior\nwritten consent, disclose to any person the existence of this letter agreement or provide a copy of this letter agreement to any person,\ndisclose to any person the fact that the Company is considering a possible transaction between the parties, disclose to any person either\nthe fact that discussions or negotiations are taking place concerning a Transaction between the parties, or any of the terms, conditions or\nother facts with respect to any such Transaction, including, without limitation, the status thereof and the fact that the Evaluation Material\nhas been made available to you (the information referred to in this paragraph 4, the “Transaction Information™).\nYou agree that for a period of two years from the date of this letter agreement, neither you nor any of your affiliates will, directly or\nindirectly, solicit for purposes of employment as an employee or retention as’ a contractor, any of the officers or senior level employees,\nidentified in connection with your evaluation of the Transaction, of the Company or its affiliates, or otherwise solicit, induce or\notherwise encourage any officer or senior level employee of the Company or its affiliates to discontinue, cancel or refrain from entering\ninto any relationship (contractual or otherwise) with the Company or any affiliate of the Company, without the Company’s prior written\nconsent; provided,\nhowever, you shall not be prohibited from employing any such person who, without any direct or indirect solicitation by you, contacts\nyou on his or her own initiative, including without limitation as a result of any general solicitation for employment made to the public.\nGeneralized searches for employees in the ordinary course of business consistent with past practice through the use of advertisements in\nthe media (including the trade media) or Web site job postings shall not constitute solicitation for purposes of this Section. The\nengagement of a recruiting firm to the extent that such firm’s efforts are not specifically targeted at any officer or employee of the\nCompany shall also not constitute solicitation for purposes of this Section. For purposes of this letter agreement, “affiliate” means as to\nany person, any other person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such person or\nthat owns more than 50% of the voting stock of such person. The term “control” (including, with correlative meanings, the terms\n“controlled by” and “under common control with”), as applied to any person, means the possession, direct or indirect, of the power to\ndirect or cause the direction of the management and policies of such person, whether through the ownership of voting securities or other\nownership interest, by contract or otherwise.\nIt is understood that the Company or its Representatives may arrange for appropriate contacts for due diligence purposes and, other than\ncommunication with such contacts regarding due diligence matters, until the earlier of (i) the consummation of a transaction between the\nCompany and you, or (ii) two (2) years from the date of this letter agreement, you will not, and will cause your Representatives not to,\ninitiate or maintain contact with any officer, director, employee, agent, affiliate, supplier, distributor, broker or customer of the Company\nor any of its subsidiaries regarding the Company or any of its subsidiaries or their respective operations, assets, prospects or finances, or\nseek any information in connection with a possible Transaction from such person, except for communications in the ordinary course of\nthe parties’ business or with the express permission of the Company.\nYou hereby acknowledge that Evaluation Material is being furnished to you in consideration of your agreement, and you hereby agree,\nthat for a period of two (2) years from the date of this letter agreement, you and your Representatives shall not, directly or indirectly, and\nyou shall cause any person or entity controlled by you not to, without the prior written consent of the Company, directly or indirectly,\nalone or jointly or in concert with any other person (including by providing financing to any other person), whether publicly or otherwise\n(i) in any manner acquire, agree to acquire or make any proposal to acquire any securities or property of the Company or any of its\naffiliates, (ii) propose to enter into any merger, consolidation, recapitalization, business combination, partnership, joint venture or other\nsimilar transaction involving the Company or any of its affiliates, (iii) make, or in any way participate in any “solicitation” of “proxies”\n(as such terms are used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person\nwith respect to the voting of any voting securities of the Company or any of its affiliates, (iv) form, join or in any way participate in a\n“group” (within the meaning of Section 13(d)(3) of the 1934 Act) with respect to any of the foregoing or with respect to any voting\nsecurities of the Company or any of its affiliates, (v) otherwise act, alone or in concert with others, to seek to control or influence the\nmanagement, Board of Directors or policies of the Company, (vi) disclose any intention, plan or arrangement inconsistent with the\nforegoing, or (vii) advise, assist or encourage any other persons in connection with any of the foregoing. You also agree during such two-\nyear period not to (x) request the Company (or its Representatives), directly or indirectly, to amend or waive any provision of this\nparagraph 7 (including this sentence) or otherwise consent to any action inconsistent with any provision of this paragraph 7 (including\nthis sentence), (y) take any action (including, without limitation, any request or other communication to the Company or its\nRepresentatives regarding any amendment or waiver of any provision of this paragraph 7) which might require the Company or any of\nits affiliates to make a public announcement regarding this letter agreement, any of the matters referred to in this paragraph 7 or the\npossibility of a merger, consolidation, business combination or other similar transaction, including, without limitation, a Transaction, or\n(z) communicate with the Company’s shareholders regarding the subject matter of this letter agreement. Notwithstanding the foregoing,\nnothing shall prohibit you from submitting a proposal for a transaction to management and the Board of Directors of the Company. In\naddition, in the event that the Board of Directors of the Company shall approve any of the actions referred to in clause (ii) above, then\nnone of the prohibitions of this paragraph 7 shall apply to the matters described in the clause (ii) above with respect to you and such\napproved actions.\n10. 11. You acknowledge that you are aware, and that you will advise your Representatives who receive the Evaluation Material, that the United\nStates securities laws prohibit any person who has material, non-public information concerning the matters which are the subject of this\nletter agreement from purchasing or selling securities of the Company (and options, warrants and rights relating thereto) or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person\nincluding, without limitation, any of your Representatives, is likely to purchase or sell such securities; and you agree to fully comply\nwith such laws.\nTo the extent that Evaluation Material may include material subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree\nthat they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the\nsharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its\ncontinued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material\nprovided by the Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine.\nThis Agreement does not constitute or create any obligation of the Company to provide any Evaluation Material or other information to\nyou, but merely defines the duties and obligations of the parties herein. Under no circumstances is the Company obligated to disclose or\nmake available any information, including any Evaluation Material, which in its sole and absolute discretion determines not to disclose.\nNeither this letter agreement nor disclosure of any Evaluation Material to you shall be deemed by implication or otherwise to vest in you\nor your Representatives rights in or to the Evaluation Material, other than the right to use such Evaluation Material solely for the purpose\nof evaluating the Transaction. You understand and acknowledge that neither the Company nor any of its Representatives is making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material or any other information\nprovided to you by the Company or its Representatives. You understand and acknowledge that you may not rely on the accuracy or\ncompleteness of the Evaluation Material and that you may rely solely on those representations and warranties, if any, that are made to\nyou in a definitive agreement regarding the Transaction when, as and if it is executed, subject to such limitations and restrictions as may\nbe specified in such definitive agreement. Neither the Company nor any of its affiliates or Representatives, nor any of our respective\nofficers, directors, employees, agents or controlling persons (within the meaning of the 1934 Act) shall have any liability to you or any\nother person (including, without limitation, any of your Representatives) resulting from your receipt or use of the Evaluation Material,\nunless specified in a definitive agreement. You acknowledge that the Company and its Representatives shall be free to take such actions\nregarding any possible transaction and for the dissemination of Evaluation Material which they in their sole discretion shall determine\nincluding, without limitation, negotiating with any other party and entering into a definitive transaction agreement with any other party\nwithout prior notice to you or any other person or discontinuing discussions or negotiations with you or any other party at any time for\nany reason or for no reason. Negotiations or agreement by us with any third party will not relieve either party or its Representatives from\nits obligations hereunder.\nThe parties agree that unless and until a definitive agreement between the Company and you with respect to a Transaction has been\nexecuted and delivered, neither party will not be under any legal obligation of any kind whatsoever with respect to such Transaction or\nany other transaction by virtue of (i) this letter agreement or (ii) any written or oral expression with respect to such Transaction by either\nparty’s Representatives except, in the case of this letter agreement, for the matters specifically agreed to herein. For purposes of this\nletter agreement, the term “definitive agreement” does not include an executed letter of intent or any other preliminary written\nagreement, nor does it include any written or oral acceptance of any offer or bid by you.\n12. 13. 14. 15. 16. 17. You agree that the Company has not granted you any license, copyright, patent, trade secret or similar right with respect to any of the\nEvaluation Material or any other information provided to you by the Company or its Representatives.\nAt the request of the Company in its sole discretion and for any reason, or on your own initiative if you decide not to proceed with a\nTransaction (of which decision you will promptly notify the Company), you will promptly (and in any event no later than 10 business\ndays after the request therefor), at your sole discretion, (a) return to us all of the Evaluation Material, including all copies, reproductions,\nsummaries, analyses or extracts thereof or based thereon in your possession or in the possession of any of your Representatives or\n(b) destroy, unless such destruction is commercially unreasonable and/or in violation of your internal compliance obligations, all such\nEvaluation Material in your possession or in the possession of any of your Representatives (such destruction to be certified promptly in\nwriting to us by your authorized officer supervising such destruction). Notwithstanding any such return or destruction of the Evaluation\nMaterial, you and your Representatives will continue to be bound by your obligations of confidentiality and other obligations hereunder;\nprovided that to the extent any Evaluation Material is retained by you because its return or destruction would be commercially\nunreasonable and/or in violation of your internal compliance obligations, then the non-use and non-disclosure provisions of this letter\nagreement shall (notwithstanding paragraph 22 below) specifically survive for so long as such Evaluation Material is retained by you or\nyour Representatives.\nThe parties acknowledge that remedies at law may be inadequate to protect the parties against any actual or threatened breach of this\nletter agreement by the counterparty or by its Representatives and, without prejudice to the rights and remedies otherwise available to the\nallegedly harmed party, each party agrees that the allegedly harmed party shall be entitled to equitable relief (including specific\nperformance or injunction) in the allegedly harmed party’s favor without proof of actual damages. Any equitable relief shall not be\ndeemed to be the exclusive remedy for a breach of this letter agreement, but shall be in addition to all other remedies available at law or\nequity.\nThe validity and interpretation of this letter agreement shall be governed by, and construed and enforced in accordance with, the laws of\nthe State of Delaware applicable to agreements made and to be fully performed therein (excluding the conflicts of laws rules). You\nirrevocably and unconditionally (i) submit to the exclusive jurisdiction of the courts of the State of Delaware for the purpose of any suit,\naction, or other proceeding arising out of or relating to this letter agreement and the transactions contemplated thereby (each a\n“Proceeding”), (ii) agree that all claims in respect of any Proceeding shall be heard and determined exclusively in any such court, and\n(iii) waive, to the fullest extent permitted by law, any immunity you have acquired, or hereafter may acquire, from jurisdiction of any\nsuch court or from any legal process therein, and (iv) agree not to commence any Proceeding other than in such court, and waive, to the\nfullest extent permitted by applicable law, any claim that any such Proceeding brought in any such court has been brought in an\ninconvenient forum.\nIf it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) that any term or provision hereof is\ninvalid or unenforceable, (i) the remaining terms and provision hereof shall be unimpaired and shall remain in full force and effect and\n(ii) the invalid or unenforceable provision or term shall be replaced by a term or provision that is valid and enforceable and that comes\nclosest to expressing the intention of such invalid or unenforceable term or provision.\nThis Agreement embodies the entire agreement and understanding of the parties hereto and supersedes any and all prior agreements,\narrangements and understandings relating to the matters provided for herein. No alteration, waiver, amendment, change or supplement\nhereto shall be binding or effective unless the same is set forth in writing signed by a duly authorized representative of each party and the\nsame may be modified or waived only by a separate letter executed by the Company and you expressly so modifying or waiving such\nagreement.\n18. 19. 20. 21. 22. This Agreement may be executed and delivered either originally, by facsimile of the signature page or by e-mail of a scanned copy of the\nsignature page in Adobe Acrobat PDF format, and in one or more counterparts, all of which taken together shall constitute one and the\nsame instrument.\nThis Agreement will be binding upon the parties and its Representatives and its respective heirs, successors and assigns, and will inure to\nthe benefit of the counterparty and its Representatives and their respective heirs, successors and assigns. Neither party may assign any of\nits rights or obligations hereunder; provided, that, the Company reserves the right to assign its rights, powers and privileges under this\nletter agreement (including, without limitation, the right to enforce the terms of this letter agreement) to any person who enters into a\ntransaction to acquire control of the Company or substantially all of its assets.\nEach party shall be responsible for its own costs and expenses incurred in connection with your evaluation of the Transaction.\nYou acknowledge that the Evaluation Material you receive may include technical data developed in the United States, and therefore, you\nshall not export or re-export any Evaluation Material without full compliance with all applicable export laws.\nIf the parties proceed with the contemplated Transaction, the provisions of this letter agreement shall be superseded by the agreements\ngoverning the contemplated Transaction. In any event, the obligations of the parties and their Representatives set forth herein shall\nterminate three (3) years after the date hereof, provided that any provisions that survive such termination shall continue to survive,\nincluding the last sentence of paragraph 13 hereof.\n[Signature page follows]\nThis Agreement is being delivered to you in duplicate. Kindly execute and return one copy of this letter, which will constitute our Agreement with respect to the subject matter of this letter. Confirmed and Agreed to\nthis 6t day of November 2009\nHID GLOBAL CORPORATION\nBy: /s/ Timothy B. Moxon\nName: Tim Moxon\nTitle Director, M&A\nVery truly yours,\nLASERCARD CORPORATION\nBy: /s/ Robert T. DeVincenzi\nName: R.T. DeVincenzi\nTitle CEO EX-99.(D)(3) 9 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nNovember 6, 2009\nHID Global Corporation\n15370 Barranca Parkway\nIrvine, CA 92618\nAttention: Tim Moxon, Director, Mergers & Acquisitions\nDear HID Global Corporation:\nIn connection with your consideration of a possible transaction with LaserCard Corporation (the "Company") (a "Transaction"), you have\nrequested the right to review certain non-public information of the Company. In consideration of, and as a condition to, furnishing you with such\ninformation and any other information (whether in oral or written form, electronically stored or otherwise) delivered to you or any of your affiliates\n(as defined in paragraph 5 hereof), directors, officers, employees, legal or financial advisors, agents, representatives or "controlling persons" (within\nthe meaning of the Securities Exchange Act of 1934, as amended (the "1934 Act")) (such persons with respect to any person being herein referred\nto\ncollectively as that person's "Representatives") by us or our Representatives (such information, whether in written, oral, electronic or other form\nand whether prepared or made available to you before, on or after the date hereof, as well as any notes, analyses, compilations, studies, documents or\nother materials prepared by or on behalf of you or your Representatives which contain, are based on, derived from or otherwise reflect in whole or in\npart such information, in whatever form maintained or derived, collectively being referred to herein as "Evaluation Material") in connection with\nyour consideration of the Transaction, as well as a condition to further discussions among the parties, the parties agree, as follows:\n1.\nYou and your Representatives (i) will use the Evaluation Material solely for the purpose of evaluating the Transaction with the Company\nby you or your affiliates, and (ii) will keep the Evaluation Material strictly confidential and will not (except as required by applicable\nlaw,\nregulation,\nlegal\nprocess,\ncivil\nor\nregulatory\ninvestigative\ndemand\nor\nother\nsimilar\nprocess,\nand\nin\nsuch\ncase\nonly\nin\ncompliance\nwith\nparagraph 3 below), without the Company's prior written consent, disclose any of the Evaluation Material to any person, except that the\nEvaluation Material (or portions thereof) may be disclosed to those of your Representatives who need to know such information solely\nfor the purpose of evaluating the Transaction with the Company (provided that prior to such disclosure your Representatives will be\ninformed of the confidential nature of the Evaluation Material and shall agree to be bound by this letter agreement to the same extent as\nif they were parties thereto). You agree to be responsible for any breach of this letter agreement by your Representatives, and that the\nCompany shall be entitled to directly enforce such agreement against you (it being understood that such responsibility shall be in\naddition to and not by way of limitation of any right or remedy the Company may have against your Representatives with respect to such\nbreach). You shall secure and safeguard any and all information, documents, work in process, and work product that embodies\nEvaluation Material to reasonably restrict access and prevent unauthorized use and/or disclosure. You further agree that you will\nmaintain reasonable procedures to protect the secrecy of and prevent accidental or other loss or unauthorized use of any Evaluation\nMaterial. You shall reproduce the Company's proprietary rights notices on any copies of Evaluation Material, in the same manner\nin\nwhich such notices were set forth in or on the original. You shall not reverse engineer, disassemble or decompile any prototypes,\nsoftware or other tangible objects that embody Evaluation Material.\nThe parties recognize and acknowledge the competitive value of the Transaction Information (as such term is defined in paragraph 4\nhereof) and Evaluation Material and the damage that could result to the Company if the Transaction Information or Evaluation Material\nwere used or disclosed except as authorized by this letter agreement. You understand that some Evaluation Material deemed\ncompetitively sensitive may be designated for review solely by your outside advisors or by those of your employees whose\nresponsibilities do not include contacting customers or potential customers or the determination of product pricing, and you agree to, and\nto cause your Representatives to, abide by such designation.\n2.\nThe term "Evaluation Material" does not include any information which (1) at the time of disclosure or thereafter is generally known by\nthe public (other than as a result of its disclosure by you or your Representatives), (ii) was or becomes available to you on a non-\nconfidential basis from a person not known by you (after reasonable inquiry) to be bound by a confidentiality agreement with the\nCompany or its Representatives or who is not known by you (after reasonable inquiry) to be prohibited from transmitting the information\nto you, (iii) is within your possession prior to it being furnished to you, provided that the person providing such information was not\nknown by you (after reasonable inquiry) to be bound by a confidentiality agreement or obligation with or to the Company or its\nRepresentatives or (iii) was independently developed by you or your Representatives without violation of any of your obligations under\nthis letter agreement and without any use of or reference to any Evaluation Material. As used in this letter agreement, the term "person"\nshall be broadly interpreted to include, without limitation, any corporation, company, partnership, limited liability company, group,\nassociation or other entity or individual, acting individually or together.\n3.\nIn the event that either party or its Representatives receives a request or is required to disclose any Transaction Information (as defined\nbelow) or you or your Representatives receive a request or are required to disclose all or any part of the information contained in the\nEvaluation Material pursuant to the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction or a\ngovernmental or regulatory body or pursuant to a civil investigative demand or similar process (including, without limitation, by oral\nquestions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil or regulatory investigative\ndemand or other similar process), the parties agree to (i) where lawful promptly notify the counterparty of the existence, terms and\ncircumstances surrounding such a request, so that the party seeking to limit disclosure may seek an appropriate protective order, at the\nsole expense of the party seeking to limit disclosure, and/or waive compliance with the provisions of this letter agreement (and, if the\nparty seeking to limit disclosure seeks such an order, to provide such cooperation as the party seeking to limit disclosure shall reasonably\nrequest), (ii) if such protective order or remedy is not obtained or the party seeking to limit disclosure waives compliance with the\nprovisions of this letter agreement, and if disclosure of such information is required upon the advice of counsel, disclose only such\ninformation which the disclosing party is advised by its counsel is legally required to be disclosed and (iii) exercise commercially\nreasonable efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such information and\ncooperate fully with any efforts of the party seeking to limit disclosure to achieve the same, at the sole expense of the party seeking to\nlimit disclosure.\n4.\nUnless otherwise required by law in the opinion of counsel, neither party nor its Representatives will, without the counterparty's prior\nwritten consent, disclose to any person the existence of this letter agreement or provide a copy of this letter agreement to any person,\ndisclose to any person the fact that the Company is considering a possible transaction between the parties, disclose to any person either\nthe fact that discussions or negotiations are taking place concerning a Transaction between the parties, or any of the terms, conditions or\nother facts with respect to any such Transaction, including, without limitation, the status thereof and the fact that the Evaluation Material\nhas been made available to you (the information referred to in this paragraph 4, the "Transaction Information").\n5.\nYou agree that for a period of two years from the date of this letter agreement, neither you nor any of your affiliates will, directly or\nindirectly, solicit for purposes of employment as an employee or retention as' a contractor, any of the officers or senior level employees,\nidentified in connection with your evaluation of the Transaction, of the Company or its affiliates, or otherwise solicit, induce or\notherwise encourage any officer or senior level employee of the Company or its affiliates to discontinue, cancel or refrain from entering\ninto any relationship (contractual or otherwise) with the Company or any affiliate of the Company, without the Company's prior written\nconsent; provided,\nhowever, you shall not be prohibited from employing any such person who, without any direct or indirect solicitation by you, contacts\nyou on his or her own initiative, including without limitation as a result of any general solicitation for employment made to the public.\nGeneralized searches for employees in the ordinary course of business consistent with past practice through the use of advertisements in\nthe media (including the trade media) or Web site job postings shall not constitute solicitation for purposes of this Section. The\nengagement of a recruiting firm to the extent that such firm's efforts are not specifically targeted at any officer or employee of the\nCompany shall also not constitute solicitation for purposes of this Section. For purposes of this letter agreement, "affiliate" means as to\nany person, any other person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such person or\nthat owns more than 50% of the voting stock of such person. The term "control" (including, with correlative meanings, the terms\n"controlled by" and "under common control with"), as applied to any person, means the possession, direct or indirect, of the power to\ndirect or cause the direction of the management and policies of such person, whether through the ownership of voting securities or other\nownership interest, by contract or otherwise.\n6.\nIt is understood that the Company or its Representatives may arrange for appropriate contacts for due diligence purposes and, other than\ncommunication with such contacts regarding due diligence matters, until the earlier of (i) the consummation of a transaction between the\nCompany and you, or (ii) two (2) years from the date of this letter agreement, you will not, and will cause your Representatives not to,\ninitiate or maintain contact with any officer, director, employee, agent, affiliate, supplier, distributor, broker or customer of the Company\nor any of its subsidiaries regarding the Company or any of its subsidiaries or their respective operations, assets, prospects or finances, or\nseek any information in connection with a possible Transaction from such person, except for communications in the ordinary course of\nthe parties' business or with the express permission of the Company.\n7.\nYou hereby acknowledge that Evaluation Material is being furnished to you in consideration of your agreement, and you hereby agree,\nthat for a period of two (2) years from the date of this letter agreement, you and your Representatives shall not, directly or indirectly, and\nyou shall cause any person or entity controlled by you not to, without the prior written consent of the Company, directly or indirectly,\nalone or jointly or in concert with any other person (including by providing financing to any other person), whether publicly or otherwise\n(i) in any manner acquire, agree to acquire or make any proposal to acquire any securities or property of the Company or any of its\naffiliates, (ii) propose to enter into any merger, consolidation, recapitalization, business combination, partnership, joint venture or other\nsimilar transaction involving the Company or any of its affiliates, (iii) make, or in any way participate in any "solicitation" of "proxies"\n(as such terms are used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person\nwith respect to the voting of any voting securities of the Company or any of its affiliates, (iv) form, join or in any way participate in a\n"group" (within the meaning of Section 13(d)(3) of the 1934 Act) with respect to any of the foregoing or with respect to any voting\nsecurities of the Company or any of its affiliates, (v) otherwise act, alone or in concert with others, to seek to control or influence the\nmanagement, Board of Directors or policies of the Company, (vi) disclose any intention, plan or arrangement inconsistent with the\nforegoing, or (vii) advise, assist or encourage any other persons in connection with any of the foregoing. You also agree during such two-\nyear period not to (x) request the Company (or its Representatives), directly or indirectly, to amend or waive any provision of this\nparagraph 7 (including this sentence) or otherwise consent to any action inconsistent with any provision of this paragraph 7 (including\nthis sentence), (y) take any action (including, without limitation, any request or other communication to the Company or its\nRepresentatives regarding any amendment or waiver of any provision of this paragraph 7) which might require the Company or any of\nits\naffiliates to make a public announcement regarding this letter agreement, any of the matters referred to in this paragraph 7 or the\npossibility of a merger, consolidation, business combination or other similar transaction, including, without limitation, a Transaction, or\n(z) communicate with the Company's shareholders regarding the subject matter of this letter agreement. Notwithstanding the foregoing,\nnothing shall prohibit you from submitting a proposal for a transaction to management and the Board of Directors of the Company. In\naddition, in the event that the Board of Directors of the Company shall approve any of the actions referred to in clause (ii) above, then\nnone of the prohibitions of this paragraph 7 shall apply to the matters described in the clause (ii) above with respect to you and such\napproved actions.\n8.\nYou acknowledge that you are aware, and that you will advise your Representatives who receive the Evaluation Material, that the United\nStates securities laws prohibit any person who has material, non-public information concerning the matters which are the subject of this\nletter agreement from purchasing or selling securities of the Company (and options, warrants and rights relating thereto) or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person\nincluding, without limitation, any of your Representatives, is likely to purchase or sell such securities; and you agree to fully comply\nwith such laws.\n9.\nTo the extent that Evaluation Material may include material subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmenta investigations, the parties understand and\nagree\nthat they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the\nsharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its\ncontinued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material\nprovided by the Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine.\n10. This Agreement does not constitute or create any obligation of the Company to provide any Evaluation Material or other information to\nyou, but merely defines the duties and obligations of the parties herein. Under no circumstances is the Company obligated to disclose or\nmake available any information, including any Evaluation Material, which in its sole and absolute discretion determines not to disclose.\nNeither this letter agreement nor disclosure of any Evaluation Material to you shall be deemed by implication or otherwise to vest in you\nor your Representatives rights in or to the Evaluation Material, other than the right to use such Evaluation Material solely for the purpose\nof evaluating the Transaction. You understand and acknowledge that neither the Company nor any of its Representatives is making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material or any other information\nprovided to you by the Company or its Representatives. You understand and acknowledge that you may not rely on the accuracy or\ncompleteness\nof\nthe\nEvaluation\nMaterial\nand\nthat\nyou\nmay\nrely\nsolely\non\nthose\nrepresentations\nand\nwarranties,\nif\nany,\nthat\nare\nmade\nto\nyou in a definitive agreement regarding the Transaction when, as and if it is executed, subject to such limitations and restrictions as may\nbe specified in such definitive agreement. Neither the Company nor any of its affiliates or Representatives, nor any of our respective\nofficers, directors, employees, agents or controlling persons (within the meaning of the 1934 Act) shall have any liability to you or any\nother person (including, without limitation, any of your Representatives) resulting from your receipt or use of the Evaluation Material,\nunless specified in a definitive agreement. You acknowledge that the Company and its Representatives shall be free to take such actions\nregarding any possible transaction and for the dissemination of Evaluation Material which they in their sole discretion shall determine\nincluding, without limitation, negotiating with any other party and entering into a definitive transaction agreement with any other party\nwithout prior notice to you or any other person or discontinuing discussions or negotiations with you or any other party at any time for\nany reason or for no reason. Negotiations or agreement by us with any third party will not relieve either party or its Representatives from\nits obligations hereunder.\n11. The parties agree that unless and until a definitive agreement between the Company and you with respect to a Transaction has been\nexecuted and delivered, neither party will not be under any legal obligation of any kind whatsoever with respect to such Transaction or\nany other transaction by virtue of (i) this letter agreement or (ii) any written or oral expression with respect to such Transaction by either\nparty's Representatives except, in the case of this letter agreement, for the matters specifically agreed to herein. For purposes of this\nletter agreement, the term "definitive agreement" does not include an executed letter of intent or any other preliminary written\nagreement, nor does it include any written or oral acceptance of any offer or bid by you.\n12. You agree that the Company has not granted you any license, copyright, patent, trade secret or similar right with respect to any of the\nEvaluation Material or any other information provided to you by the Company or its Representatives.\n13.\nAt the request of the Company in its sole discretion and for any reason, or on your own initiative if you decide not to proceed with a\nTransaction (of which decision you will promptly notify the Company), you will promptly (and in any event no later than 10 business\ndays after the request therefor), at your sole discretion, (a) return to us all of the Evaluation Material, including all copies, reproductions,\nsummaries, analyses or extracts thereof or based thereon in your possession or in the possession of any of your Representatives or\n(b) destroy, unless such destruction is commercially unreasonable and/or in violation of your internal compliance obligations, all such\nEvaluation Material in your possession or in the possession of any of your Representatives (such destruction to be certified promptly in\nwriting to us by your authorized officer supervising such destruction). Notwithstanding any such return or destruction of the Evaluation\nMaterial, you and your Representatives will continue to be bound by your obligations of confidentiality and other obligations hereunder;\nprovided that to the extent any Evaluation Material is retained by you because its return or destruction would be commercially\nunreasonable and/or in violation of your internal compliance obligations, then the non-use and non-disclosure provisions of this letter\nagreement shall (notwithstanding paragraph 22 below) specifically survive for so long as such Evaluation Material is retained by you or\nyour Representatives.\n14. The parties acknowledge that remedies at law may be inadequate to protect the parties against any actual or threatened breach of this\nletter agreement by the counterparty or by its Representatives and, without prejudice to the rights and remedies otherwise available\nto\nthe\nallegedly harmed party, each party agrees that the allegedly harmed party shall be entitled to equitable relief (including specific\nperformance or injunction) in the allegedly harmed party's favor without proof of actual damages. Any equitable relief shall not be\ndeemed to be the exclusive remedy for a breach of this letter agreement, but shall be in addition to all other remedies available at law\nor\nequity.\n15. The validity and interpretation of this letter agreement shall be governed by, and construed and enforced in accordance with, the laws of\nthe State of Delaware applicable to agreements made and to be fully performed therein (excluding the conflicts of laws rules). You\nirrevocably and unconditionally (i) submit to the exclusive jurisdiction of the courts of the State of Delaware for the purpose of any suit,\naction, or other proceeding arising out of or relating to this letter agreement and the transactions contemplated thereby (each a\n"Proceeding") (ii) agree that all claims in respect of any Proceeding shall be heard and determined exclusively in any such court, and\n(iii) waive, to the fullest extent permitted by law, any immunity you have acquired, or hereafter may acquire, from jurisdiction of any\nsuch court or from any legal process therein, and (iv) agree not to commence any Proceeding other than in such court, and waive, to the\nfullest extent permitted by applicable law, any claim that any such Proceeding brought in any such court has been brought in an\ninconvenient forum.\n16. If it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) that any term or provision hereof is\ninvalid or unenforceable, (i) the remaining terms and provision hereof shall be unimpaired and shall remain in full force and effect and\n(ii) the invalid or unenforceable provision or term shall be replaced by a term or provision that is valid and enforceable and that comes\nclosest to expressing the intention of such invalid or unenforceable term or provision.\n17.\nThis Agreement embodies the entire agreement and understanding of the parties hereto and supersedes any and all prior agreements,\narrangements and understandings relating to the matters provided for herein. No alteration, waiver, amendment, change or supplement\nhereto shall be binding or effective unless the same is set forth in writing signed by a duly authorized representative of each party and\nthe\nsame may be modified or waived only by a separate letter executed by the Company and you expressly so modifying or waiving such\nagreement.\n18.\nThis Agreement may be executed and delivered either originally, by facsimile of the signature page or by e-mail of a scanned copy of the\nsignature page in Adobe Acrobat PDF format, and in one or more counterparts, all of which taken together shall constitute one and the\nsame instrument.\n19.\nThis Agreement will be binding upon the parties and its Representatives and its respective heirs, successors and assigns, and will inure to\nthe benefit of the counterparty and its Representatives and their respective heirs, successors and assigns. Neither party may assign any of\nits rights or obligations hereunder; provided, that, the Company reserves the right to assign its rights, powers and privileges under this\nletter agreement (including, without limitation, the right to enforce the terms of this letter agreement) to any person who enters into a\ntransaction to acquire control of the Company or substantially all of its assets.\n20. Each party shall be responsible for its own costs and expenses incurred in connection with your evaluation of the Transaction.\n21. You acknowledge that the Evaluation Material you receive may include technical data developed in the United States, and therefore, you\nshall not export or re-export any Evaluation Material without full compliance with all applicable export laws.\n22. If the parties proceed with the contemplated Transaction, the provisions of this letter agreement shall be superseded by the agreements\ngoverning the contemplated Transaction. In any event, the obligations of the parties and their Representatives set forth herein shall\nterminate three (3) years after the date hereof, provided that any provisions that survive such termination shall continue to survive,\nincluding the last sentence of paragraph 13 hereof.\n[Signature page follows]\nThis Agreement is being delivered to you in duplicate. Kindly execute and return one copy of this letter, which will constitute our Agreement\nwith respect to the subject matter of this letter.\nVery truly yours,\nLASERCARD CORPORATION\nBy: /s/ Robert T. eVincenzi\nName:\nR. T. DeVincenzi\nTitle\nCEO\nConfirmed and Agreed to\nthis 6th day of November 2009\nHID GLOBAL CORPORATION\nBy:\n/s/ Timothy B. Moxon\nName:\nTim Moxon\nTitle\nDirector, M&A EX-99.(D)(3) 9 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nNovember 6, 2009\nHID Global Corporation\n15370 Barranca Parkway\nIrvine, CA 92618\nAttention: Tim Moxon, Director, Mergers & Acquisitions\nDear HID Global Corporation:\nIn connection with your consideration of a possible transaction with LaserCard Corporation (the “Company”) (a “Transaction”), you have\nrequested the right to review certain non-public information of the Company. In consideration of, and as a condition to, furnishing you with such\ninformation and any other information (whether in oral or written form, electronically stored or otherwise) delivered to you or any of your affiliates\n(as defined in paragraph 5 hereof), directors, officers, employees, legal or financial advisors, agents, representatives or “controlling persons” (within\nthe meaning of the Securities Exchange Act of 1934, as amended (the “1934 Act”)) (such persons with respect to any person being herein referred to\ncollectively as that person’s “Representatives”) by us or our Representatives (such information, whether in written, oral, electronic or other form\nand whether prepared or made available to you before, on or after the date hereof, as well as any notes, analyses, compilations, studies, documents or\nother materials prepared by or on behalf of you or your Representatives which contain, are based on, derived from or otherwise reflect in whole or in\npart such information, in whatever form maintained or derived, collectively being referred to herein as “Evaluation Material”) in connection with\nyour consideration of the Transaction, as well as a condition to further discussions among the parties, the parties agree, as follows:\n1. You and your Representatives (i) will use the Evaluation Material solely for the purpose of evaluating the Transaction with the Company\nby you or your affiliates, and (ii) will keep the Evaluation Material strictly confidential and will not (except as required by applicable\nlaw, regulation, legal process, civil or regulatory investigative demand or other similar process, and in such case only in compliance with\nparagraph 3 below), without the Company’s prior written consent, disclose any of the Evaluation Material to any person, except that the\nEvaluation Material (or portions thereof) may be disclosed to those of your Representatives who need to know such information solely\nfor the purpose of evaluating the Transaction with the Company (provided that prior to such disclosure your Representatives will be\ninformed of the confidential nature of the Evaluation Material and shall agree to be bound by this letter agreement to the same extent as\nif they were parties thereto). You agree to be responsible for any breach of this letter agreement by your Representatives, and that the\nCompany shall be entitled to directly enforce such agreement against you (it being understood that such responsibility shall be in\naddition to and not by way of limitation of any right or remedy the Company may have against your Representatives with respect to such\nbreach). You shall secure and safeguard any and all information, documents, work in process, and work product that embodies\nEvaluation Material to reasonably restrict access and prevent unauthorized use and/or disclosure. You further agree that you will\nmaintain reasonable procedures to protect the secrecy of and prevent accidental or other loss or unauthorized use of any Evaluation\nMaterial. You shall reproduce the Company’s proprietary rights notices on any copies of Evaluation Material, in the same manner in\nwhich such notices were set forth in or on the original. You shall not reverse engineer, disassemble or decompile any prototypes,\nsoftware or other tangible objects that embody Evaluation Material.\nThe parties recognize and acknowledge the competitive value of the Transaction Information (as such term is defined in paragraph 4\nhereof) and Evaluation Material and the damage that could result to the Company if the Transaction Information or Evaluation Material\nwere used or disclosed except as authorized by this letter agreement. You understand that some Evaluation Material deemed\ncompetitively sensitive may be designated for review solely by your outside advisors or by those of your employees whose\nresponsibilities do not include contacting customers or potential customers or the determination of product pricing, and you agree to, and\nto cause your Representatives to, abide by such designation.\n2. The term “Evaluation Material” does not include any information which (1) at the time of disclosure or thereafter is generally known by\nthe public (other than as a result of its disclosure by you or your Representatives), (ii) was or becomes available to you on a non-\nconfidential basis from a person not known by you (after reasonable inquiry) to be bound by a confidentiality agreement with the\nCompany or its Representatives or who is not known by you (after reasonable inquiry) to be prohibited from transmitting the information\nto you, (iii) is within your possession prior to it being furnished to you, provided that the person providing such information was not\nknown by you (after reasonable inquiry) to be bound by a confidentiality agreement or obligation with or to the Company or its\nRepresentatives or (iii) was independently developed by you or your Representatives without violation of any of your obligations under\nthis letter agreement and without any use of or reference to any Evaluation Material. As used in this letter agreement, the term “person”\nshall be broadly interpreted to include, without limitation, any corporation, company, partnership, limited liability company, group,\nassociation or other entity or individual, acting individually or together.\n3. In the event that either party or its Representatives receives a request or is required to disclose any Transaction Information (as defined\nbelow) or you or your Representatives receive a request or are required to disclose all or any part of the information contained in the\nEvaluation Material pursuant to the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction or a\ngovernmental or regulatory body or pursuant to a civil investigative demand or similar process (including, without limitation, by oral\nquestions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil or regulatory investigative\ndemand or other similar process), the parties agree to (i) where lawful , promptly notify the counterparty of the existence, terms and\ncircumstances surrounding such a request, so that the party seeking to limit disclosure may seek an appropriate protective order, at the\nsole expense of the party seeking to limit disclosure, and/or waive compliance with the provisions of this letter agreement (and, if the\nparty seeking to limit disclosure seeks such an order, to provide such cooperation as the party seeking to limit disclosure shall reasonably\nrequest), (ii) if such protective order or remedy is not obtained or the party seeking to limit disclosure waives compliance with the\nprovisions of this letter agreement, and if disclosure of such information is required upon the advice of counsel, disclose only such\ninformation which the disclosing party is advised by its counsel is legally required to be disclosed and (iii) exercise commercially\nreasonable efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such information and\ncooperate fully with any efforts of the party seeking to limit disclosure to achieve the same, at the sole expense of the party seeking to\nlimit disclosure.\n4. Unless otherwise required by law in the opinion of counsel, neither party nor its Representatives will, without the counterparty’s prior\nwritten consent, disclose to any person the existence of this letter agreement or provide a copy of this letter agreement to any person,\ndisclose to any person the fact that the Company is considering a possible transaction between the parties, disclose to any person either\nthe fact that discussions or negotiations are taking place concerning a Transaction between the parties, or any of the terms, conditions or\nother facts with respect to any such Transaction, including, without limitation, the status thereof and the fact that the Evaluation Material\nhas been made available to you (the information referred to in this paragraph 4, the “Transaction Information”).\n5. You agree that for a period of two years from the date of this letter agreement, neither you nor any of your affiliates will, directly or\nindirectly, solicit for purposes of employment as an employee or retention as’ a contractor, any of the officers or senior level employees,\nidentified in connection with your evaluation of the Transaction, of the Company or its affiliates, or otherwise solicit, induce or\notherwise encourage any officer or senior level employee of the Company or its affiliates to discontinue, cancel or refrain from entering\ninto any relationship (contractual or otherwise) with the Company or any affiliate of the Company, without the Company’s prior written\nconsent; provided,\nhowever, you shall not be prohibited from employing any such person who, without any direct or indirect solicitation by you, contacts\nyou on his or her own initiative, including without limitation as a result of any general solicitation for employment made to the public.\nGeneralized searches for employees in the ordinary course of business consistent with past practice through the use of advertisements in\nthe media (including the trade media) or Web site job postings shall not constitute solicitation for purposes of this Section. The\nengagement of a recruiting firm to the extent that such firm’s efforts are not specifically targeted at any officer or employee of the\nCompany shall also not constitute solicitation for purposes of this Section. For purposes of this letter agreement, “affiliate” means as to\nany person, any other person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such person or\nthat owns more than 50% of the voting stock of such person. The term “control” (including, with correlative meanings, the terms\n“controlled by” and “under common control with”), as applied to any person, means the possession, direct or indirect, of the power to\ndirect or cause the direction of the management and policies of such person, whether through the ownership of voting securities or other\nownership interest, by contract or otherwise.\n6. It is understood that the Company or its Representatives may arrange for appropriate contacts for due diligence purposes and, other than\ncommunication with such contacts regarding due diligence matters, until the earlier of (i) the consummation of a transaction between the\nCompany and you, or (ii) two (2) years from the date of this letter agreement, you will not, and will cause your Representatives not to,\ninitiate or maintain contact with any officer, director, employee, agent, affiliate, supplier, distributor, broker or customer of the Company\nor any of its subsidiaries regarding the Company or any of its subsidiaries or their respective operations, assets, prospects or finances, or\nseek any information in connection with a possible Transaction from such person, except for communications in the ordinary course of\nthe parties’ business or with the express permission of the Company.\n7. You hereby acknowledge that Evaluation Material is being furnished to you in consideration of your agreement, and you hereby agree,\nthat for a period of two (2) years from the date of this letter agreement, you and your Representatives shall not, directly or indirectly, and\nyou shall cause any person or entity controlled by you not to, without the prior written consent of the Company, directly or indirectly,\nalone or jointly or in concert with any other person (including by providing financing to any other person), whether publicly or otherwise\n(i) in any manner acquire, agree to acquire or make any proposal to acquire any securities or property of the Company or any of its\naffiliates, (ii) propose to enter into any merger, consolidation, recapitalization, business combination, partnership, joint venture or other\nsimilar transaction involving the Company or any of its affiliates, (iii) make, or in any way participate in any “solicitation” of “proxies”\n(as such terms are used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person\nwith respect to the voting of any voting securities of the Company or any of its affiliates, (iv) form, join or in any way participate in a\n“group” (within the meaning of Section 13(d)(3) of the 1934 Act) with respect to any of the foregoing or with respect to any voting\nsecurities of the Company or any of its affiliates, (v) otherwise act, alone or in concert with others, to seek to control or influence the\nmanagement, Board of Directors or policies of the Company, (vi) disclose any intention, plan or arrangement inconsistent with the\nforegoing, or (vii) advise, assist or encourage any other persons in connection with any of the foregoing. You also agree during such two-\nyear period not to (x) request the Company (or its Representatives), directly or indirectly, to amend or waive any provision of this\nparagraph 7 (including this sentence) or otherwise consent to any action inconsistent with any provision of this paragraph 7 (including\nthis sentence), (y) take any action (including, without limitation, any request or other communication to the Company or its\nRepresentatives regarding any amendment or waiver of any provision of this paragraph 7) which might require the Company or any of\nits affiliates to make a public announcement regarding this letter agreement, any of the matters referred to in this paragraph 7 or the\npossibility of a merger, consolidation, business combination or other similar transaction, including, without limitation, a Transaction, or\n(z) communicate with the Company’s shareholders regarding the subject matter of this letter agreement. Notwithstanding the foregoing,\nnothing shall prohibit you from submitting a proposal for a transaction to management and the Board of Directors of the Company. In\naddition, in the event that the Board of Directors of the Company shall approve any of the actions referred to in clause (ii) above, then\nnone of the prohibitions of this paragraph 7 shall apply to the matters described in the clause (ii) above with respect to you and such\napproved actions.\n8. You acknowledge that you are aware, and that you will advise your Representatives who receive the Evaluation Material, that the United\nStates securities laws prohibit any person who has material, non-public information concerning the matters which are the subject of this\nletter agreement from purchasing or selling securities of the Company (and options, warrants and rights relating thereto) or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person\nincluding, without limitation, any of your Representatives, is likely to purchase or sell such securities; and you agree to fully comply\nwith such laws.\n9. To the extent that Evaluation Material may include material subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree\nthat they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the\nsharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its\ncontinued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material\nprovided by the Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine.\n10. This Agreement does not constitute or create any obligation of the Company to provide any Evaluation Material or other information to\nyou, but merely defines the duties and obligations of the parties herein. Under no circumstances is the Company obligated to disclose or\nmake available any information, including any Evaluation Material, which in its sole and absolute discretion determines not to disclose.\nNeither this letter agreement nor disclosure of any Evaluation Material to you shall be deemed by implication or otherwise to vest in you\nor your Representatives rights in or to the Evaluation Material, other than the right to use such Evaluation Material solely for the purpose\nof evaluating the Transaction. You understand and acknowledge that neither the Company nor any of its Representatives is making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material or any other information\nprovided to you by the Company or its Representatives. You understand and acknowledge that you may not rely on the accuracy or\ncompleteness of the Evaluation Material and that you may rely solely on those representations and warranties, if any, that are made to\nyou in a definitive agreement regarding the Transaction when, as and if it is executed, subject to such limitations and restrictions as may\nbe specified in such definitive agreement. Neither the Company nor any of its affiliates or Representatives, nor any of our respective\nofficers, directors, employees, agents or controlling persons (within the meaning of the 1934 Act) shall have any liability to you or any\nother person (including, without limitation, any of your Representatives) resulting from your receipt or use of the Evaluation Material,\nunless specified in a definitive agreement. You acknowledge that the Company and its Representatives shall be free to take such actions\nregarding any possible transaction and for the dissemination of Evaluation Material which they in their sole discretion shall determine\nincluding, without limitation, negotiating with any other party and entering into a definitive transaction agreement with any other party\nwithout prior notice to you or any other person or discontinuing discussions or negotiations with you or any other party at any time for\nany reason or for no reason. Negotiations or agreement by us with any third party will not relieve either party or its Representatives from\nits obligations hereunder.\n11. The parties agree that unless and until a definitive agreement between the Company and you with respect to a Transaction has been\nexecuted and delivered, neither party will not be under any legal obligation of any kind whatsoever with respect to such Transaction or\nany other transaction by virtue of (i) this letter agreement or (ii) any written or oral expression with respect to such Transaction by either\nparty’s Representatives except, in the case of this letter agreement, for the matters specifically agreed to herein. For purposes of this\nletter agreement, the term “definitive agreement” does not include an executed letter of intent or any other preliminary written\nagreement, nor does it include any written or oral acceptance of any offer or bid by you.\n12. You agree that the Company has not granted you any license, copyright, patent, trade secret or similar right with respect to any of the\nEvaluation Material or any other information provided to you by the Company or its Representatives.\n13. At the request of the Company in its sole discretion and for any reason, or on your own initiative if you decide not to proceed with a\nTransaction (of which decision you will promptly notify the Company), you will promptly (and in any event no later than 10 business\ndays after the request therefor), at your sole discretion, (a) return to us all of the Evaluation Material, including all copies, reproductions,\nsummaries, analyses or extracts thereof or based thereon in your possession or in the possession of any of your Representatives or\n(b) destroy, unless such destruction is commercially unreasonable and/or in violation of your internal compliance obligations, all such\nEvaluation Material in your possession or in the possession of any of your Representatives (such destruction to be certified promptly in\nwriting to us by your authorized officer supervising such destruction). Notwithstanding any such return or destruction of the Evaluation\nMaterial, you and your Representatives will continue to be bound by your obligations of confidentiality and other obligations hereunder;\nprovided that to the extent any Evaluation Material is retained by you because its return or destruction would be commercially\nunreasonable and/or in violation of your internal compliance obligations, then the non-use and non-disclosure provisions of this letter\nagreement shall (notwithstanding paragraph 22 below) specifically survive for so long as such Evaluation Material is retained by you or\nyour Representatives.\n14. The parties acknowledge that remedies at law may be inadequate to protect the parties against any actual or threatened breach of this\nletter agreement by the counterparty or by its Representatives and, without prejudice to the rights and remedies otherwise available to the\nallegedly harmed party, each party agrees that the allegedly harmed party shall be entitled to equitable relief (including specific\nperformance or injunction) in the allegedly harmed party’s favor without proof of actual damages. Any equitable relief shall not be\ndeemed to be the exclusive remedy for a breach of this letter agreement, but shall be in addition to all other remedies available at law or\nequity.\n15. The validity and interpretation of this letter agreement shall be governed by, and construed and enforced in accordance with, the laws of\nthe State of Delaware applicable to agreements made and to be fully performed therein (excluding the conflicts of laws rules). You\nirrevocably and unconditionally (i) submit to the exclusive jurisdiction of the courts of the State of Delaware for the purpose of any suit,\naction, or other proceeding arising out of or relating to this letter agreement and the transactions contemplated thereby (each a\n“Proceeding”), (ii) agree that all claims in respect of any Proceeding shall be heard and determined exclusively in any such court, and\n(iii) waive, to the fullest extent permitted by law, any immunity you have acquired, or hereafter may acquire, from jurisdiction of any\nsuch court or from any legal process therein, and (iv) agree not to commence any Proceeding other than in such court, and waive, to the\nfullest extent permitted by applicable law, any claim that any such Proceeding brought in any such court has been brought in an\ninconvenient forum.\n16. If it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) that any term or provision hereof is\ninvalid or unenforceable, (i) the remaining terms and provision hereof shall be unimpaired and shall remain in full force and effect and\n(ii) the invalid or unenforceable provision or term shall be replaced by a term or provision that is valid and enforceable and that comes\nclosest to expressing the intention of such invalid or unenforceable term or provision.\n17. This Agreement embodies the entire agreement and understanding of the parties hereto and supersedes any and all prior agreements,\narrangements and understandings relating to the matters provided for herein. No alteration, waiver, amendment, change or supplement\nhereto shall be binding or effective unless the same is set forth in writing signed by a duly authorized representative of each party and the\nsame may be modified or waived only by a separate letter executed by the Company and you expressly so modifying or waiving such\nagreement.\n18. This Agreement may be executed and delivered either originally, by facsimile of the signature page or by e-mail of a scanned copy of the\nsignature page in Adobe Acrobat PDF format, and in one or more counterparts, all of which taken together shall constitute one and the\nsame instrument.\n19. This Agreement will be binding upon the parties and its Representatives and its respective heirs, successors and assigns, and will inure to\nthe benefit of the counterparty and its Representatives and their respective heirs, successors and assigns. Neither party may assign any of\nits rights or obligations hereunder; provided, that, the Company reserves the right to assign its rights, powers and privileges under this\nletter agreement (including, without limitation, the right to enforce the terms of this letter agreement) to any person who enters into a\ntransaction to acquire control of the Company or substantially all of its assets.\n20. Each party shall be responsible for its own costs and expenses incurred in connection with your evaluation of the Transaction.\n21. You acknowledge that the Evaluation Material you receive may include technical data developed in the United States, and therefore, you\nshall not export or re-export any Evaluation Material without full compliance with all applicable export laws.\n22. If the parties proceed with the contemplated Transaction, the provisions of this letter agreement shall be superseded by the agreements\ngoverning the contemplated Transaction. In any event, the obligations of the parties and their Representatives set forth herein shall\nterminate three (3) years after the date hereof, provided that any provisions that survive such termination shall continue to survive,\nincluding the last sentence of paragraph 13 hereof.\n[Signature page follows]\nThis Agreement is being delivered to you in duplicate. Kindly execute and return one copy of this letter, which will constitute our Agreement\nwith respect to the subject matter of this letter.\nVery truly yours,\nLASERCARD CORPORATION\nBy: /s/ Robert T. DeVincenzi\nName: R. T. DeVincenzi\nTitle\nCEO\nConfirmed and Agreed to\nthis 6 day of November 2009\nHID GLOBAL CORPORATION\nBy:\n/s/ Timothy B. Moxon\nName:\nTim Moxon\nTitle\nDirector, M&A\nth 8bd2be4b4638f0d148dd4fa541fb71ef.pdf effective_date jurisdiction party term EX-10.22 21 dex1022.htm EMPLOYEE CONFIDENTIALITY, INVENTIONS, AND NON-COMPETITION\nAGREEMENT\nExhibit 10.22\nEmployee Confidentiality, Inventions and Non-Competition Agreement\nEMPLOYEE CONFIDENTIALITY, INVENTIONS, AND NON-COMPETITION\nAGREEMENT\nThis Agreement is made and entered into as of May\n, 2001, by and between Corus Pharma, Inc., a Delaware corporation (“Company”)\nand A. Bruce Montgomery, M.D . (“Employee”).\nRECITALS\nWHEREAS, the Company and Employee have entered into a letter agreement dated as of January 26, 2001, (the “Letter Agreement”) pursuant\nto which Employee has assigned to the Company all rights then or thereafter owned in connection with the Invention (as described in the Letter\nAgreement),\nWHEREAS, the Company and Employee wish to memorialize certain obligations of Employee in connection with maintaining confidentiality\nof the Company’s information, and\nWHEREAS, the Company and the Employee wish to memorialize the understanding between the parties that Employee shall assign any future\ninventions made while an employee of the Company.\nAs a condition of Employee’s ongoing employment, and the special training and knowledge that Employee will acquire through his\nemployment with the Company, and of the covenants and conditions contained herein, the parties agree as follows:\n1. Confidential Information.\n1.1 Company Secrets. During and after Employee’s employment with Company, Employee will protect and hold in strictest confidence all\nConfidential Information of Company and its affiliates and business relations. Confidential Information includes, without limitation, Inventions (as\ndefined below), trade secrets, plans, programs, source and object codes, specifications, drawings, diagrams, schematics, formulae, product designs\nand concepts, reports, studies, technical know-how, methods, customer and supplier lists, customer requirements, price lists and policies, budgets,\nprojections, bids, costs, financial reports and information, financing materials, training programs and manuals, and sales and marketing programs,\nmaterials, plans, and strategies. Employee will not disclose, use, copy, publish, summarize or remove from Company’s premises any material\ncontaining or disclosing any portion of the Confidential Information, except as necessary to carry out Employee’s assigned responsibilities as a\nCompany employee. Upon termination of Employee’s employment or the earlier request of the Company, all material containing or disclosing any\nportion of the Confidential Information shall be returned to Company.\n1.2 Third Party Information. During and after Employee’s employment with Company, Employee will not (a) use any confidential and proprietary\ninformation of Company’s customers, vendors, consultants and other parties with whom Company does business (“Third Party Information”) or (b)\ndisclose any Third Party Information to anyone other than Company personnel who need to know the same in connection with their work for\nCompany, without the prior written authorization of an officer of Company. Employee will not bring onto Company’s\nEmployee Confidentiality, Inventions and Non-Competition Agreement\npremises or disclose to Company any unpublished documents or any other property, written or unwritten, of any former employer, which is known\nby Employee to be subject to a covenant of confidentiality, without the prior written consent of such former employer.\n2. Inventions.\n2.1 Assignment. Subject to Section 2.3 below, all ownership and other rights in all works, programs, know-how, techniques, formulas, data, manuals,\ninventions, ideas, designs, manuals, improvements, discoveries, processes and other works of authorship (“Inventions”) developed, conceived or\nreduced to practice by Employee, whether alone or with others, during the term of his/her employment by Company, shall be the exclusive property\nof Company and, to the extent permitted by law, shall be “works for hire” and, in the case of Inventions that relate directly or indirectly to the\nbusiness of the Company, whether or not developed or conceived during regular working hours or at the Company’s facilities. Employee hereby\nirrevocably agrees, subject to Section 2.3 below, to and does hereby sell, assign and transfer to Company or Company’s designee Employee’s entire\nright, title and interest, including moral rights, in and to the Inventions developed, conceived or reduced to practice by Employee during the term of\nhis employment by Company, and any improvements thereon. Employee will assist Company as reasonably requested, at Company’s expense but\nwithout additional compensation to Employee, during and after the term of his employment to obtain, perfect, sustain and enforce, Company’s rights\nin and ownership of the Inventions covered hereby, including without limitation, the execution of additional instruments of conveyance and assisting\nCompany with applications for patents or copyright or other registrations. If Company, after reasonable efforts, is unable to obtain Employee’s\nsignature to any such instruments (without regard to whether or not Employee is at that time employed by Company), Employee hereby irrevocably\ndesignates and appoints Company as Employee’s agent and attorney-in-fact, which appointment includes an interest, for and in Employee’s behalf to\nexecute, verify and file any such instruments and such other lawfully permits acts to further the purposes of this Section 2.1 with the same legal force\nand effect as if executed by Employee.\n2.2 Information on Inventions. During Employee’s employment by Company and for six months after termination of such employment for any\nreason, Employee will promptly disclose to Company in writing all Inventions developed, conceived or reduced to practice by Employee, whether\nalone or jointly. To the extent disclosure of such Inventions violates any obligations of confidentiality to a third party, Employee will promptly\ndisclose a brief description of such Inventions, a list of the parties to whom the Inventions belong and the reason full disclosure is prohibited.\n2.3 Washington Notice Provision. In accordance with Section 49.44.140 of the Revised Code of Washington, this Agreement (other than Section\n2.4) does not apply to, and Employee has no obligation to assign or offer to assign to Company, any Invention for which no trade secrets or other\nintellectual property of Company were used and no equipment, supplies, or facilities of Company were used and which was developed entirely on\nEmployee’s own time, unless: (i) the Invention relates directly to the business of Company, (ii) the Invention relates to actual or demonstrably\nanticipated research or development work of Company, or (iii) the Invention results from any work performed by Employee for Company, in which\ncases this Agreement shall apply.\n-2-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\n2.4 Prior Inventions. Any Inventions which Employee alone or jointly developed, conceived or reduced to practice or caused to be developed,\nconceived or reduced to practice prior to employment by Company which Employee wishes to exclude from the scope of this Agreement are set\nforth in Exhibit 1 attached hereto (“Prior Inventions”). To the extent disclosure of any such Prior Inventions violates any prior obligations of\nconfidentiality to a third party, Exhibit 1 must include a brief description of such Prior Invention, a list of the parties to whom such Prior Inventions\nbelong and the reason full disclosure is prohibited. To the extent that no Prior Inventions are set forth in Exhibit 1, Employee represents that no such\nPrior Inventions exist. Notwithstanding the foregoing, if Employee incorporates, in the course of his employment by Company, any Prior Inventions\ninto a product, process, service or machine of Company, Employee hereby grants Company a nonexclusive, royalty-free, perpetual, irrevocable,\nworldwide license (with right to sublicense) to make, have made, use, sell, copy, distribute, modify, and otherwise to practice and exploit such Prior\nInventions.\n3. Non-competition and Non-solicitation.\n3.1 Employee agrees that during Employee’s employment by Company and for twelve (12) months after termination of such employment for any\nreason (the “Noncompete Period”), Employee will not in any capacity (including without limitation, as an employee, officer, agent, director,\nconsultant, owner, shareholder, partner, member or joint venture) directly or indirectly, whether or not for compensation, engage in or assist others to\nengage in any business that is, or is preparing to be, in competition with any business in the field of drug development involving any clinical\nindication that, as of the date of termination of Employee’s employment, the Company has a drug candidate in preclinical or clinical studies;\nprovided, however, that nothing herein shall prevent the purchase or ownership by Employee of shares which constitute less than one percent of the\noutstanding equity securities of a publicly-held company. Notwithstanding the foregoing, the Noncompete Period shall be extended from twelve (12)\nto twenty-four (24) months if, upon termination of Employee’s employment the Company pays Employee an amount, in addition to any post-\nemployment compensation Employee is then entitled to receive, at least equal to the product obtained by multiplying 12 by Employee’s then base\nmonthly compensation.\n3.2 Employee further agrees that during his/her employment and the Noncompete Period, Employee will not for any competitive reason call on,\nreveal the name of, or otherwise solicit, accept business from or attempt to entice away from Company any actual or identified potential customer of\nCompany, nor will he assist others in doing so. Employee agrees that he will not, during the Noncompete Period, encourage or solicit or assist others\nto encourage or solicit any other employee or consultant of Company to leave such employment for any reason.\n3.3 Employee acknowledges that the covenants in Sections 3.1, and 3.2 are reasonable in relation to the business in which Company is engaged, the\nposition Employee has been afforded with Company, and Employee’s existing and to be acquired knowledge of Company’s business, and that\ncompliance with such covenants will not prevent him/her from pursuing his/her livelihood. However, should any court of competent jurisdiction find\nthat any provision of such covenants is unreasonable, whether in period of time, geographical area, or otherwise, then in that event the parties agree\nthat such covenants shall be interpreted and enforced to the maximum extent which the court deems reasonable.\n-3-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\n4. Remedies. Employee acknowledges that the harm to Company from any breach of Employee’s obligations under or related to this Agreement may\nbe difficult to determine and may be wholly or partially irreparable, and such obligations may be enforced by injunctive relief and other available\nremedies at law or in equity. The parties further agree that Company shall not be required to post any bond in connection with enforcement of\nEmployer’s obligations hereunder (unless required by law or court rule, in which case the bond shall be $5,000), and that Company in its sole\ndiscretion shall be entitled to inform third parties of the existence of this Agreement and of Employee’s obligations hereunder. Any amounts received\nby Employee or by any other party through Employee in breach of this Agreement shall be held in trust for the benefit of Company. In the event\nEmployee breaches Section 3.1 or 3.2, the Noncompete Period shall be extended by the period of time during which Employee is in breach of\nSection 3.1 or 3.2, as the case may be. No term hereof shall be construed to limit or supersede any other right or remedy of Company under\napplicable law with respect to the protection of trade secrets or otherwise.\n5. No Conflicting Agreements. Employee represents that Employee (a) has no conflicting obligations to assign any Invention and (b) has no other\nemployment, consulting or undertakings which would restrict or impair Employee’s performance of this Agreement. Employee warrants that any and\nall items, technology, and Inventions of any nature developed or provided by Employee under this Agreement will be original to Employee and will\nnot, as provided to Company or when used and exploited by Company and its contractors and customers and their respective successors and assigns,\ninfringe in any respect the rights or property of Employee or any third party. Employee will indemnify Company for all losses, claims, and expenses\n(including reasonable attorneys’ fees) arising from any breach of Employee’s warranties.\n6. At Will Employment. Unless and to the extent otherwise agreed by Company and Employee in a separate written employment agreement,\nEmployee’s employment is and will be “at will.” This means either party can end the employment relationship at any time for any reason. No term of\nany employment agreement between Company and Employee shall be construed to conflict with or lessen Employee’s obligations under this\nAgreement.\n7. Miscellaneous.\n7.1 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the respective successors, assigns, heirs, representatives,\nexecutors and administrators of the parties. The phrase “an officer of Company” as used herein shall refer to an officer of Company other than\nEmployee. No waiver of or forbearance to enforce any right or provision hereof shall be binding unless in writing and signed by the party to be\nbound, and no such waiver or forbearance in any instance shall apply to any other instance or to any other right or provision.\n7.2 Governing Law; Venue. This Agreement will be governed by the laws of the State of Washington without regard to its conflicts of laws rules.\nThe parties hereby agree that the exclusive venue for all matters and actions arising under this Agreement shall be and remain in the state and federal\ncourts sitting in King County, Washington, and the parties hereby consent to the personal jurisdiction of such courts. The prevailing party shall be\nentitled to reasonable attorneys’ fees and costs incurred in connection with any such litigation arising under or related to this Agreement.\n-4-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\n7.3 Assignment. This Agreement is personal to Employee and shall not be assignable by Employee. All the terms and provisions of this Agreement\nshall be binding on and shall inure to the benefit of and be enforceable by the parties and their respective heirs, successors and permitted assigns.\n7.4 Waivers. No delay or failure by any party to this Agreement in exercising, protecting or enforcing any of its rights, titles, interests or remedies\nhereunder, and no course of dealing or performance with respect thereto, shall constitute a waiver. The express waiver by a party of any right, title,\ninterest or remedy in a particular instance or circumstance shall not constitute a waiver in any other instance or circumstance. All rights and remedies\nshall be cumulative and not exclusive of any other rights or remedies.\n7.5 Amendments In Writing. No amendment, modification, waiver, termination or discharge of any provision of this Employment Agreement, nor\nconsent to any departure from any provision of this Agreement by either party, shall in any event be effective unless the same shall be in writing,\nspecifically identifying this Agreement and the provision intended to be amended, modified, waived, terminated or discharged and signed by the\nCompany and Employee, and each such amendment, modification, waiver, termination or discharge shall be effective only in the specific instance\nand for the specific purpose for which given. No provision of this Agreement shall be varied, contradicted or explained by any oral agreement,\ncourse of dealing or performance or any other matter not set forth in an agreement in writing and signed by the Company and Employee.\n7.6 Headings. All headings used in this Agreement are for convenience only and shall not in any way affect the construction of, or be taken into\nconsideration in interpreting, this Agreement.\n7.7 Counterparts. This Agreement, and any amendment or modification entered into pursuant to Section 7.5, may be executed in any number of\ncounterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken\ntogether, shall constitute one and the same instrument.\n7.8 Entire Agreement; Severability. This Agreement represents the entire agreement between Company and Employee concerning the subject matter\nhereof and supersedes all prior agreements, correspondence and understandings, whether oral or written, with respect to that subject matter. If any\nprovision of this Agreement is held to be invalid or unenforceable to any extent in any context, it shall nevertheless be enforced to the fullest extent\nallowed by law in that and other contexts, and the validity and force of the remainder of this Agreement shall not be affected thereby.\n-5-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\nBY SIGNING BELOW, EMPLOYEE ACKNOWLEDGES THAT HE HAS READ THIS AGREEMENT IN ITS ENTIRETY AND\nUNDERSTANDS IT, INCLUDING THE EMPLOYMENT AT WILL PROVISION OF SECTION 6, WHICH INDICATES THAT EMPLOYEE\nHAS NO CONTRACT OR PROMISE OF ONGOING EMPLOYMENT. EMPLOYEE FURTHER ACKNOWLEDGES THAT HE HAS HAD THE\nOPPORTUNITY TO CONSULT WITH COUNSEL WITH RESPECT TO THIS AGREEMENT.\nCORUS PHARMA, INC.\nA. BRUCE MONTGOMERY, M.D .\nBy: /s/ Jonathan P. Mow\n/s/ A. Bruce Montgomery, M.D .\nJonathan P. Mow, Vice President\nAddress:\n2025 First Avenue, Suite 800\nDated: May 18, 2001\nSeattle, Washington 98121\nDated:\nMay\n, 2001\n-6-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\nExhibit 1\nEmployee’s Prior Inventions\nInventions not covered in this agreement relate to issued patents on aerosolized pentamidine, formulation patents on aminoglycosides for inhalation,\nColistin for inhalation, treatment of tuberculosis with tobramycin. US patent numbers are 6,083,922 and 5,767,068 and 5,508,269. Foreign filings are\nalso issued or active.\nIn addition, I have filed an application in the use of tobramycin for treatment of bronchiectasis at PathoGenesis corporation which is pending.\n-7- EX-10.22 21 dex1022.htm EMPLOYEE CONFIDENTIALITY, INVENTIONS, AND NON-COMPETITION\nAGREEMENT\nExhibit 10.22\nEmployee Confidentiality, Inventions and Non-Competition Agreement\nEMPLOYEE CONFIDENTIALITY, INVENTIONS, AND NON-COMPETITION\nAGREEMENT\nThis Agreement is made and entered into as of May , 2001, by and between Corus Pharma, Inc., a Delaware corporation (“Company)\nand A. Bruce Montgomery, M.D. (“Employee”).\nRECITALS\nWHEREAS, the Company and Employee have entered into a letter agreement dated as of January 26, 2001, (the “Letter Agreement”) pursuant\nto which Employee has assigned to the Company all rights then or thereafter owned in connection with the Invention (as described in the Letter\nAgreement),\nWHEREAS, the Company and Employee wish to memorialize certain obligations of Employee in connection with maintaining confidentiality\nof the Company’s information, and\nWHEREAS, the Company and the Employee wish to memorialize the understanding between the parties that Employee shall assign any future\ninventions made while an employee of the Company.\nAs a condition of Employee’s ongoing employment, and the special training and knowledge that Employee will acquire through his\nemployment with the Company, and of the covenants and conditions contained herein, the parties agree as follows:\n1. Confidential Information.\n1.1 Company Secrets. During and after Employee’s employment with Company, Employee will protect and hold in strictest confidence all\nConfidential Information of Company and its affiliates and business relations. Confidential Information includes, without limitation, Inventions (as\ndefined below), trade secrets, plans, programs, source and object codes, specifications, drawings, diagrams, schematics, formulae, product designs\nand concepts, reports, studies, technical know-how, methods, customer and supplier lists, customer requirements, price lists and policies, budgets,\nprojections, bids, costs, financial reports and information, financing materials, training programs and manuals, and sales and marketing programs,\nmaterials, plans, and strategies. Employee will not disclose, use, copy, publish, summarize or remove from Company’s premises any material\ncontaining or disclosing any portion of the Confidential Information, except as necessary to carry out Employee’s assigned responsibilities as a\nCompany employee. Upon termination of Employee’s employment or the earlier request of the Company, all material containing or disclosing any\nportion of the Confidential Information shall be returned to Company.\n1.2 Third Party Information. During and after Employee’s employment with Company, Employee will not (a) use any confidential and proprietary\ninformation of Company’s customers, vendors, consultants and other parties with whom Company does business (“Third Party Information”) or (b)\ndisclose any Third Party Information to anyone other than Company personnel who need to know the same in connection with their work for\nCompany, without the prior written authorization of an officer of Company. Employee will not bring onto Company’s\nEmployee Confidentiality, Inventions and Non-Competition Agreement\npremises or disclose to Company any unpublished documents or any other property, written or unwritten, of any former employer, which is known\nby Employee to be subject to a covenant of confidentiality, without the prior written consent of such former employer.\n2. Inventions.\n2.1 Assignment. Subject to Section 2.3 below, all ownership and other rights in all works, programs, know-how, techniques, formulas, data, manuals,\ninventions, ideas, designs, manuals, improvements, discoveries, processes and other works of authorship (“Inventions™) developed, conceived or\nreduced to practice by Employee, whether alone or with others, during the term of his/her employment by Company, shall be the exclusive property\nof Company and, to the extent permitted by law, shall be “works for hire” and, in the case of Inventions that relate directly or indirectly to the\nbusiness of the Company, whether or not developed or conceived during regular working hours or at the Company’s facilities. Employee hereby\nirrevocably agrees, subject to Section 2.3 below, to and does hereby sell, assign and transfer to Company or Company’s designee Employee’s entire\nright, title and interest, including moral rights, in and to the Inventions developed, conceived or reduced to practice by Employee during the term of\nhis employment by Company, and any improvements thereon. Employee will assist Company as reasonably requested, at Company’s expense but\nwithout additional compensation to Employee, during and after the term of his employment to obtain, perfect, sustain and enforce, Company’s rights\nin and ownership of the Inventions covered hereby, including without limitation, the execution of additional instruments of conveyance and assisting\nCompany with applications for patents or copyright or other registrations. If Company, after reasonable efforts, is unable to obtain Employee’s\nsignature to any such instruments (without regard to whether or not Employee is at that time employed by Company), Employee hereby irrevocably\ndesignates and appoints Company as Employee’s agent and attorney-in-fact, which appointment includes an interest, for and in Employee’s behalf to\nexecute, verify and file any such instruments and such other lawfully permits acts to further the purposes of this Section 2.1 with the same legal force\nand effect as if executed by Employee.\n2.2 Information on Inventions. During Employee’s employment by Company and for six months after termination of such employment for any\nreason, Employee will promptly disclose to Company in writing all Inventions developed, conceived or reduced to practice by Employee, whether\nalone or jointly. To the extent disclosure of such Inventions violates any obligations of confidentiality to a third party, Employee will promptly\ndisclose a brief description of such Inventions, a list of the parties to whom the Inventions belong and the reason full disclosure is prohibited.\n2.3 Washington Notice Provision. In accordance with Section 49.44.140 of the Revised Code of Washington, this Agreement (other than Section\n2.4) does not apply to, and Employee has no obligation to assign or offer to assign to Company, any Invention for which no trade secrets or other\nintellectual property of Company were used and no equipment, supplies, or facilities of Company were used and which was developed entirely on\nEmployee’s own time, unless: (i) the Invention relates directly to the business of Company, (ii) the Invention relates to actual or demonstrably\nanticipated research or development work of Company, or (iii) the Invention results from any work performed by Employee for Company, in which\ncases this Agreement shall apply.\n-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\n2.4 Prior Inventions. Any Inventions which Employee alone or jointly developed, conceived or reduced to practice or caused to be developed,\nconceived or reduced to practice prior to employment by Company which Employee wishes to exclude from the scope of this Agreement are set\nforth in Exhibit 1 attached hereto (“Prior Inventions™). To the extent disclosure of any such Prior Inventions violates any prior obligations of\nconfidentiality to a third party, Exhibit 1 must include a brief description of such Prior Invention, a list of the parties to whom such Prior Inventions\nbelong and the reason full disclosure is prohibited. To the extent that no Prior Inventions are set forth in Exhibit 1, Employee represents that no such\nPrior Inventions exist. Notwithstanding the foregoing, if Employee incorporates, in the course of his employment by Company, any Prior Inventions\ninto a product, process, service or machine of Company, Employee hereby grants Company a nonexclusive, royalty-free, perpetual, irrevocable,\nworldwide license (with right to sublicense) to make, have made, use, sell, copy, distribute, modify, and otherwise to practice and exploit such Prior\nInventions.\n3. Non-competition and Non-solicitation.\n3.1 Employee agrees that during Employee’s employment by Company and for twelve (12) months after termination of such employment for any\nreason (the “Noncompete Period”), Employee will not in any capacity (including without limitation, as an employee, officer, agent, director,\nconsultant, owner, shareholder, partner, member or joint venture) directly or indirectly, whether or not for compensation, engage in or assist others to\nengage in any business that is, or is preparing to be, in competition with any business in the field of drug development involving any clinical\nindication that, as of the date of termination of Employee’s employment, the Company has a drug candidate in preclinical or clinical studies;\nprovided, however, that nothing herein shall prevent the purchase or ownership by Employee of shares which constitute less than one percent of the\noutstanding equity securities of a publicly-held company. Notwithstanding the foregoing, the Noncompete Period shall be extended from twelve (12)\nto twenty-four (24) months if, upon termination of Employee’s employment the Company pays Employee an amount, in addition to any post-\nemployment compensation Employee is then entitled to receive, at least equal to the product obtained by multiplying 12 by Employee’s then base\nmonthly compensation.\n3.2 Employee further agrees that during his/her employment and the Noncompete Period, Employee will not for any competitive reason call on,\nreveal the name of, or otherwise solicit, accept business from or attempt to entice away from Company any actual or identified potential customer of\nCompany, nor will he assist others in doing so. Employee agrees that he will not, during the Noncompete Period, encourage or solicit or assist others\nto encourage or solicit any other employee or consultant of Company to leave such employment for any reason.\n3.3 Employee acknowledges that the covenants in Sections 3.1, and 3.2 are reasonable in relation to the business in which Company is engaged, the\nposition Employee has been afforded with Company, and Employee’s existing and to be acquired knowledge of Company’s business, and that\ncompliance with such covenants will not prevent him/her from pursuing his/her livelihood. However, should any court of competent jurisdiction find\nthat any provision of such covenants is unreasonable, whether in period of time, geographical area, or otherwise, then in that event the parties agree\nthat such covenants shall be interpreted and enforced to the maximum extent which the court deems reasonable.\n_3-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\n4. Remedies. Employee acknowledges that the harm to Company from any breach of Employee’s obligations under or related to this Agreement may\nbe difficult to determine and may be wholly or partially irreparable, and such obligations may be enforced by injunctive relief and other available\nremedies at law or in equity. The parties further agree that Company shall not be required to post any bond in connection with enforcement of\nEmployer’s obligations hereunder (unless required by law or court rule, in which case the bond shall be $5,000), and that Company in its sole\ndiscretion shall be entitled to inform third parties of the existence of this Agreement and of Employee’s obligations hereunder. Any amounts received\nby Employee or by any other party through Employee in breach of this Agreement shall be held in trust for the benefit of Company. In the event\nEmployee breaches Section 3.1 or 3.2, the Noncompete Period shall be extended by the period of time during which Employee is in breach of\nSection 3.1 or 3.2, as the case may be. No term hereof shall be construed to limit or supersede any other right or remedy of Company under\napplicable law with respect to the protection of trade secrets or otherwise.\n5. No Confflicting Agreements. Employee represents that Employee (a) has no conflicting obligations to assign any Invention and (b) has no other\nemployment, consulting or undertakings which would restrict or impair Employee’s performance of this Agreement. Employee warrants that any and\nall items, technology, and Inventions of any nature developed or provided by Employee under this Agreement will be original to Employee and will\nnot, as provided to Company or when used and exploited by Company and its contractors and customers and their respective successors and assigns,\ninfringe in any respect the rights or property of Employee or any third party. Employee will indemnify Company for all losses, claims, and expenses\n(including reasonable attorneys’ fees) arising from any breach of Employee’s warranties.\n6. At Will Employment. Unless and to the extent otherwise agreed by Company and Employee in a separate written employment agreement,\nEmployee’s employment is and will be “at will.” This means either party can end the employment relationship at any time for any reason. No term of\nany employment agreement between Company and Employee shall be construed to conflict with or lessen Employee’s obligations under this\nAgreement.\n7. Miscellaneous.\n7.1 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the respective successors, assigns, heirs, representatives,\nexecutors and administrators of the parties. The phrase “an officer of Company” as used herein shall refer to an officer of Company other than\nEmployee. No waiver of or forbearance to enforce any right or provision hereof shall be binding unless in writing and signed by the party to be\nbound, and no such waiver or forbearance in any instance shall apply to any other instance or to any other right or provision.\n7.2 Governing Law; Venue. This Agreement will be governed by the laws of the State of Washington without regard to its conflicts of laws rules.\nThe parties hereby agree that the exclusive venue for all matters and actions arising under this Agreement shall be and remain in the state and federal\ncourts sitting in King County, Washington, and the parties hereby consent to the personal jurisdiction of such courts. The prevailing party shall be\nentitled to reasonable attorneys’ fees and costs incurred in connection with any such litigation arising under or related to this Agreement.\n4-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\n7.3 Assignment. This Agreement is personal to Employee and shall not be assignable by Employee. All the terms and provisions of this Agreement\nshall be binding on and shall inure to the benefit of and be enforceable by the parties and their respective heirs, successors and permitted assigns.\n7.4 Waivers. No delay or failure by any party to this Agreement in exercising, protecting or enforcing any of its rights, titles, interests or remedies\nhereunder, and no course of dealing or performance with respect thereto, shall constitute a waiver. The express waiver by a party of any right, title,\ninterest or remedy in a particular instance or circumstance shall not constitute a waiver in any other instance or circumstance. All rights and remedies\nshall be cumulative and not exclusive of any other rights or remedies.\n7.5 Amendments In Writing. No amendment, modification, waiver, termination or discharge of any provision of this Employment Agreement, nor\nconsent to any departure from any provision of this Agreement by either party, shall in any event be effective unless the same shall be in writing,\nspecifically identifying this Agreement and the provision intended to be amended, modified, waived, terminated or discharged and signed by the\nCompany and Employee, and each such amendment, modification, waiver, termination or discharge shall be effective only in the specific instance\nand for the specific purpose for which given. No provision of this Agreement shall be varied, contradicted or explained by any oral agreement,\ncourse of dealing or performance or any other matter not set forth in an agreement in writing and signed by the Company and Employee.\n7.6 Headings. All headings used in this Agreement are for convenience only and shall not in any way affect the construction of, or be taken into\nconsideration in interpreting, this Agreement.\n7.7 Counterparts. This Agreement, and any amendment or modification entered into pursuant to Section 7.5, may be executed in any number of\ncounterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken\ntogether, shall constitute one and the same instrument.\n7.8 Entire Agreement; Severability. This Agreement represents the entire agreement between Company and Employee concerning the subject matter\nhereof and supersedes all prior agreements, correspondence and understandings, whether oral or written, with respect to that subject matter. If any\nprovision of this Agreement is held to be invalid or unenforceable to any extent in any context, it shall nevertheless be enforced to the fullest extent\nallowed by law in that and other contexts, and the validity and force of the remainder of this Agreement shall not be affected thereby.\n_5-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\nBY SIGNING BELOW, EMPLOYEE ACKNOWLEDGES THAT HE HAS READ THIS AGREEMENT IN ITS ENTIRETY AND\nUNDERSTANDS IT, INCLUDING THE EMPLOYMENT AT WILL PROVISION OF SECTION 6, WHICH INDICATES THAT EMPLOYEE\nHAS NO CONTRACT OR PROMISE OF ONGOING EMPLOYMENT. EMPLOYEE FURTHER ACKNOWLEDGES THAT HE HAS HAD THE\nOPPORTUNITY TO CONSULT WITH COUNSEL WITH RESPECT TO THIS AGREEMENT.\nCORUS PHARMA, INC. A. BRUCE MONTGOMERY, M.D.\nBy: /s/ Jonathan P. Mow /s/ A. Bruce Montgomery, M.D.\nJonathan P. Mow, Vice President\nAddress: 2025 First Avenue, Suite 800\nDated: May 18, 2001 Seattle, Washington 98121\nDated: May , 2001\n-6-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\nExhibit 1\nEmployee’s Prior Inventions\nInventions not covered in this agreement relate to issued patents on aerosolized pentamidine, formulation patents on aminoglycosides for inhalation,\nColistin for inhalation, treatment of tuberculosis with tobramycin. US patent numbers are 6,083,922 and 5,767,068 and 5,508,269. Foreign filings are\nalso issued or active.\nIn addition, I have filed an application in the use of tobramycin for treatment of bronchiectasis at PathoGenesis corporation which is pending.\n_7- EX-10.22 21 ex1022.htm EMPLOYEE CONFIDENTIALITY, INVENTIONS, AND NON-COMPETITION\nAGREEMENT\nExhibit 10.22\nEmployee Confidentiality, Inventions and Non-Competition Agreement\nEMPLOYEE CONFIDENTIALITY, INVENTIONS, AND NON-COMPETITION\nAGREEMENT\nThis Agreement is made and entered into as of May 2001, by and between Corus Pharma, Inc., a Delaware corporation ("Company.")\nand A. Bruce Montgomery, M.D. ("Employee").\nRECITALS\nWHEREAS, the Company and Employee have entered into a letter agreement dated as of January 26, 2001, (the "Letter Agreement") pursuant\nto which Employee has assigned to the Company all rights then or thereafter owned in connection with the Invention (as described in the Letter\nAgreement),\nWHEREAS, the Company and Employee wish to memorialize certain obligations of Employee in connection with maintaining confidentiality\nof the Company's information, and\nWHEREAS, the Company and the Employee wish to memorialize the understanding between the parties that Employee shall assign any future\ninventions made while an employee of the Company.\nAs a condition of Employee's ongoing employment, and the special training and knowledge that Employee will acquire through his\nemployment with the Company, and of the covenants and conditions contained herein, the parties agree as follows:\n1. Confidential Information.\n1.1 Company Secrets. During and after Employee's employment with Company, Employee will protect and hold in strictest confidence all\nConfidential Information of Company and its affiliates and business relations. Confidential Information includes, without limitation, Inventions (as\ndefined\nbelow),\ntrade\nsecrets,\nplans,\nprograms,\nsource\nand\nobject\ncodes,\nspecifications,\ndrawings,\ndiagrams,\nschematics,\nformulae,\nproduct\ndesigns\nand concepts, reports, studies, technical know-how, methods, customer and supplier lists, customer requirements, price lists and policies, budgets,\nprojections, bids, costs, financial reports and information, financing materials, training programs and manuals, and sales and marketing programs,\nmaterials, plans, and strategies. Employee will not disclose, use, copy, publish, summarize or remove from Company's premises any material\ncontaining or disclosing any portion of the Confidential Information, except as necessary to carry out Employee's assigned responsibilities as a\nCompany employee. Upon termination of Employee's employment or the earlier request of the Company, all material containing or disclosing any\nportion of the Confidential Information shall be returned to Company.\n1.2 Third Party Information. During and after Employee's employment with Company, Employee will not (a) use any confidential and proprietary\ninformation of Company's customers, vendors, consultants and other parties with whom Company does business ("Third Party Information") or (b)\ndisclose any Third Party Information to anyone other than Company personnel who need to know the same in connection with their work for\nCompany, without the prior written authorization of an officer of Company. Employee will not bring onto Company's\nEmployee Confidentiality, Inventions and Non-Competition Agreement\npremises or disclose to Company any unpublished documents or any other property, written or unwritten, of any former employer, which is known\nby Employee to be subject to a covenant of confidentiality, without the prior written consent of such former employer.\n2. Inventions.\n2.1 Assignment. Subject to Section 2.3 below, all ownership and other rights in all works, programs, know-how, techniques, formulas, data, manuals,\ninventions, ideas, designs, manuals, improvements, discoveries, processes and other works of authorship ("Inventions") developed, conceived or\nreduced to practice by Employee, whether alone or with others, during the term of his/her employment by Company, shall be the exclusive property\nof Company and, to the extent permitted by law, shall be "works for hire" and, in the case of Inventions that relate directly or indirectly to the\nbusiness of the Company, whether or not developed or conceived during regular working hours or at the Company's facilities. Employee hereby\nirrevocably agrees, subject to Section 2.3 below, to and does hereby sell, assign and transfer to Company or Company's designee Employee's entire\nright, title and interest, including moral rights, in and to the Inventions developed, conceived or reduced to practice by Employee during the term of\nhis employment by Company, and any improvements thereon. Employee will assist Company as reasonably requested, at Company's expense but\nwithout additional compensation to Employee, during and after the term of his employment to obtain, perfect, sustain and enforce, Company's rights\nin and ownership of the Inventions covered hereby, including without limitation, the execution of additional instruments of conveyance and assisting\nCompany with applications for patents or copyright or other registrations. If Company, after reasonable efforts, is unable to obtain Employee's\nsignature to any such instruments (without regard to whether or not Employee is at that time employed by Company), Employee hereby irrevocably\ndesignates and appoints Company as Employee's agent and attorney-in-fact, which appointment includes an interest, for and in Employee's behalf\nto\nexecute, verify and file any such instruments and such other lawfully permits acts to further the purposes of this Section 2.1 with the same legal force\nand effect as if executed by Employee.\n2.2 Information on Inventions. During Employee's employment by Company and for six months after termination of such employment for any\nreason, Employee will promptly disclose to Company in writing all Inventions developed, conceived or reduced to practice by Employee, whether\nalone or jointly. To the extent disclosure of such Inventions violates any obligations of confidentiality to a third party, Employee will promptly\ndisclose a brief description of such Inventions, a list of the parties to whom the Inventions belong and the reason full disclosure is prohibited.\n2.3 Washington Notice Provision. In accordance with Section 49.44.140 of the Revised Code of Washington, this Agreement (other than Section\n2.4) does not apply to, and Employee has no obligation to assign or offer to assign to Company, any Invention for which no trade secrets or other\nintellectual property of Company were used and no equipment, supplies, or facilities of Company were used and which was developed entirely on\nEmployee's own time, unless: (i) the Invention relates directly to the business of Company, (ii) the Invention relates to actual or demonstrably\nanticipated research or development work of Company, or (iii) the Invention results from any work performed by Employee\nfor\nCompany,\nin\nwhich\ncases this Agreement shall apply.\n-2-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\n2.4 Prior Inventions. Any Inventions which Employee alone or jointly developed, conceived or reduced to practice or caused to be developed,\nconceived or reduced to practice prior to employment by Company which Employee wishes to exclude from the scope of this Agreement are set\nforth in Exhibit 1 attached hereto ("Prior Inventions"). To the extent disclosure of any such Prior Inventions violates any prior obligations of\nconfidentiality to a third party, Exhibit 1 must include a brief description of such Prior Invention, a list of the parties to whom such Prior Inventions\nbelong and the reason full disclosure is prohibited. To the extent that no Prior Inventions are set forth in Exhibit 1, Employee represents that no such\nPrior Inventions exist. Notwithstanding the foregoing, if Employee incorporates, in the course of his employment by Company, any Prior Inventions\ninto a product, process, service or machine of Company, Employee hereby grants Company a nonexclusive, royalty-free, perpetual, irrevocable,\nworldwide license (with right to sublicense) to make, have made, use, sell, copy, distribute, modify, and otherwise to practice and exploit such Prior\nInventions.\n3. Non-competition and Non-solicitation.\n3.1 Employee agrees that during Employee's employment by Company and for twelve (12) months after termination of such employment for any\nreason (the "Noncompete Period"), Employee will not in any capacity (including without limitation, as an employee, officer, agent, director,\nconsultant, owner, shareholder, partner, member or joint venture) directly or indirectly, whether or not for compensation, engage in or assist others\nto\nengage in any business that is, or is preparing to be, in competition with any business in the field of drug development involving any clinical\nindication that, as of the date of termination of Employee's employment, the Company has a drug candidate in preclinical or clinical studies;\nprovided, however, that nothing herein shall prevent the purchase or ownership by Employee of shares which constitute less than one percent of the\noutstanding equity securities of a publicly-held company. Notwithstanding the foregoing, the Noncompete Period shall be extended from twelve (12)\nto twenty-four (24) months if, upon termination of Employee's employment the Company pays Employee an amount, in addition to any post-\nemployment compensation Employee is then entitled to receive, at least equal to the product obtained by multiplying 12 by Employee's then\nbase\nmonthly compensation.\n3.2 Employee further agrees that during his/her employment and the Noncompete Period, Employee will not for any competitive reason call\non,\nreveal\nthe name of, or otherwise solicit, accept business from or attempt to entice away from Company any actual or identified potential customer\nof\nCompany, nor will he assist others in doing so. Employee agrees that he will not, during the Noncompete Period, encourage or solicit or assist others\nto encourage or solicit any other employee or consultant of Company to leave such employment for any reason.\n3.3 Employee acknowledges that the covenants in Sections 3.1, and 3.2 are reasonable in relation to the business in which Company is engaged,\nthe\nposition Employee has been afforded with Company, and Employee's existing and to be acquired knowledge of Company's business, and that\ncompliance with such covenants will not prevent him/her from pursuing his/her livelihood. However, should any court of competent jurisdiction find\nthat any provision of such covenants is unreasonable, whether in period of time, geographical area, or otherwise, then in that event the parties agree\nthat such covenants shall be interpreted and enforced to the maximum extent which the court deems reasonable.\n-3-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\n4.\nRemedies. Employee acknowledges that the harm to Company from any breach of Employee's obligations under or related to this Agreement may\nbe difficult to determine and may be wholly or partially irreparable, and such obligations may be enforced by injunctive relief and other available\nremedies at law or in equity. The parties further agree that Company shall not be required to post any bond in connection with enforcement\nof\nEmployer's obligations hereunder (unless required by law or court rule, in which case the bond shall be $5,000), and that Company in its sole\ndiscretion shall be entitled to inform third parties of the existence of this Agreement and of Employee's obligations hereunder. Any amounts received\nby Employee or by any other party through Employee in breach of this Agreement shall be held in trust for the benefit of Company. In the event\nEmployee breaches Section 3.1 or 3.2, the Noncompete Period shall be extended by the period of time during which Employee is in breach of\nSection 3.1 or 3.2, as the case may be. No term hereof shall be construed to limit or supersede any other right or remedy of Company under\napplicable law with respect to the protection of trade secrets or otherwise.\n5. No Conflicting Agreements. Employee represents that Employee (a) has no conflicting obligations to assign any Invention and (b) has no other\nemployment, consulting or undertakings which would restrict or impair Employee's performance of this Agreement. Employee warrants that any and\nall\nitems, technology, and Inventions of any nature developed or provided by Employee under this Agreement will be original to Employee and will\nnot, as provided to Company or when used and exploited by Company and its contractors and customers and their respective successors and assigns,\ninfringe in any respect the rights or property of Employee or any third party. Employee will indemnify Company for all losses, claims, and expenses\n(including reasonable attorneys' fees) arising from any breach of Employee's warranties.\n6.\nAt Will Employment. Unless and to the extent otherwise agreed by Company and Employee in a separate written employment agreement,\nEmployee's employment is and will be "at will." This means either party can end the employment relationship at any time for any reason. No term of\nany employment agreement between Company and Employee shall be construed to conflict with or lessen Employee's obligations under this\nAgreement.\n7. Miscellaneous.\n7.1 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the respective successors, assigns, heirs, representatives,\nexecutors and administrators of the parties. The phrase "an officer of Company" as used herein shall refer to an officer of Company other than\nEmployee. No waiver of or forbearance to enforce any right or provision hereof shall be binding unless in writing and signed by the party to be\nbound, and no such waiver or forbearance in any instance shall apply to any other instance or to any other right or provision.\n7.2 Governing Law; Venue. This Agreement will be governed by the laws of the State of Washington without regard to its conflicts of laws rules.\nThe parties hereby agree that the exclusive venue for all matters and actions arising under this Agreement shall be and remain in the state and federal\ncourts sitting in King County, Washington, and the parties hereby consent to the personal jurisdiction of such courts. The prevailing party shall be\nentitled to reasonable attorneys' fees and costs incurred in connection with any such litigation arising under or related to this Agreement.\n-4-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\n7.3 Assignment. This Agreement is personal to Employee and shall not be assignable by Employee. All the terms and provisions of this Agreement\nshall be binding on and shall inure to the benefit of and be enforceable by the parties and their respective heirs, successors and permitted assigns.\n7.4 Waivers. No delay or failure by any party to this Agreement in exercising, protecting or enforcing any of its rights, titles, interests or remedies\nhereunder, and no course of dealing or performance with respect thereto, shall constitute a waiver. The express waiver by a party of any right, title,\ninterest or remedy in a particular instance or circumstance shall not constitute a waiver in any other instance or circumstance. All rights and remedies\nshall be cumulative and not exclusive of any other rights or remedies.\n7.5 Amendments In Writing. No amendment, modification, waiver, termination or discharge of any provision of this Employment Agreement, nor\nconsent to any departure from any provision of this Agreement by either party, shall in any event be effective unless the same shall be in writing,\nspecifically identifying this Agreement and the provision intended to be amended, modified, waived, terminated or discharged and signed by the\nCompany and Employee, and each such amendment, modification, waiver, termination or discharge shall be effective only in the specific instance\nand\nfor\nthe specific purpose for which given. No provision of this Agreement shall be varied, contradicted or explained by any oral agreement,\ncourse of dealing or performance or any other matter not set forth in an agreement in writing and signed by the Company and Employee.\n7.6 Headings. All headings used in this Agreement are for convenience only and shall not in any way affect the construction of, or be taken into\nconsideration in interpreting, this Agreement.\n7.7\nCounterparts. This Agreement, and any amendment or modification entered into pursuant to Section 7.5, may be executed in any number of\ncounterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken\ntogether, shall constitute one and the same instrument.\n7.8 Entire Agreement; Severability. This Agreement represents the entire agreement between Company and Employee concerning the subject matter\nhereof and supersedes all prior agreements, correspondence and understandings, whether oral or written, with respect to that subject matter. If any\nprovision of this Agreement is held to be invalid or unenforceable to any extent in any context, it shall nevertheless be enforced to the fullest extent\nallowed by law in that and other contexts, and the validity and force of the remainder of this Agreement shall not be affected thereby.\n-5-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\nBY SIGNING BELOW, EMPLOYEE ACKNOWLEDGES THAT HE HAS READ THIS AGREEMENT IN ITS ENTIRETY AND\nUNDERSTANDS IT, INCLUDING THE EMPLOYMENT AT WILL PROVISION OF SECTION 6, WHICH INDICATES THAT EMPLOYEE\nHAS NO CONTRACT OR PROMISE OF ONGOING EMPLOYMENT. EMPLOYEE FURTHER ACKNOWLEDGES THAT HE HAS HAD THE\nOPPORTUNITY TO CONSULT WITH COUNSEL WITH RESPECT TO THIS AGREEMENT.\nCORUS PHARMA, INC.\nA. BRUCE MONTGOMERY, M.D.\nBy: /s/ Jonathan P. Mow\n/s/ A. Bruce Montgomery, M.D.\nJonathan P. Mow, Vice President\nAddress:\n2025 First Avenue, Suite 800\nDated: May 18, 2001\nSeattle, Washington 98121\nDated:\nMay\n> 2001\n-6-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\nExhibit 1\nEmployee's Prior Inventions\nInventions not covered in this agreement relate to issued patents on aerosolized pentamidine, formulation patents on aminoglycosides for inhalation,\nColistin for inhalation, treatment of tuberculosis with tobramycin. US patent numbers are 6,083,922 and 5,767,068 and 5,508,269. Foreign filings are\nalso issued or active.\nIn addition, I have filed an application in the use of tobramycin for treatment of bronchiectasis at PathoGenesis corporation which is pending\n-7- EX-10.22 21 dex1022.htm EMPLOYEE CONFIDENTIALITY, INVENTIONS, AND NON-COMPETITION\nAGREEMENT\nExhibit 10.22\nEmployee Confidentiality, Inventions and Non-Competition Agreement\nEMPLOYEE CONFIDENTIALITY, INVENTIONS, AND NON-COMPETITION\nAGREEMENT\nThis Agreement is made and entered into as of May\n, 2001, by and between Corus Pharma, Inc., a Delaware corporation (“Company”)\nand A. Bruce Montgomery, M.D . (“Employee”).\nRECITALS\nWHEREAS, the Company and Employee have entered into a letter agreement dated as of January 26, 2001, (the “Letter Agreement”) pursuant\nto which Employee has assigned to the Company all rights then or thereafter owned in connection with the Invention (as described in the Letter\nAgreement),\nWHEREAS, the Company and Employee wish to memorialize certain obligations of Employee in connection with maintaining confidentiality\nof the Company’s information, and\nWHEREAS, the Company and the Employee wish to memorialize the understanding between the parties that Employee shall assign any future\ninventions made while an employee of the Company.\nAs a condition of Employee’s ongoing employment, and the special training and knowledge that Employee will acquire through his\nemployment with the Company, and of the covenants and conditions contained herein, the parties agree as follows:\n1. Confidential Information.\n1.1 Company Secrets. During and after Employee’s employment with Company, Employee will protect and hold in strictest confidence all\nConfidential Information of Company and its affiliates and business relations. Confidential Information includes, without limitation, Inventions (as\ndefined below), trade secrets, plans, programs, source and object codes, specifications, drawings, diagrams, schematics, formulae, product designs\nand concepts, reports, studies, technical know-how, methods, customer and supplier lists, customer requirements, price lists and policies, budgets,\nprojections, bids, costs, financial reports and information, financing materials, training programs and manuals, and sales and marketing programs,\nmaterials, plans, and strategies. Employee will not disclose, use, copy, publish, summarize or remove from Company’s premises any material\ncontaining or disclosing any portion of the Confidential Information, except as necessary to carry out Employee’s assigned responsibilities as a\nCompany employee. Upon termination of Employee’s employment or the earlier request of the Company, all material containing or disclosing any\nportion of the Confidential Information shall be returned to Company.\n1.2 Third Party Information. During and after Employee’s employment with Company, Employee will not (a) use any confidential and proprietary\ninformation of Company’s customers, vendors, consultants and other parties with whom Company does business (“Third Party Information”) or (b)\ndisclose any Third Party Information to anyone other than Company personnel who need to know the same in connection with their work for\nCompany, without the prior written authorization of an officer of Company. Employee will not bring onto Company’s\nEmployee Confidentiality, Inventions and Non-Competition Agreement\npremises or disclose to Company any unpublished documents or any other property, written or unwritten, of any former employer, which is known\nby Employee to be subject to a covenant of confidentiality, without the prior written consent of such former employer.\n2. Inventions.\n2.1 Assignment. Subject to Section 2.3 below, all ownership and other rights in all works, programs, know-how, techniques, formulas, data, manuals,\ninventions, ideas, designs, manuals, improvements, discoveries, processes and other works of authorship (“Inventions”) developed, conceived or\nreduced to practice by Employee, whether alone or with others, during the term of his/her employment by Company, shall be the exclusive property\nof Company and, to the extent permitted by law, shall be “works for hire” and, in the case of Inventions that relate directly or indirectly to the\nbusiness of the Company, whether or not developed or conceived during regular working hours or at the Company’s facilities. Employee hereby\nirrevocably agrees, subject to Section 2.3 below, to and does hereby sell, assign and transfer to Company or Company’s designee Employee’s entire\nright, title and interest, including moral rights, in and to the Inventions developed, conceived or reduced to practice by Employee during the term of\nhis employment by Company, and any improvements thereon. Employee will assist Company as reasonably requested, at Company’s expense but\nwithout additional compensation to Employee, during and after the term of his employment to obtain, perfect, sustain and enforce, Company’s rights\nin and ownership of the Inventions covered hereby, including without limitation, the execution of additional instruments of conveyance and assisting\nCompany with applications for patents or copyright or other registrations. If Company, after reasonable efforts, is unable to obtain Employee’s\nsignature to any such instruments (without regard to whether or not Employee is at that time employed by Company), Employee hereby irrevocably\ndesignates and appoints Company as Employee’s agent and attorney-in-fact, which appointment includes an interest, for and in Employee’s behalf to\nexecute, verify and file any such instruments and such other lawfully permits acts to further the purposes of this Section 2.1 with the same legal force\nand effect as if executed by Employee.\n2.2 Information on Inventions. During Employee’s employment by Company and for six months after termination of such employment for any\nreason, Employee will promptly disclose to Company in writing all Inventions developed, conceived or reduced to practice by Employee, whether\nalone or jointly. To the extent disclosure of such Inventions violates any obligations of confidentiality to a third party, Employee will promptly\ndisclose a brief description of such Inventions, a list of the parties to whom the Inventions belong and the reason full disclosure is prohibited.\n2.3 Washington Notice Provision. In accordance with Section 49.44.140 of the Revised Code of Washington, this Agreement (other than Section\n2.4) does not apply to, and Employee has no obligation to assign or offer to assign to Company, any Invention for which no trade secrets or other\nintellectual property of Company were used and no equipment, supplies, or facilities of Company were used and which was developed entirely on\nEmployee’s own time, unless: (i) the Invention relates directly to the business of Company, (ii) the Invention relates to actual or demonstrably\nanticipated research or development work of Company, or (iii) the Invention results from any work performed by Employee for Company, in which\ncases this Agreement shall apply.\n-2-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\n2.4 Prior Inventions. Any Inventions which Employee alone or jointly developed, conceived or reduced to practice or caused to be developed,\nconceived or reduced to practice prior to employment by Company which Employee wishes to exclude from the scope of this Agreement are set\nforth in Exhibit 1 attached hereto (“Prior Inventions”). To the extent disclosure of any such Prior Inventions violates any prior obligations of\nconfidentiality to a third party, Exhibit 1 must include a brief description of such Prior Invention, a list of the parties to whom such Prior Inventions\nbelong and the reason full disclosure is prohibited. To the extent that no Prior Inventions are set forth in Exhibit 1, Employee represents that no such\nPrior Inventions exist. Notwithstanding the foregoing, if Employee incorporates, in the course of his employment by Company, any Prior Inventions\ninto a product, process, service or machine of Company, Employee hereby grants Company a nonexclusive, royalty-free, perpetual, irrevocable,\nworldwide license (with right to sublicense) to make, have made, use, sell, copy, distribute, modify, and otherwise to practice and exploit such Prior\nInventions.\n3. Non-competition and Non-solicitation.\n3.1 Employee agrees that during Employee’s employment by Company and for twelve (12) months after termination of such employment for any\nreason (the “Noncompete Period”), Employee will not in any capacity (including without limitation, as an employee, officer, agent, director,\nconsultant, owner, shareholder, partner, member or joint venture) directly or indirectly, whether or not for compensation, engage in or assist others to\nengage in any business that is, or is preparing to be, in competition with any business in the field of drug development involving any clinical\nindication that, as of the date of termination of Employee’s employment, the Company has a drug candidate in preclinical or clinical studies;\nprovided, however, that nothing herein shall prevent the purchase or ownership by Employee of shares which constitute less than one percent of the\noutstanding equity securities of a publicly-held company. Notwithstanding the foregoing, the Noncompete Period shall be extended from twelve (12)\nto twenty-four (24) months if, upon termination of Employee’s employment the Company pays Employee an amount, in addition to any post-\nemployment compensation Employee is then entitled to receive, at least equal to the product obtained by multiplying 12 by Employee’s then base\nmonthly compensation.\n3.2 Employee further agrees that during his/her employment and the Noncompete Period, Employee will not for any competitive reason call on,\nreveal the name of, or otherwise solicit, accept business from or attempt to entice away from Company any actual or identified potential customer of\nCompany, nor will he assist others in doing so. Employee agrees that he will not, during the Noncompete Period, encourage or solicit or assist others\nto encourage or solicit any other employee or consultant of Company to leave such employment for any reason.\n3.3 Employee acknowledges that the covenants in Sections 3.1, and 3.2 are reasonable in relation to the business in which Company is engaged, the\nposition Employee has been afforded with Company, and Employee’s existing and to be acquired knowledge of Company’s business, and that\ncompliance with such covenants will not prevent him/her from pursuing his/her livelihood. However, should any court of competent jurisdiction find\nthat any provision of such covenants is unreasonable, whether in period of time, geographical area, or otherwise, then in that event the parties agree\nthat such covenants shall be interpreted and enforced to the maximum extent which the court deems reasonable.\n-3-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\n4. Remedies. Employee acknowledges that the harm to Company from any breach of Employee’s obligations under or related to this Agreement may\nbe difficult to determine and may be wholly or partially irreparable, and such obligations may be enforced by injunctive relief and other available\nremedies at law or in equity. The parties further agree that Company shall not be required to post any bond in connection with enforcement of\nEmployer’s obligations hereunder (unless required by law or court rule, in which case the bond shall be $5,000), and that Company in its sole\ndiscretion shall be entitled to inform third parties of the existence of this Agreement and of Employee’s obligations hereunder. Any amounts received\nby Employee or by any other party through Employee in breach of this Agreement shall be held in trust for the benefit of Company. In the event\nEmployee breaches Section 3.1 or 3.2, the Noncompete Period shall be extended by the period of time during which Employee is in breach of\nSection 3.1 or 3.2, as the case may be. No term hereof shall be construed to limit or supersede any other right or remedy of Company under\napplicable law with respect to the protection of trade secrets or otherwise.\n5. No Conflicting Agreements. Employee represents that Employee (a) has no conflicting obligations to assign any Invention and (b) has no other\nemployment, consulting or undertakings which would restrict or impair Employee’s performance of this Agreement. Employee warrants that any and\nall items, technology, and Inventions of any nature developed or provided by Employee under this Agreement will be original to Employee and will\nnot, as provided to Company or when used and exploited by Company and its contractors and customers and their respective successors and assigns,\ninfringe in any respect the rights or property of Employee or any third party. Employee will indemnify Company for all losses, claims, and expenses\n(including reasonable attorneys’ fees) arising from any breach of Employee’s warranties.\n6. At Will Employment. Unless and to the extent otherwise agreed by Company and Employee in a separate written employment agreement,\nEmployee’s employment is and will be “at will.” This means either party can end the employment relationship at any time for any reason. No term of\nany employment agreement between Company and Employee shall be construed to conflict with or lessen Employee’s obligations under this\nAgreement.\n7. Miscellaneous.\n7.1 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the respective successors, assigns, heirs, representatives,\nexecutors and administrators of the parties. The phrase “an officer of Company” as used herein shall refer to an officer of Company other than\nEmployee. No waiver of or forbearance to enforce any right or provision hereof shall be binding unless in writing and signed by the party to be\nbound, and no such waiver or forbearance in any instance shall apply to any other instance or to any other right or provision.\n7.2 Governing Law; Venue. This Agreement will be governed by the laws of the State of Washington without regard to its conflicts of laws rules.\nThe parties hereby agree that the exclusive venue for all matters and actions arising under this Agreement shall be and remain in the state and federal\ncourts sitting in King County, Washington, and the parties hereby consent to the personal jurisdiction of such courts. The prevailing party shall be\nentitled to reasonable attorneys’ fees and costs incurred in connection with any such litigation arising under or related to this Agreement.\n-4-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\n7.3 Assignment. This Agreement is personal to Employee and shall not be assignable by Employee. All the terms and provisions of this Agreement\nshall be binding on and shall inure to the benefit of and be enforceable by the parties and their respective heirs, successors and permitted assigns.\n7.4 Waivers. No delay or failure by any party to this Agreement in exercising, protecting or enforcing any of its rights, titles, interests or remedies\nhereunder, and no course of dealing or performance with respect thereto, shall constitute a waiver. The express waiver by a party of any right, title,\ninterest or remedy in a particular instance or circumstance shall not constitute a waiver in any other instance or circumstance. All rights and remedies\nshall be cumulative and not exclusive of any other rights or remedies.\n7.5 Amendments In Writing. No amendment, modification, waiver, termination or discharge of any provision of this Employment Agreement, nor\nconsent to any departure from any provision of this Agreement by either party, shall in any event be effective unless the same shall be in writing,\nspecifically identifying this Agreement and the provision intended to be amended, modified, waived, terminated or discharged and signed by the\nCompany and Employee, and each such amendment, modification, waiver, termination or discharge shall be effective only in the specific instance\nand for the specific purpose for which given. No provision of this Agreement shall be varied, contradicted or explained by any oral agreement,\ncourse of dealing or performance or any other matter not set forth in an agreement in writing and signed by the Company and Employee.\n7.6 Headings. All headings used in this Agreement are for convenience only and shall not in any way affect the construction of, or be taken into\nconsideration in interpreting, this Agreement.\n7.7 Counterparts. This Agreement, and any amendment or modification entered into pursuant to Section 7.5, may be executed in any number of\ncounterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken\ntogether, shall constitute one and the same instrument.\n7.8 Entire Agreement; Severability. This Agreement represents the entire agreement between Company and Employee concerning the subject matter\nhereof and supersedes all prior agreements, correspondence and understandings, whether oral or written, with respect to that subject matter. If any\nprovision of this Agreement is held to be invalid or unenforceable to any extent in any context, it shall nevertheless be enforced to the fullest extent\nallowed by law in that and other contexts, and the validity and force of the remainder of this Agreement shall not be affected thereby.\n-5-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\nBY SIGNING BELOW, EMPLOYEE ACKNOWLEDGES THAT HE HAS READ THIS AGREEMENT IN ITS ENTIRETY AND\nUNDERSTANDS IT, INCLUDING THE EMPLOYMENT AT WILL PROVISION OF SECTION 6, WHICH INDICATES THAT EMPLOYEE\nHAS NO CONTRACT OR PROMISE OF ONGOING EMPLOYMENT. EMPLOYEE FURTHER ACKNOWLEDGES THAT HE HAS HAD THE\nOPPORTUNITY TO CONSULT WITH COUNSEL WITH RESPECT TO THIS AGREEMENT.\nCORUS PHARMA, INC.\nA. BRUCE MONTGOMERY, M.D .\nBy: /s/ Jonathan P. Mow\n/s/ A. Bruce Montgomery, M.D .\nJonathan P. Mow, Vice President\nAddress:\n2025 First Avenue, Suite 800\nDated: May 18, 2001\nSeattle, Washington 98121\nDated:\nMay\n, 2001\n-6-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\nExhibit 1\nEmployee’s Prior Inventions\nInventions not covered in this agreement relate to issued patents on aerosolized pentamidine, formulation patents on aminoglycosides for inhalation,\nColistin for inhalation, treatment of tuberculosis with tobramycin. US patent numbers are 6,083,922 and 5,767,068 and 5,508,269. Foreign filings are\nalso issued or active.\nIn addition, I have filed an application in the use of tobramycin for treatment of bronchiectasis at PathoGenesis corporation which is pending.\n-7- 8f4e33c10c29ec53b61ad117fa212618.pdf effective_date jurisdiction party term EX-10.4 10 dex104.htm NON-COMPETITION AGREEMENT\nExhibit 10.4\nNON-SOLICITATION, NON-COMPETITION,\nNON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nIn consideration of my employment or continued employment by Omni National Bank (“Company”) and in further consideration of a payment\nin the amount of Seventy Five Thousand ($75,000.00) Dollars, the receipt and sufficiency of which are hereby acknowledged, I, Jeffrey L. Levine,\nS.S . # (Intentionally Omitted), who resides at (Intentionally Omitted), (“Employee”) agree to the following:\nA. Non-Solicitation: Customers\nDuring my employment and for one (1) year immediately following the cessation of my employment with the Company for any reason, I shall\nnot, on my own behalf or on behalf of any person, firm, partnership, association, corporation or business organization, entity or enterprise (except\nCompany), solicit any customer of the Company, or any representative of any customer of the Company, with a view to selling or providing any\nproduct, equipment or service competitive with any product, equipment or service of the Company Business, as defined herein, during the twelve\n(12) month period immediately preceding cessation of my employment with the Company, provided that the restrictions set forth in this section shall\napply only to customers of the Company, or representatives of customers of the Company, with whom I had material contact during such twelve\n(12) month period. “Material contact” exists between myself and each of the Company’s existing customers: (i) with whom I actually dealt for a\nbusiness purpose while employed by the Company or to further a business relationship between the customer and the Company; or (ii) whose\nbusiness dealings with the Company were handled, coordinated or supervised by me.\nB. Non-Solicitation: Employees or Sales Representatives\nDuring my employment and for one (1) year immediately following the cessation of my employment with the Company for any reason, I will\nnot solicit or in any manner encourage employees of the Company to leave the employ of the Company. The foregoing prohibition applies only to\nemployees with whom I had material contact pursuant to my duties during the twelve (12) month period immediately preceding cessation of my\nemployment with the Company. “Material contact” means interaction between myself and another employee of the Company: (i) with whom I\nactually dealt; or (ii) whose employment or dealings with the Company or services for the Company were handled, coordinated or supervised by me.\nC. Non-competition. I acknowledge that my specialized skills, abilities and contacts are important to the success of the Company, and agree that I\nshall faithfully and strictly adhere to the terms hereof. I acknowledge that by reason of the character and nature of the Company’s business activities\nand operations, and further by reason of the scope of the territory in which I perform and will perform the Services (as defined below), in order to\nprotect the Company’s legitimate business interests it is necessary for me to agree not to engage in certain specified activities in such territory at any\ntime during my employment and for a period of time thereafter. Therefore, at all times during my employment with the Company, and for a period of\ntwo (2) years thereafter, I will not, directly or indirectly, within the Territory (as defined below), (a) for myself, (b) as a consultant, manager,\nsupervisor, employee or owner of a Competing Business\n(as defined below), or (c) as an independent contractor for a Competing Business, engage in any business in which I provide services which are the\nsame as or substantially similar to the Services. “Competing Business” shall mean any person, business or entity who or which sells, markets or\ndistributes products and/or sells, furnishes or provides services substantially the same as those sold, marketed, distributed, furnished or supplied by\nthe Company during the term of my employment with the Company. “Territory” shall mean the geographic area encompassed within a sixty\n(60) mile radius of the Company’s office at 1100 Abernathy Road, Atlanta, Georgia. I agree that the Company and I may amend the definition of\n“Territory” from and after the date hereof to reflect any significant contraction or expansion of the geographical area in which I actually perform the\nServices. “Services” shall mean the manager of the operations department for warehouse lending.\nD. Non-Disclosure\n1. TRADE SECRETS . I acknowledge that the Company is engaged in the business (“Company Business”) of Commercial and Retail Banking,\nand the Employee will be employed in a specialized area commonly referred to as: “redevelopment lending”. Redevelopment lending can be further\ndescribed as lending money to borrower who acquire dilapidated, inner-city single and multi-family homes, who after acquisition, re-habilitate those\nstructures for occupancy and/or sale. I acknowledge that this highly specialized area of lending is unique and to my knowledge there are no other\nbanks conducting this business in the geographical area as set forth above. I further acknowledge that prior to joining the Company, I was not\nemployed in this line of business. I further acknowledge that in order to conduct its business, the Company owns and uses trade secrets as defined\nunder applicable law (O.C.G.A. § 10-1 -761(4)). “Trade secret(s)” means information, without regard to form, including, but not limited to, technical\nor non-technical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial\nplans, product plans, or a list of actual or potential customers or suppliers which is not commonly known by or available to the public and which\ninformation: (a) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means\nby, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the\ncircumstances to maintain its secrecy. I further acknowledge that in the course of my employment with the Company and in order to carry out my\nduties thereunder, I have or will become privy to the Trade Secrets of the Company. Accordingly, I shall not disclose, divulge, publish to others, or\nuse for any purpose, except as necessary to perform my duties while employed by the Company, any Trade Secret of the Company without the prior\nwritten consent of the Company for so long as such information shall remain a Trade Secret.\n2. CONFIDENTIAL INFORMATION. I acknowledge that in order to conduct its business, the Company owns and uses written and unwritten\nconfidential information. “Confidential Information” means data and information relating to the business of the Company (which may not rise to the\nlevel of a Trade Secret under applicable law) which is or has been disclosed to me or of which I became aware as a consequence of or through my\nrelationship with the Company and which has value to the Company and is not generally known to its competitors. Confidential Information shall\nnot include any data or information that has been voluntarily disclosed to the public by the Company (except where such public disclosure has been\nmade by me without authorization) or that has been independently developed and disclosed by others, or\nthat otherwise enters the public domain through lawful means. I further acknowledge that in the course of my employment with the Company and in\norder to carry out my duties thereunder, I have or will become privy to Confidential Information of the Company. Accordingly, I agree that while\nemployed by the Company, and for a period of two (2) years from the conclusion of my employment with the Company for any reason, I will not\ndisclose, divulge, publish to others or use for any purpose any Confidential Information of the Company except to the extent necessary to perform\nmy duties and responsibilities as an Employee for the Company, without the prior written consent of the Company.\n3. NOTICE OF TRADE SECRETS AND CONFIDENTIAL INFORMATION . I acknowledge that the Company hereby designates Trade\nSecrets and Confidential Information to include, without limitation, confidential customer and prospective customer lists; information provided to\nthe Company by its customers or clients or prospective customers or clients; customer preferences; client contacts; marketing plans, presentations\nand strategies; inventions, patents and discoveries reasonably related to the Company’s business or products and services of the Company that have\nnot previously been publicly released by the Company, “software,” computer or electronic data disks or tapes, “processes,” “designs,” “research,”\ncomputer programs; source code; object code; methods of operations and costs data; internal policies and procedures; contracts; personnel\ninformation; credit terms; financial information (including without limitation information regarding fee and pricing structures, assets, status of client\naccounts or credit); or any other information designated as a trade secret, confidential or proprietary by the Company.\n4. TREATMENT OF TRADE SECRETS AND CONFIDENTIAL INFORMATION . I understand and agree to treat whatever information the\nCompany wants to protect from disclosure as genuinely “confidential”, i.e., restricting access by pass code, stamping hardcopies of customer lists\n“confidential”, and restricting access to the customer list except by personnel, and the like. I further agree, as an Employee, to use my best efforts\nand the utmost diligence to guard and protect the Company’s Trade Secrets and Confidential Information from disclosure to any competitor,\ncustomer or supplier of the Company or any other person, firm, corporation or other entity, unless such disclosure has been specifically authorized\nby the Company in writing.\nE. Ownership of Work Product. For purposes of this Agreement, “Work Product” shall mean the data, materials, documentation, computer programs,\nsource code, object code, inventions (whether or not patentable), and all works of authorship, including all worldwide rights therein under patent,\ncopyright, trade secret, confidential information, and other property rights, created or developed in whole or in part by me, whether prior to the date\nof this Agreement or in the future, either (i) while employed by the Company and that have been or will be paid for by the Company, or (ii) while\nemployed by the Company (whether developed during working hours or not) and not otherwise the subject of a written agreement between the\nCompany and me. All Work Product shall be considered work made for hire by me and owned by the Company; provided, however, that I shall be\nentitled to retain all rights in work performed outside of my normal work hours so long as I have not used any confidential information, trade secrets\nor other assets of the Company to perform such work. If any of the Work Product may not, by operation of law, be considered work made for hire by\nme for the Company, or if ownership of all rights, title, and interest of the intellectual property rights therein shall not\notherwise vest exclusively in the Company, I hereby assign to the Company, and upon the future creation thereof automatically assign to the\nCompany without further consideration, the ownership of all Work Product. The Company shall have the right to obtain and hold in its own name\npatents, copyrights, registrations and any other protection available in the Work Product. I agree to perform, during and after my employment, such\nfurther acts as may be necessary or desirable to transfer, perfect, and defend the Company’s ownership of the Work Product as reasonably requested\nby the Company.\nF. Return of Company Property. All Company property, including, but not limited to, equipment, devices, records, correspondence, documents, files,\nreports, studies, manuals, compilations, drawings, blueprints, sketches, videos, memoranda, computer software and programs, data or any other\ninformation, including Trade Secrets and Confidential Information as set forth herein, (whether originals, copies or extracts), whether prepared or\ndeveloped by me or otherwise coming into my possession, whether maintained by me in the facilities of the Company, at my home, or at any other\nlocation, is, and shall remain, the exclusive property of the Company and shall be promptly delivered to the Company, with no copies or\nreproductions retained by me, in the event of my termination for any reason, or at any other time or times the Company may request. Upon\ntermination of employment for any reason, I agree to sign and deliver the “Termination Certification” attached hereto as Exhibit “A”.\nG. Reasonable Restrictions. I agree and acknowledge that the restrictions contained in this Agreement are reasonable and necessary in order to\nprotect the valuable propriety assets, goodwill and business of the Company and that the restrictions will not prevent or unreasonably restrict my\nability to earn a livelihood. I also agree and acknowledge that if my employment with the Company ends for any reason, I will be able to earn a\nlivelihood without violating the restrictions contained in this Agreement and that my ability to earn a livelihood without violating said restrictions is\nan important reason in my choosing to sign this Agreement. Notwithstanding anything herein to the contrary, if for any reason the Employee is\nterminated before the expiration of six (6) months from the date of employment, then and in that event the provisions of subparagraph C above shall\nbe null and void and of no effect, and further provided, that all other terms and conditions shall be fully enforceable.\nH. At-Will Employment. I acknowledge that nothing contained herein is intended to constitute a contract of continued employment, but instead I\nrecognize and acknowledge that my employment with the Company is on an “at-will” basis and may be terminated by either myself or the Company\nat any time, for any reason or for no reason, with or without cause, and with or without notice.\nBy signing this Agreement, I indicate that I have read, accepted and agreed to its terms.\nIN WITNESS WHEREOF, I have executed this Agreement under seal on the date shown below.\nEMPLOYEE\nJeffrey L. Levine,\nS.S . # (Intentionally Omitted)\n(Home address intentionally omitted)\nSignature\n/s/ Jeffrey L. Levine\n(SEAL)\nJeffrey L. Levine\nDate: February 16, 2005\nEXHIBIT A\nTERMINATION CERTIFICATION\nThe undersigned Employee certifies that he/she does not possess and has not failed to return any property belonging to Omni National Bank,\nits parent, subsidiaries, affiliates, successors or assigns (together, the “Company”), including, but not limited to, equipment, devices, records,\ncorrespondence, documents, files, reports, studies, manuals, compilations, drawings, blueprints, sketches, videos, memoranda, computer software\nand programs, data or any other information, including Trade Secrets and Confidential Information as set forth herein, (whether originals, copies or\nextracts), whether prepared or developed by Employee or otherwise coming into Employee’s possession, whether maintained by Employee in the\nfacilities of the Company, at Employee’s home, or at any other location.\nEmployee further certifies that he/she will comply with all the terms of his/her Non- Solicitation, Non-Competition, Non-Disclosure and\nConfidentiality Agreement.\nDate:\nEmployee EX-10.4 10 dex104.htm NON-COMPETITION AGREEMENT\nExhibit 10.4\nNON-SOLICITATION, NON-COMPETITION,\nNON-DISCI.OSURE AND CONFIDENTIALITY AGREEMENT\nIn consideration of my employment or continued employment by Omni National Bank (“Company”) and in further consideration of a payment\nin the amount of Seventy Five Thousand ($75,000.00) Dollars, the receipt and sufficiency of which are hereby acknowledged, I, Jeffrey L. Levine,\nS.S. # (Intentionally Omitted), who resides at (Intentionally Omitted), (“Employee”) agree to the following:\nA. Non-Solicitation: Customers\nDuring my employment and for one (1) year immediately following the cessation of my employment with the Company for any reason, I shall\nnot, on my own behalf or on behalf of any person, firm, partnership, association, corporation or business organization, entity or enterprise (except\nCompany), solicit any customer of the Company, or any representative of any customer of the Company, with a view to selling or providing any\nproduct, equipment or service competitive with any product, equipment or service of the Company Business, as defined herein, during the twelve\n(12) month period immediately preceding cessation of my employment with the Company, provided that the restrictions set forth in this section shall\napply only to customers of the Company, or representatives of customers of the Company, with whom I had material contact during such twelve\n(12) month period. “Material contact” exists between myself and each of the Company’s existing customers: (i) with whom I actually dealt for a\nbusiness purpose while employed by the Company or to further a business relationship between the customer and the Company; or (ii) whose\nbusiness dealings with the Company were handled, coordinated or supervised by me.\nB. Non-Solicitation: Employees or Sales Representatives\nDuring my employment and for one (1) year immediately following the cessation of my employment with the Company for any reason, I will\nnot solicit or in any manner encourage employees of the Company to leave the employ of the Company. The foregoing prohibition applies only to\nemployees with whom I had material contact pursuant to my duties during the twelve (12) month period immediately preceding cessation of my\nemployment with the Company. “Material contact” means interaction between myself and another employee of the Company: (i) with whom I\nactually dealt; or (ii) whose employment or dealings with the Company or services for the Company were handled, coordinated or supervised by me.\nC. Non-competition. I acknowledge that my specialized skills, abilities and contacts are important to the success of the Company, and agree that I\nshall faithfully and strictly adhere to the terms hereof. I acknowledge that by reason of the character and nature of the Company’s business activities\nand operations, and further by reason of the scope of the territory in which I perform and will perform the Services (as defined below), in order to\nprotect the Company’s legitimate business interests it is necessary for me to agree not to engage in certain specified activities in such territory at any\ntime during my employment and for a period of time thereafter. Therefore, at all times during my employment with the Company, and for a period of\ntwo (2) years thereafter, I will not, directly or indirectly, within the Territory (as defined below), (a) for myself, (b) as a consultant, manager,\nsupervisor, employee or owner of a Competing Business\n \n(as defined below), or (c) as an independent contractor for a Competing Business, engage in any business in which I provide services which are the\nsame as or substantially similar to the Services. “Competing Business” shall mean any person, business or entity who or which sells, markets or\ndistributes products and/or sells, furnishes or provides services substantially the same as those sold, marketed, distributed, furnished or supplied by\nthe Company during the term of my employment with the Company. “Territory” shall mean the geographic area encompassed within a sixty\n(60) mile radius of the Company’s office at 1100 Abernathy Road, Atlanta, Georgia. I agree that the Company and I may amend the definition of\n“Territory” from and after the date hereof to reflect any significant contraction or expansion of the geographical area in which I actually perform the\nServices. “Services” shall mean the manager of the operations department for warehouse lending.\nD. Non-Disclosure\n1. TRADE SECRETS. I acknowledge that the Company is engaged in the business (“Company Business”) of Commercial and Retail Banking,\nand the Employee will be employed in a specialized area commonly referred to as: “redevelopment lending”. Redevelopment lending can be further\ndescribed as lending money to borrower who acquire dilapidated, inner-city single and multi-family homes, who after acquisition, re-habilitate those\nstructures for occupancy and/or sale. I acknowledge that this highly specialized area of lending is unique and to my knowledge there are no other\nbanks conducting this business in the geographical area as set forth above. I further acknowledge that prior to joining the Company, I was not\nemployed in this line of business. I further acknowledge that in order to conduct its business, the Company owns and uses trade secrets as defined\nunder applicable law (O.C.G.A. § 10-1-761(4)). “Trade secret(s)” means information, without regard to form, including, but not limited to, technical\nor non-technical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial\nplans, product plans, or a list of actual or potential customers or suppliers which is not commonly known by or available to the public and which\ninformation: (a) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means\nby, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the\ncircumstances to maintain its secrecy. I further acknowledge that in the course of my employment with the Company and in order to carry out my\nduties thereunder, I have or will become privy to the Trade Secrets of the Company. Accordingly, I shall not disclose, divulge, publish to others, or\nuse for any purpose, except as necessary to perform my duties while employed by the Company, any Trade Secret of the Company without the prior\nwritten consent of the Company for so long as such information shall remain a Trade Secret.\n2. CONFIDENTIAL INFORMATION. I acknowledge that in order to conduct its business, the Company owns and uses written and unwritten\nconfidential information. “Confidential Information” means data and information relating to the business of the Company (which may not rise to the\nlevel of a Trade Secret under applicable law) which is or has been disclosed to me or of which I became aware as a consequence of or through my\nrelationship with the Company and which has value to the Company and is not generally known to its competitors. Confidential Information shall\nnot include any data or information that has been voluntarily disclosed to the public by the Company (except where such public disclosure has been\nmade by me without authorization) or that has been independently developed and disclosed by others, or\nthat otherwise enters the public domain through lawful means. I further acknowledge that in the course of my employment with the Company and in\norder to carry out my duties thereunder, I have or will become privy to Confidential Information of the Company. Accordingly, I agree that while\nemployed by the Company, and for a period of two (2) years from the conclusion of my employment with the Company for any reason, I will not\ndisclose, divulge, publish to others or use for any purpose any Confidential Information of the Company except to the extent necessary to perform\nmy duties and responsibilities as an Employee for the Company, without the prior written consent of the Company.\n3. NOTICE OF TRADE SECRETS AND CONFIDENTIAL INFORMATION. I acknowledge that the Company hereby designates Trade\nSecrets and Confidential Information to include, without limitation, confidential customer and prospective customer lists; information provided to\nthe Company by its customers or clients or prospective customers or clients; customer preferences; client contacts; marketing plans, presentations\nand strategies; inventions, patents and discoveries reasonably related to the Company’s business or products and services of the Company that have\nnot previously been publicly released by the Company, “software,” computer or electronic data disks or tapes, “processes,” “designs,” “research,”\ncomputer programs; source code; object code; methods of operations and costs data; internal policies and procedures; contracts; personnel\ninformation; credit terms; financial information (including without limitation information regarding fee and pricing structures, assets, status of client\naccounts or credit); or any other information designated as a trade secret, confidential or proprietary by the Company.\n4. TREATMENT OF TRADE SECRETS AND CONFIDENTIAL INFORMATION. I understand and agree to treat whatever information the\nCompany wants to protect from disclosure as genuinely “confidential”, i.e., restricting access by pass code, stamping hardcopies of customer lists\n“confidential”, and restricting access to the customer list except by personnel, and the like. I further agree, as an Employee, to use my best efforts\nand the utmost diligence to guard and protect the Company’s Trade Secrets and Confidential Information from disclosure to any competitor,\ncustomer or supplier of the Company or any other person, firm, corporation or other entity, unless such disclosure has been specifically authorized\nby the Company in writing.\nE. Ownership of Work Product. For purposes of this Agreement, “Work Product” shall mean the data, materials, documentation, computer programs,\nsource code, object code, inventions (whether or not patentable), and all works of authorship, including all worldwide rights therein under patent,\ncopyright, trade secret, confidential information, and other property rights, created or developed in whole or in part by me, whether prior to the date\nof this Agreement or in the future, either (i) while employed by the Company and that have been or will be paid for by the Company, or (ii) while\nemployed by the Company (whether developed during working hours or not) and not otherwise the subject of a written agreement between the\nCompany and me. All Work Product shall be considered work made for hire by me and owned by the Company; provided, however, that I shall be\nentitled to retain all rights in work performed outside of my normal work hours so long as I have not used any confidential information, trade secrets\nor other assets of the Company to perform such work. If any of the Work Product may not, by operation of law, be considered work made for hire by\nme for the Company, or if ownership of all rights, title, and interest of the intellectual property rights therein shall not\notherwise vest exclusively in the Company, I hereby assign to the Company, and upon the future creation thereof automatically assign to the\nCompany without further consideration, the ownership of all Work Product. The Company shall have the right to obtain and hold in its own name\npatents, copyrights, registrations and any other protection available in the Work Product. I agree to perform, during and after my employment, such\nfurther acts as may be necessary or desirable to transfer, perfect, and defend the Company’s ownership of the Work Product as reasonably requested\nby the Company.\nreports, studies, manuals, compilations, drawings, blueprints, sketches, videos, memoranda, computer software and programs, data or any other\ninformation, including Trade Secrets and Confidential Information as set forth herein, (whether originals, copies or extracts), whether prepared or\ndeveloped by me or otherwise coming into my possession, whether maintained by me in the facilities of the Company, at my home, or at any other\nlocation, is, and shall remain, the exclusive property of the Company and shall be promptly delivered to the Company, with no copies or\nreproductions retained by me, in the event of my termination for any reason, or at any other time or times the Company may request. Upon\ntermination of employment for any reason, I agree to sign and deliver the “Termination Certification” attached hereto as Exhibit “A”.\nG. Reasonable Restrictions. I agree and acknowledge that the restrictions contained in this Agreement are reasonable and necessary in order to\nprotect the valuable propriety assets, goodwill and business of the Company and that the restrictions will not prevent or unreasonably restrict my\nability to earn a livelihood. I also agree and acknowledge that if my employment with the Company ends for any reason, I will be able to earn a\nlivelihood without violating the restrictions contained in this Agreement and that my ability to earn a livelihood without violating said restrictions is\nan important reason in my choosing to sign this Agreement. Notwithstanding anything herein to the contrary, if for any reason the Employee is\nterminated before the expiration of six (6) months from the date of employment, then and in that event the provisions of subparagraph C above shall\nbe null and void and of no effect, and further provided, that all other terms and conditions shall be fully enforceable.\nH. At-Will Employment. I acknowledge that nothing contained herein is intended to constitute a contract of continued employment, but instead I\nrecognize and acknowledge that my employment with the Company is on an “at-will” basis and may be terminated by either myself or the Company\nat any time, for any reason or for no reason, with or without cause, and with or without notice.\nBy signing this Agreement, I indicate that I have read, accepted and agreed to its terms.\nIN WITNESS WHEREOF, I have executed this Agreement under seal on the date shown below.\nEMPLOYEE\nJeffrey L. Levine,\nS.S. # (Intentionally Omitted)\n(Home address intentionally omitted)\nSignature /s/ Jeffrey L. Levine (SEAL)\nJeffrey L. Levine\nDate: February 16, 2005\nEXHIBIT A\nTERMINATION CERTIFICATION\nThe undersigned Employee certifies that he/she does not possess and has not failed to return any property belonging to Omni National Bank,\nits parent, subsidiaries, affiliates, successors or assigns (together, the “Company”), including, but not limited to, equipment, devices, records,\ncorrespondence, documents, files, reports, studies, manuals, compilations, drawings, blueprints, sketches, videos, memoranda, computer software\nand programs, data or any other information, including Trade Secrets and Confidential Information as set forth herein, (whether originals, copies or\nextracts), whether prepared or developed by Employee or otherwise coming into Employee’s possession, whether maintained by Employee in the\nfacilities of the Company, at Employee’s home, or at any other location.\nEmployee further certifies that he/she will comply with all the terms of his/her Non- Solicitation, Non-Competition, Non-Disclosure and\nConfidentiality Agreement.\nDate:\nEmployee EX-10.4 10 dex104.htm NON-COMPETITION AGREEMENT\nExhibit 10.4\nNON-SOLICITATION, NON-COMPETITION,\nNON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nIn consideration of my employment or continued employment by Omni National Bank ("Company") and in further consideration of a payment\nin the amount of Seventy Five Thousand ($75,000.00) Dollars, the receipt and sufficiency of which are hereby acknowledged, I, Jeffrey L. Levine,\nS.S. # (Intentionally. Omitted), who resides at (Intentionally Omitted), ("Employee") agree to the following:\nA.\nNon-Solicitation: Customers\nDuring my employment and for one (1) year immediately following the cessation of my employment with the Company for any reason, I shall\nnot, on my own behalf or on behalf of any person, firm, partnership, association, corporation or business organization, entity or enterprise (except\nCompany), solicit any customer of the Company, or any representative of any customer of the Company, with a view to selling or providing any\nproduct, equipment or service competitive with any product, equipment or service of the Company Business, as defined herein, during the twelve\n(12) month period immediately preceding cessation of my employment with the Company, provided that the restrictions set forth in this section shall\napply only to customers of the Company, or representatives of customers of the Company, with whom I had material contact during such twelve\n(12) month period. "Material contact" exists between myself and each of the Company's existing customers: (i) with whom I actually dealt for a\nbusiness purpose while employed by the Company or to further a business relationship between the customer and the Company; or (ii) whose\nbusiness dealings with the Company were handled, coordinated or supervised by me.\nB.\nNon-Solicitation: Employees or Sales Representatives\nDuring my employment and for one (1) year immediately following the cessation of my employment with the Company for any reason, I will\nnot solicit or in any manner encourage employees of the Company to leave the employ of the Company. The foregoing prohibition applies only to\nemployees with whom I had material contact pursuant to my duties during the twelve (12) month period immediately preceding cessation of my\nemployment with the Company. "Material contact" means interaction between myself and another employee of the Company: (i) with whom I\nactually dealt; or (ii) whose employment or dealings with the Company or services for the Company were handled, coordinated or supervised by me.\nC. Non-competition. I acknowledge that my specialized skills, abilities and contacts are important to the success of the Company, and agree that\nI\nshall faithfully and strictly adhere to the terms hereof. I acknowledge that by reason of the character and nature of the Company's business activities\nand operations, and further by reason of the scope of the territory in which I perform and will perform the Services (as defined below), in order\nto\nprotect the Company's legitimate business interests it is necessary for me to agree not to engage in certain specified activities in such territory at any\ntime during my employment and for a period of time thereafter. Therefore, at all times during my employment with the Company, and for a period of\ntwo (2) years thereafter, I will not, directly or indirectly, within the Territory (as defined below), (a) for myself, (b) as a consultant, manager,\nsupervisor, employee or owner of a Competing Business\n(as defined below), or (c) as an independent contractor for a Competing Business, engage in any business in which I provide services which are the\nsame as or substantially similar to the Services. "Competing Business" shall mean any person, business or entity who or which sells, markets or\ndistributes products and/or sells, furnishes or provides services substantially the same as those sold, marketed, distributed, furnished or supplied by\nthe Company during the term of my employment with the Company. "Territory" shall mean the geographic area encompassed within a sixty\n(60) mile radius of the Company's office at 1100 Abernathy Road, Atlanta, Georgia. I agree that the Company and I may amend the definition of\n"Territory" from and after the date hereof to reflect any significant contraction or expansion of the geographical area in which I actually perform the\nServices. "Services" shall mean the manager of the operations department for warehouse lending.\nD. Non-Disclosure\n1. TRADE SECRETS. I acknowledge that the Company is engaged in the business ("Company Business") of Commercial and Retail Banking,\nand the Employee will be employed in a specialized area commonly referred to as: "redevelopment lending". Redevelopment lending can be further\ndescribed as lending money to borrower who acquire dilapidated, inner-city single and multi-family homes, who after acquisition, re-habilitate those\nstructures for occupancy and/or sale. I acknowledge that this highly specialized area of lending is unique and to my knowledge there are no other\nbanks conducting this business in the geographical area as set forth above. I further acknowledge that prior to joining the Company, I was not\nemployed in this line of business. I further acknowledge that in order to conduct its business, the Company owns and uses trade secrets as defined\nunder applicable law (O.C.G.A. 8 10-1-761(4)). "Trade secret(s)" means information, without regard to form, including, but not limited to, technical\nor non-technical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial\nplans, product plans, or a list of actual or potential customers or suppliers which is not commonly known by or available to the public and which\ninformation: (a) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means\nby, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the\ncircumstances to maintain its secrecy. I further acknowledge that in the course of my employment with the Company and in order to carry out my\nduties thereunder, I have or will become privy to the Trade Secrets of the Company. Accordingly, I shall not disclose, divulge, publish to others, or\nuse for any purpose, except as necessary to perform my duties while employed by the Company, any Trade Secret of the Company without the prior\nwritten consent of the Company for so long as such information shall remain a Trade Secret.\n2. CONFIDENTIAL INFORMATION. I acknowledge that in order to conduct its business, the Company owns and uses written and unwritten\nconfidential information. "Confidential Information" means data and information relating to the business of the Company (which may not rise to the\nlevel of a Trade Secret under applicable law) which is or has been disclosed to me or of which I became aware as a consequence of or through my\nrelationship with the Company and which has value to the Company and is not generally known to its competitors. Confidential Information shall\nnot include any data or information that has been voluntarily disclosed to the public by the Company (except where such public disclosure has been\nmade by me without authorization) or that has been independently developed and disclosed by others, or\nthat otherwise enters the public domain through lawful means. I further acknowledge that in the course of my employment with the Company and in\norder to carry out my duties thereunder, I have or will become privy to Confidential Information of the Company. Accordingly, I agree that while\nemployed by the Company, and for a period of two (2) years from the conclusion of my employment with the Company for any reason, I will not\ndisclose, divulge, publish to others or use for any purpose any Confidential Information of the Company except to the extent necessary to perform\nmy duties and responsibilities as an Employee for the Company, without the prior written consent of the Company.\n3. NOTICE OF TRADE SECRETS AND CONFIDENTIAL INFORMATION. I acknowledge that the Company hereby designates Trade\nSecrets and Confidential Information to include, without limitation, confidential customer and prospective customer lists; information provided\nto\nthe Company by its customers or clients or prospective customers or clients; customer preferences; client contacts; marketing plans, presentations\nand strategies; inventions, patents and discoveries reasonably related to the Company's business or products and services of the Company that\nhave\nnot previously been publicly released by the Company, "software," computer or electronic data disks or tapes, "processes," "designs," "research,"\ncomputer programs; source code; object code; methods of operations and costs data; internal policies and procedures; contracts; personne\ninformation; credit terms; financial information (including without limitation information regarding fee and pricing structures, assets, status of client\naccounts or credit); or any other information designated as a trade secret, confidential or proprietary by the Company.\n4. TREATMENT OF TRADE SECRETS AND CONFIDENTIAL INFORMATION. I understand and agree to treat whatever information the\nCompany wants to protect from disclosure as genuinely "confidential", i.e., restricting access by pass code, stamping hardcopies of customer lists\n"confidential", and restricting access to the customer list except by personnel, and the like. I further agree, as an Employee, to use my best efforts\nand the utmost diligence to guard and protect the Company's Trade Secrets and Confidential Information from disclosure to any competitor,\ncustomer or supplier of the Company or any other person, firm, corporation or other entity, unless such disclosure has been specifically authorized\nby the Company in writing.\nE. Ownership of Work Product. For purposes of this Agreement, "Work Product" shall mean the data, materials, documentation, computer programs,\nsource code, object code, inventions (whether or not patentable), and all works of authorship, including all worldwide rights therein under patent,\ncopyright, trade secret, confidential information, and other property rights, created or developed in whole or in part by me, whether prior to the date\nof this Agreement or in the future, either (i) while employed by the Company and that have been or will be paid for by the Company, or (ii) while\nemployed by the Company (whether developed during working hours or not) and not otherwise the subject of a written agreement between the\nCompany and me. All Work Product shall be considered work made for hire by me and owned by the Company; provided, however, that I shall be\nentitled to retain all rights in work performed outside of my normal work hours so long as I have not used any confidential information, trade secrets\nor other assets of the Company to perform such work. If any of the Work Product may not, by operation of law, be considered work made for hire by\nme for the Company, or if ownership of all rights, title, and interest of the intellectual property rights therein shall not\notherwise vest exclusively in the Company, I hereby assign to the Company, and upon the future creation thereof automatically assign to the\nCompany without further consideration, the ownership of all Work Product. The Company shall have the right to obtain and hold in its own name\npatents, copyrights, registrations and any other protection available in the Work Product. I agree to perform, during and after my employment, such\nfurther acts as may be necessary or desirable to transfer, perfect, and defend the Company's ownership of the Work Product as reasonably requested\nby the Company.\nF. Return of Company Property.. All Company property, including, but not limited to, equipment, devices, records, correspondence, documents, files,\nreports, studies, manuals, compilations, drawings, blueprints, sketches, videos, memoranda, computer software and programs, data or any other\ninformation, including Trade Secrets and Confidential Information as set forth herein, (whether originals, copies or extracts), whether prepared\nor\ndeveloped by me or otherwise coming into my possession, whether maintained by me in the facilities of the Company, at my home, or at any other\nlocation, is, and shall remain, the exclusive property of the Company and shall be promptly delivered to the Company, with no copies or\nreproductions retained by me, in the event of my termination for any reason, or at any other time or times the Company may request. Upon\ntermination of employment for any reason, I agree to sign and deliver the "Termination Certification" attached hereto as Exhibit "A".\nG. Reasonable Restrictions. I agree and acknowledge that the restrictions contained in this Agreement are reasonable and necessary in order to\nprotect the valuable propriety assets, goodwil and business of the Company and that the restrictions will not prevent or unreasonably restrict\nmy\nability to earn a livelihood. I also agree and acknowledge that if my employment with the Company ends for any reason, I will be able to earn\na\nlivelihood without violating the restrictions contained in this Agreement and that my ability to earn a livelihood without violating said restrictions\nis\nan important reason in my choosing to sign this Agreement. Notwithstanding anything herein to the contrary, if for any reason the Employee is\nterminated before the expiration of six (6) months from the date of employment, then and in that event the provisions of subparagraph C above shall\nbe null and void and of no effect, and further provided, that all other terms and conditions shall be fully enforceable.\nH. At-Will Employment. I acknowledge that nothing contained herein is intended to constitute a contract of continued employment, but instead\nI\nrecognize and acknowledge that my employment with the Company is on an "at-will" basis and may be terminated by either myself or the Company\nat any time, for any reason or for no reason, with or without cause, and with or without notice.\nBy signing this Agreement, I indicate that I have read, accepted and agreed to its terms.\nIN WITNESS WHEREOF, I have executed this Agreement under seal on the date shown below.\nEMPLOYEE\nJeffrey L. Levine,\nS.S. # (Intentionally Omitted)\n(Home address intentionally omitted)\nSignature\n/s/ Jeffrey L. Levine\n(SEAL)\nJeffrey L. Levine\nDate: February 16, 2005\nEXHIBIT A\nTERMINATION CERTIFICATION\nThe undersigned Employee certifies that he/she does not possess and has not failed to return any property belonging to Omni National Bank,\nits parent, subsidiaries, affiliates, successors or assigns (together, the "Company"), including, but not limited to, equipment, devices, records,\ncorrespondence, documents, files, reports, studies, manuals, compilations, drawings, blueprints, sketches, videos, memoranda, computer software\nand programs, data or any other information, including Trade Secrets and Confidential Information as set forth herein, (whether originals, copies or\nextracts), whether prepared or developed by Employee or otherwise coming into Employee's possession, whether maintained by Employee in the\nfacilities of the Company, at Employee's home, or at any other location.\nEmployee further certifies that he/she will comply with all the terms of his/her Non- Solicitation, Non-Competition, Non-Disclosure and\nConfidentiality Agreement.\nDate:\nEmployee EX-10.4 10 dex104.htm NON-COMPETITION AGREEMENT\nExhibit 10.4\nNON-SOLICITATION, NON-COMPETITION,\nNON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nIn consideration of my employment or continued employment by Omni National Bank (“Company”) and in further consideration of a payment\nin the amount of Seventy Five Thousand ($75,000.00) Dollars, the receipt and sufficiency of which are hereby acknowledged, I, Jeffrey L. Levine,\nS.S . # (Intentionally Omitted), who resides at (Intentionally Omitted), (“Employee”) agree to the following:\nA. Non-Solicitation: Customers\nDuring my employment and for one (1) year immediately following the cessation of my employment with the Company for any reason, I shall\nnot, on my own behalf or on behalf of any person, firm, partnership, association, corporation or business organization, entity or enterprise (except\nCompany), solicit any customer of the Company, or any representative of any customer of the Company, with a view to selling or providing any\nproduct, equipment or service competitive with any product, equipment or service of the Company Business, as defined herein, during the twelve\n(12) month period immediately preceding cessation of my employment with the Company, provided that the restrictions set forth in this section shall\napply only to customers of the Company, or representatives of customers of the Company, with whom I had material contact during such twelve\n(12) month period. “Material contact” exists between myself and each of the Company’s existing customers: (i) with whom I actually dealt for a\nbusiness purpose while employed by the Company or to further a business relationship between the customer and the Company; or (ii) whose\nbusiness dealings with the Company were handled, coordinated or supervised by me.\nB. Non-Solicitation: Employees or Sales Representatives\nDuring my employment and for one (1) year immediately following the cessation of my employment with the Company for any reason, I will\nnot solicit or in any manner encourage employees of the Company to leave the employ of the Company. The foregoing prohibition applies only to\nemployees with whom I had material contact pursuant to my duties during the twelve (12) month period immediately preceding cessation of my\nemployment with the Company. “Material contact” means interaction between myself and another employee of the Company: (i) with whom I\nactually dealt; or (ii) whose employment or dealings with the Company or services for the Company were handled, coordinated or supervised by me.\nC. Non-competition. I acknowledge that my specialized skills, abilities and contacts are important to the success of the Company, and agree that I\nshall faithfully and strictly adhere to the terms hereof. I acknowledge that by reason of the character and nature of the Company’s business activities\nand operations, and further by reason of the scope of the territory in which I perform and will perform the Services (as defined below), in order to\nprotect the Company’s legitimate business interests it is necessary for me to agree not to engage in certain specified activities in such territory at any\ntime during my employment and for a period of time thereafter. Therefore, at all times during my employment with the Company, and for a period of\ntwo (2) years thereafter, I will not, directly or indirectly, within the Territory (as defined below), (a) for myself, (b) as a consultant, manager,\nsupervisor, employee or owner of a Competing Business\n(as defined below), or (c) as an independent contractor for a Competing Business, engage in any business in which I provide services which are the\nsame as or substantially similar to the Services. “Competing Business” shall mean any person, business or entity who or which sells, markets or\ndistributes products and/or sells, furnishes or provides services substantially the same as those sold, marketed, distributed, furnished or supplied by\nthe Company during the term of my employment with the Company. “Territory” shall mean the geographic area encompassed within a sixty\n(60) mile radius of the Company’s office at 1100 Abernathy Road, Atlanta, Georgia. I agree that the Company and I may amend the definition of\n“Territory” from and after the date hereof to reflect any significant contraction or expansion of the geographical area in which I actually perform the\nServices. “Services” shall mean the manager of the operations department for warehouse lending.\nD. Non-Disclosure\n1. TRADE SECRETS . I acknowledge that the Company is engaged in the business (“Company Business”) of Commercial and Retail Banking,\nand the Employee will be employed in a specialized area commonly referred to as: “redevelopment lending”. Redevelopment lending can be further\ndescribed as lending money to borrower who acquire dilapidated, inner-city single and multi-family homes, who after acquisition, re-habilitate those\nstructures for occupancy and/or sale. I acknowledge that this highly specialized area of lending is unique and to my knowledge there are no other\nbanks conducting this business in the geographical area as set forth above. I further acknowledge that prior to joining the Company, I was not\nemployed in this line of business. I further acknowledge that in order to conduct its business, the Company owns and uses trade secrets as defined\nunder applicable law (O.C.G.A. § 10-1 -761(4)). “Trade secret(s)” means information, without regard to form, including, but not limited to, technical\nor non-technical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial\nplans, product plans, or a list of actual or potential customers or suppliers which is not commonly known by or available to the public and which\ninformation: (a) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means\nby, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the\ncircumstances to maintain its secrecy. I further acknowledge that in the course of my employment with the Company and in order to carry out my\nduties thereunder, I have or will become privy to the Trade Secrets of the Company. Accordingly, I shall not disclose, divulge, publish to others, or\nuse for any purpose, except as necessary to perform my duties while employed by the Company, any Trade Secret of the Company without the prior\nwritten consent of the Company for so long as such information shall remain a Trade Secret.\n2. CONFIDENTIAL INFORMATION. I acknowledge that in order to conduct its business, the Company owns and uses written and unwritten\nconfidential information. “Confidential Information” means data and information relating to the business of the Company (which may not rise to the\nlevel of a Trade Secret under applicable law) which is or has been disclosed to me or of which I became aware as a consequence of or through my\nrelationship with the Company and which has value to the Company and is not generally known to its competitors. Confidential Information shall\nnot include any data or information that has been voluntarily disclosed to the public by the Company (except where such public disclosure has been\nmade by me without authorization) or that has been independently developed and disclosed by others, or\nthat otherwise enters the public domain through lawful means. I further acknowledge that in the course of my employment with the Company and in\norder to carry out my duties thereunder, I have or will become privy to Confidential Information of the Company. Accordingly, I agree that while\nemployed by the Company, and for a period of two (2) years from the conclusion of my employment with the Company for any reason, I will not\ndisclose, divulge, publish to others or use for any purpose any Confidential Information of the Company except to the extent necessary to perform\nmy duties and responsibilities as an Employee for the Company, without the prior written consent of the Company.\n3. NOTICE OF TRADE SECRETS AND CONFIDENTIAL INFORMATION . I acknowledge that the Company hereby designates Trade\nSecrets and Confidential Information to include, without limitation, confidential customer and prospective customer lists; information provided to\nthe Company by its customers or clients or prospective customers or clients; customer preferences; client contacts; marketing plans, presentations\nand strategies; inventions, patents and discoveries reasonably related to the Company’s business or products and services of the Company that have\nnot previously been publicly released by the Company, “software,” computer or electronic data disks or tapes, “processes,” “designs,” “research,”\ncomputer programs; source code; object code; methods of operations and costs data; internal policies and procedures; contracts; personnel\ninformation; credit terms; financial information (including without limitation information regarding fee and pricing structures, assets, status of client\naccounts or credit); or any other information designated as a trade secret, confidential or proprietary by the Company.\n4. TREATMENT OF TRADE SECRETS AND CONFIDENTIAL INFORMATION . I understand and agree to treat whatever information the\nCompany wants to protect from disclosure as genuinely “confidential”, i.e., restricting access by pass code, stamping hardcopies of customer lists\n“confidential”, and restricting access to the customer list except by personnel, and the like. I further agree, as an Employee, to use my best efforts\nand the utmost diligence to guard and protect the Company’s Trade Secrets and Confidential Information from disclosure to any competitor,\ncustomer or supplier of the Company or any other person, firm, corporation or other entity, unless such disclosure has been specifically authorized\nby the Company in writing.\nE. Ownership of Work Product. For purposes of this Agreement, “Work Product” shall mean the data, materials, documentation, computer programs,\nsource code, object code, inventions (whether or not patentable), and all works of authorship, including all worldwide rights therein under patent,\ncopyright, trade secret, confidential information, and other property rights, created or developed in whole or in part by me, whether prior to the date\nof this Agreement or in the future, either (i) while employed by the Company and that have been or will be paid for by the Company, or (ii) while\nemployed by the Company (whether developed during working hours or not) and not otherwise the subject of a written agreement between the\nCompany and me. All Work Product shall be considered work made for hire by me and owned by the Company; provided, however, that I shall be\nentitled to retain all rights in work performed outside of my normal work hours so long as I have not used any confidential information, trade secrets\nor other assets of the Company to perform such work. If any of the Work Product may not, by operation of law, be considered work made for hire by\nme for the Company, or if ownership of all rights, title, and interest of the intellectual property rights therein shall not\notherwise vest exclusively in the Company, I hereby assign to the Company, and upon the future creation thereof automatically assign to the\nCompany without further consideration, the ownership of all Work Product. The Company shall have the right to obtain and hold in its own name\npatents, copyrights, registrations and any other protection available in the Work Product. I agree to perform, during and after my employment, such\nfurther acts as may be necessary or desirable to transfer, perfect, and defend the Company’s ownership of the Work Product as reasonably requested\nby the Company.\nF. Return of Company Property. All Company property, including, but not limited to, equipment, devices, records, correspondence, documents, files,\nreports, studies, manuals, compilations, drawings, blueprints, sketches, videos, memoranda, computer software and programs, data or any other\ninformation, including Trade Secrets and Confidential Information as set forth herein, (whether originals, copies or extracts), whether prepared or\ndeveloped by me or otherwise coming into my possession, whether maintained by me in the facilities of the Company, at my home, or at any other\nlocation, is, and shall remain, the exclusive property of the Company and shall be promptly delivered to the Company, with no copies or\nreproductions retained by me, in the event of my termination for any reason, or at any other time or times the Company may request. Upon\ntermination of employment for any reason, I agree to sign and deliver the “Termination Certification” attached hereto as Exhibit “A”.\nG. Reasonable Restrictions. I agree and acknowledge that the restrictions contained in this Agreement are reasonable and necessary in order to\nprotect the valuable propriety assets, goodwill and business of the Company and that the restrictions will not prevent or unreasonably restrict my\nability to earn a livelihood. I also agree and acknowledge that if my employment with the Company ends for any reason, I will be able to earn a\nlivelihood without violating the restrictions contained in this Agreement and that my ability to earn a livelihood without violating said restrictions is\nan important reason in my choosing to sign this Agreement. Notwithstanding anything herein to the contrary, if for any reason the Employee is\nterminated before the expiration of six (6) months from the date of employment, then and in that event the provisions of subparagraph C above shall\nbe null and void and of no effect, and further provided, that all other terms and conditions shall be fully enforceable.\nH. At-Will Employment. I acknowledge that nothing contained herein is intended to constitute a contract of continued employment, but instead I\nrecognize and acknowledge that my employment with the Company is on an “at-will” basis and may be terminated by either myself or the Company\nat any time, for any reason or for no reason, with or without cause, and with or without notice.\nBy signing this Agreement, I indicate that I have read, accepted and agreed to its terms.\nIN WITNESS WHEREOF, I have executed this Agreement under seal on the date shown below.\nEMPLOYEE\nJeffrey L. Levine,\nS.S . # (Intentionally Omitted)\n(Home address intentionally omitted)\nSignature\n/s/ Jeffrey L. Levine\n(SEAL)\nJeffrey L. Levine\nDate: February 16, 2005\nEXHIBIT A\nTERMINATION CERTIFICATION\nThe undersigned Employee certifies that he/she does not possess and has not failed to return any property belonging to Omni National Bank,\nits parent, subsidiaries, affiliates, successors or assigns (together, the “Company”), including, but not limited to, equipment, devices, records,\ncorrespondence, documents, files, reports, studies, manuals, compilations, drawings, blueprints, sketches, videos, memoranda, computer software\nand programs, data or any other information, including Trade Secrets and Confidential Information as set forth herein, (whether originals, copies or\nextracts), whether prepared or developed by Employee or otherwise coming into Employee’s possession, whether maintained by Employee in the\nfacilities of the Company, at Employee’s home, or at any other location.\nEmployee further certifies that he/she will comply with all the terms of his/her Non- Solicitation, Non-Competition, Non-Disclosure and\nConfidentiality Agreement.\nDate:\nEmployee 96e343b9123175bd6625537e27275ee0.pdf effective_date jurisdiction party term EX-99.(D)(2) 8 d875156dex99d2.htm EXHIBIT (D)(2)\nExhibit (d)(2)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of November 26, 2014 between E2open, Inc., a Delaware\ncorporation (“E2open”) and Insight Venture Partners, LLC (“Insight”).\nIn order to facilitate the consideration and negotiation of a possible negotiated transaction involving E2open and Insight (or one or more of\nits affiliates) (E2open and Insight referred to collectively as the “Parties” and individually as a “Party”), each Party has either requested or may\nrequest access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a\nprovider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is\nreferred to in this Agreement as the “Recipient”.) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such\ninformation and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 4 below, neither the Recipient nor any of the\nRecipient’s Representatives (as defined in Section 15 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider ’s Confidential Information (as defined in Section 13 below), except for the specific purpose of\nconsidering, evaluating, negotiating and implementing a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 15 below).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or\nconduct on the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own\nexpense) take actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider ’s\nConfidential Information.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential\nInformation must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A or any investment banks or outside\nlegal counsel retained by the Provider in connection with the possible transaction (the “Provider Contact Person”). Neither the Recipient nor\nany of the Recipient’s Representatives will contact or otherwise communicate with any other Representative or employee of the Provider in\nconnection with a possible transaction without the prior written authorization of the Provider Contact Person.\n3. No Representations by Provider. The Provider Contact Person will have the exclusive authority to decide what Confidential\nInformation (if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of the\nProvider ’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the\nRecipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously\nfurnished. Neither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the\naccuracy or completeness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any\nliability to the Recipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United\nStates federal or state securities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any\ninaccuracies or errors therein or omissions therefrom. The Recipient and its Representatives are not\n1\nentitled to, and will not, rely on the accuracy or completeness of any of the Provider’s Confidential Information. Only those representations and\nwarranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction\nbetween the Parties (or one or more of their respective affiliates) and is validly executed on behalf of the Parties or such affiliates (a “Definitive\nAgreement”) will have legal effect. For purposes of this Agreement, the term “Definitive Agreement” does not include an executed letter of\nintent, term sheet or any other preliminary written agreement (whether or not binding in whole or in part). The Provider and its Representatives\nexpressly disclaim any duty (express or implied) to update, supplement or correct any of the Provider’s Confidential Information regardless of\nthe circumstances.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient’s disclosure thereof, provided such consent is sought prior to any such disclosure;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative (A) reasonably needs to know such Confidential Information for the purpose of\nevaluating, negotiating or implementing a possible negotiated transaction between the Parties (or one or more of their affiliates), and\n(B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the provisions hereof or is otherwise bound\nby confidentiality obligations at least as restrictive as those contained in this Agreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process.\n(b) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other\nvalid legal process to disclose any of the Provider ’s Confidential Information to any Person, then the Recipient will, to the extent not prohibited\nby law, promptly provide the Provider with written notice of the applicable law, regulation or process so that the Provider may seek a protective\norder or other appropriate remedy. The Recipient and its Representatives will reasonably cooperate with the Provider and the Provider’s\nRepresentatives in any attempt by the Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is\nunsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential\nInformation of the Provider, then the Recipient may disclose such Confidential Information to the extent required; provided, however, that the\nRecipient and its Representatives will use their reasonable best efforts to ensure that such Confidential Information is treated confidentially by\neach Person to whom it is disclosed. Notwithstanding the foregoing, Recipient and its Representatives (a) may disclose Confidential Information\nin connection with routine supervisory audit or regulatory examinations (including, without limitation, by regulatory or self-regulatory bodies) to\nwhich they are subject in the course of their respective businesses without liability hereunder and (b) shall not be required to provide notice to\nany party in the course of any such routine supervisory audit or regulatory examination, provided that such routine audit or examination does not\nspecifically target the Provider or the Confidential Information.\n5. Return of Confidential Information. Upon the Provider ’s written request, the Recipient and the Recipient’s Representatives will\npromptly deliver to the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or\nany of the Recipient’s Representatives; provided, however, that, in lieu of delivering to the Provider any written materials containing Confidential\nInformation of the Provider, the Recipient may destroy such written\n2\nmaterials and deliver to the Provider written confirmation of their destruction. Notwithstanding the foregoing, Recipient and its Representatives\nshall (i) be permitted to retain copies of the Confidential Information in accordance with policies and procedures implemented by Recipient or\nsuch Representatives, as the case may be, in order to comply with applicable law, regulation or professional standards, or for actual or anticipated\nlitigation, and (ii) not be required to destroy any computer records or files containing Confidential Information that have been created pursuant to\narchiving and back-up procedures. Notwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information\nof the Provider pursuant to this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and\nother obligations under this Agreement.\n6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, Insight agrees that it will\nnot and will not permit any of its Representatives or any direct or indirect subsidiary of Insight to solicit for employment with Insight or with any\nof its direct or indirect subsidiaries any employee of the E2open or any subsidiary of E2open; provided, however, that this Section 6 will not\nprevent Insight or its direct or indirect subsidiaries from causing to be placed any general advertisement or similar notice that is not targeted\nspecifically at employees of the E2open or its subsidiaries.\n7. Standstill Provision for E2open.\n(a) During the 12 month period commencing on the date of this Agreement (the “Standstill Period”), neither Insight nor any of\nInsight’s Representatives on behalf of Insight will, in any manner, directly or indirectly:\n(i) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of E2open or any\nsecurities (including derivatives thereof) of any subsidiary or other affiliate of E2open, (ii) any acquisition of any assets of E2open or any assets\nof any subsidiary, division or other affiliate of E2open, (iii) any tender offer, exchange offer, merger, business combination, recapitalization,\nrestructuring, liquidation, dissolution or extraordinary transaction involving E2open or any subsidiary or other affiliate of E2open or involving\nany securities or assets of E2open or any securities or assets of any subsidiary, division or other affiliate of E2open, or (iv) any “solicitation” of\n“proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of\nE2open;\n(ii) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934, as amended, and the rules\npromulgated thereunder) with respect to the beneficial ownership of any securities of E2open or any subsidiary or division of E2open;\n(iii) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of\nE2open;\n(iv) take any action that might require E2open to make a public announcement regarding any of the types of matters set forth\nin clause “(a)” of this sentence;\n(v) agree or offer to take, or seek, encourage or propose (publicly or otherwise) the taking of, any action referred to in clause\n“(a)”, “(b)”, “(c)” or “(d)” of this sentence;\n(vi) assist, induce or encourage any other Person to take any action of the type referred to in clause “(i)”, “(ii)”, “(iii)”, “(iv)”\nor “(v)” of this sentence; or\n(vii) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing.\n3\n(b) Notwithstanding anything herein to the contrary, nothing in this Section 7 shall restrict Insight from making any proposal\nregarding a transaction directly to the board of directors of E2open on a confidential basis if such proposal would not reasonably be expected to\nrequire E2open to make a public announcement regarding this Agreement, a transaction or any of the matters described in this Section 7.\n(c) In the event that E2open enters into a definitive agreement with any other person involving an acquisition of a majority of the\noutstanding securities (by way of merger, or otherwise) or all or substantially all of the assets of E2open to a third party or such transaction has\nbeen publicly announced, Insight shall be released from any and all of the restrictions and obligations contained in this Section 7.\n8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter\ninto any such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it\ndeems appropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such\nprocess without giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s\nRepresentatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any\ntime. Each Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after\nthe date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or\ntransaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other\nParty’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this\nAgreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or\nfuture exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived\nor amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the\nparticular provision or provisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such\nParty or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach.\nAccordingly, each Party will also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or\nthreatened breach of this Agreement by the other Party or any of the other Party’s Representatives. Each Party further agrees not to raise, as a\ndefense or objection to the request or granting of such equitable relief, that any breach of this Agreement is or would be compensable by an\naward of money damages, and each Party agrees to waive any requirements for the securing or posting of any bond in connection with such\nremedy. The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will\nbe in addition to all other remedies available at law or in equity to the Parties. In the event of litigation relating to this Agreement, if a court of\ncompetent jurisdiction determines in a final, non-appealable judgment, that either Party or any of its Representatives has breached this\nAgreement, such Party will pay to the other Party, the reasonable legal fees incurred by the other Party in connection with such litigation\n(including any appeal relating thereto).\n4\n11. Trading in Securities. The Recipient acknowledges and agrees that it is aware (and that the Recipient’s Representatives are aware or\nwill be advised by the Recipient) that Confidential Information being furnished by the Provider may contain material, non-public information\nregarding the Provider and that the United States securities laws prohibit any Person who has such material, non-public information from\npurchasing or selling securities of the Provider on the basis of such information or from communicating such information to any Person under\ncircumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such securities on the basis of such information.\n12. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of\neach Party and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with the laws of\nthe State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and\nsubmits to the jurisdiction of the state and federal courts located in the State of Delaware purposes of any action, suit or proceeding arising out of\nor relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth\nopposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or proceeding brought\nagainst such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out\nof or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and unconditionally waives the\nright to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or\nrelating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient\nforum.\n13. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include the\nfollowing:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget,\nforecast or projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other\naffiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has at\nany time been made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative\nof the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or\nhas been prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or\nindirectly upon any information of the type referred to in clause “(a)” of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and\nthe proposed terms of any such transaction.\nHowever, the Provider ’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure\nof any of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of\nthe Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such\n5\ninformation was not and is not known to the Recipient (after reasonable inquiry) to be bound by any contractual or other obligation of\nconfidentiality to the Provider or to any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient from a source other than the Provider or any of the Provider’s\nRepresentatives, provided that such source is not known to the Recipient (after reasonable inquiry) to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential\nInformation and without reference to or use of Confidential Information.\n14. Co-Bidders and Financing Sources\nWithout limiting anything in this Agreement, Insight agrees that it will not directly or indirectly (i) approach or team, co-venture, club or\notherwise partner with any person or firm that may be interested in participating in a transaction with E2open as a principal, co-investor, co-\nbidder or financing source, (ii) engage in any discussions which might lead to, or enter into, any agreement, arrangement or understanding with\nany such person or firm; provided, however, that subject to the written pre-approval of the Company and subject to Section 15(a) below, Insight\nmay contact and/or utilize pre-approved debt financing sources in connection with the potential negotiated transaction between the Parties,\n(iii) enter into any agreement, arrangement or understanding with any such person or firm to provide Insight or one or more of its affiliates with\ndebt financing (or other potential sources of debt capital) on an exclusive basis, or that would have the effect of preventing, impairing or\notherwise limiting the ability of any such person or firm to provide debt financing (or other potential sources of debt capital) to any other person\nin connection with a transaction involving the Company, (iv) have any discussions or other communications, or enter into any agreements or\nother arrangements or understandings, with any third party (other than its Representatives) with respect to (A) whether or not Insight will make\nan offer or proposal to acquire the Company or enter into any other transaction with the Company, or (B) the price that Insight may offer for the\nCompany or any valuation that Insight may ascribe to the Company (either on a stand-alone basis or as a result of any such transaction) or\n(v) have any formal or informal discussions, or enter into any agreement, arrangement or understanding (whether or not binding), with any\nstockholder, director, officer or other employee of the Company relating to a transaction with the Company or to the Company (including any\ndirect or indirect parent company or other affiliate thereof) or any of its businesses or operations from and after the consummation of such a\ntransaction, including, without limitation, as to continued equity or other investment interests in the Company (or any direct or indirect parent\ncompany or other affiliate thereof), whether by way of a “rollover” of existing investment interests or the making of new investments, or as to\nemployment with or consulting services to the Company (or an direct or indirect parent company or other affiliate thereof).\n15. Miscellaneous.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a\nsubsidiary of such Party, (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any\nof such Party’s subsidiaries or affiliates (excluding any affiliated portfolio companies) or (iii) only upon prior written approval of E2open, a\npotential debt financing source to be used by Insight in connection with a potential negotiated transaction between the Parties, provided that any\ndebt financing source enters into a confidentiality agreement with Insight that includes obligations relating to E2open’s Confidential Information\nthat are at least as restrictive as the obligations in this Agreement (and providing that E2open shall be a third party beneficiary thereof).\nRepresentatives shall not include any potential principal, co-investor, co-bidder, provider of equity capital that is not any equity fund affiliated\nwith Insight, any proposed joint buyer in a possible negotiated transaction with E2open or a debt financing source that is not pre-approved in\nwriting by E2open.\n6\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation,\npartnership, entity, group, tribunal or governmental authority.\n(c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken\ninto account in the interpretation of this Agreement.\n(d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any\nother situation or in any other jurisdiction.\n(e) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the\nProvider is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any\npatent, trade secret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s\nRepresentatives shall file any patent application containing any claim to any subject matter derived from the Confidential Information of the\nProvider.\n(f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending,\nthreatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a\ncommonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it\nis the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not,\naffect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or\nother information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all\nConfidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or\ndoctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to\ntake all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n(g) It is acknowledged and agreed that Insight and its affiliates are involved in a variety of businesses and may have acquired (or\ninvested in), or may acquire (or invest in), directly or indirectly, other businesses which do, or may, compete with E2open. For the avoidance of\ndoubt, subject to compliance with the terms hereof, nothing in this Agreement is intended to limit Insight’s or its affiliates’ ability to acquire or\ninvest in such other businesses.\n(h) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof. The terms of this Agreement shall\ncontrol over any additional purported confidentiality requirements imposed by any offering memorandum, web-based database or similar\nrepository of Confidential Information to which the Recipient or any of its Representatives is granted access in connection with a transaction,\nnotwithstanding acceptance of such an offering memorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other\nindication of assent to such additional confidentiality conditions, it being understood and agreed that the Recipient’s and its Representatives’\nconfidentiality obligations with respect to Confidential Information are exclusively governed by this Agreement and may not be enlarged except\nby a written agreement that is hereafter executed by each of the parties hereto.\n7\n(i) This Agreement shall continue in full force and effect for a period of two years from the effective date of this Agreement. Nothing\nherein is intended to limit or abridge the protection of trade secrets under applicable trade secrets law, and the protection of trade secrets by the\nRecipient shall be maintained as such until they fall into the public domain.\n(j) The Recipient agrees not to export, directly or indirectly, any U.S . source technical data acquired from the Provider or any\nproducts utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or\nregulations.\n(k) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related\nhereto, including legal notices, shall be in the English language only.\n(k) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transaction or\nby facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.\nThe parties have caused this Agreement to be executed as of November 26, 2014.\nE2OPEN, INC.\nINSIGHT VENTURE PARTNERS, LLC\nBy: /s/ Peter Maloney\nBy: /s/ Eric Goldstein\nTitle: CFO\nTitle: Deputy General Counsel / Chief Compliance Officer\nAddress: 4100 East Third Avenue, Suite 400\nFoster City, CA 94404\nAddress: 1114 Avenue of the Americas\nNew York, NY 10036\n8\nEXHIBIT A\nPROVIDER CONTACT PERSON\nE2OPEN:\nMARK WOODWARD (CEO)\nPETER MALONEY (CFO)\nSCOTT MILLER (GENERAL COUNSEL)\n9 EX-99.(D)(2) 8 d875156dex99d2.htm EXHIBIT (D)(2)\nExhibit (d)(2)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of November 26, 2014 between E2open, Inc., a Delaware\ncorporation (“E2open”) and Insight Venture Partners, LLC (“Insight”).\nIn order to facilitate the consideration and negotiation of a possible negotiated transaction involving E2open and Insight (or one or more of\nits affiliates) (E2open and Insight referred to collectively as the “Parties” and individually as a “Party”), each Party has either requested or may\nrequest access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a\nprovider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is\nreferred to in this Agreement as the “Recipient”.) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such\ninformation and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 4 below, neither the Recipient nor any of the\nRecipient’s Representatives (as defined in Section 15 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information (as defined in Section 13 below), except for the specific purpose of\nconsidering, evaluating, negotiating and implementing a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 15 below).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or\nconduct on the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own\nexpense) take actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s\nConfidential Information.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential\nInformation must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A or any investment banks or outside\nlegal counsel retained by the Provider in connection with the possible transaction (the “Provider Contact Person”). Neither the Recipient nor\nany of the Recipient’s Representatives will contact or otherwise communicate with any other Representative or employee of the Provider in\nconnection with a possible transaction without the prior written authorization of the Provider Contact Person.\n3. No Representations by Provider. The Provider Contact Person will have the exclusive authority to decide what Confidential\nInformation (if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of the\nProvider’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the\nRecipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously\nfurnished. Neither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the\naccuracy or completeness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any\nliability to the Recipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United\nStates federal or state securities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any\ninaccuracies or errors therein or omissions therefrom. The Recipient and its Representatives are not\n1\nentitled to, and will not, rely on the accuracy or completeness of any of the Provider’s Confidential Information. Only those representations and\nwarranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction\nbetween the Parties (or one or more of their respective affiliates) and is validly executed on behalf of the Parties or such affiliates (a “Definitive\nAgreement”) will have legal effect. For purposes of this Agreement, the term “Definitive Agreement” does not include an executed letter of\nintent, term sheet or any other preliminary written agreement (whether or not binding in whole or in part). The Provider and its Representatives\nexpressly disclaim any duty (express or implied) to update, supplement or correct any of the Provider’s Confidential Information regardless of\nthe circumstances.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient’s disclosure thereof, provided such consent is sought prior to any such disclosure;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative (A) reasonably needs to know such Confidential Information for the purpose of\nevaluating, negotiating or implementing a possible negotiated transaction between the Parties (or one or more of their affiliates), and\n(B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the provisions hereof or is otherwise bound\nby confidentiality obligations at least as restrictive as those contained in this Agreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process.\n(b) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other\nvalid legal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will, to the extent not prohibited\nby law, promptly provide the Provider with written notice of the applicable law, regulation or process so that the Provider may seek a protective\norder or other appropriate remedy. The Recipient and its Representatives will reasonably cooperate with the Provider and the Provider’s\nRepresentatives in any attempt by the Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is\nunsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential\nInformation of the Provider, then the Recipient may disclose such Confidential Information to the extent required; provided, however, that the\nRecipient and its Representatives will use their reasonable best efforts to ensure that such Confidential Information is treated confidentially by\neach Person to whom it is disclosed. Notwithstanding the foregoing, Recipient and its Representatives (a) may disclose Confidential Information\nin connection with routine supervisory audit or regulatory examinations (including, without limitation, by regulatory or self-regulatory bodies) to\nwhich they are subject in the course of their respective businesses without liability hereunder and (b) shall not be required to provide notice to\nany party in the course of any such routine supervisory audit or regulatory examination, provided that such routine audit or examination does not\nspecifically target the Provider or the Confidential Information.\n5. Return of Confidential Information. Upon the Provider’s written request, the Recipient and the Recipient’s Representatives will\npromptly deliver to the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or\nany of the Recipient’s Representatives; provided, however, that, in lieu of delivering to the Provider any written materials containing Confidential\nInformation of the Provider, the Recipient may destroy such written\nmaterials and deliver to the Provider written confirmation of their destruction. Notwithstanding the foregoing, Recipient and its Representatives\nshall (i) be permitted to retain copies of the Confidential Information in accordance with policies and procedures implemented by Recipient or\nsuch Representatives, as the case may be, in order to comply with applicable law, regulation or professional standards, or for actual or anticipated\nlitigation, and (ii) not be required to destroy any computer records or files containing Confidential Information that have been created pursuant to\narchiving and back-up procedures. Notwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information\nof the Provider pursuant to this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and\nother obligations under this Agreement.\n6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, Insight agrees that it will\nnot and will not permit any of its Representatives or any direct or indirect subsidiary of Insight to solicit for employment with Insight or with any\nof its direct or indirect subsidiaries any employee of the E2open or any subsidiary of E2open; provided, however, that this Section 6 will not\nprevent Insight or its direct or indirect subsidiaries from causing to be placed any general advertisement or similar notice that is not targeted\nspecifically at employees of the E2open or its subsidiaries.\n7. Standstill Provision for E2open.\n(a) During the 12 month period commencing on the date of this Agreement (the “Standstill Period”), neither Insight nor any of\nInsight’s Representatives on behalf of Insight will, in any manner, directly or indirectly:\n(i) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of E2open or any\nsecurities (including derivatives thereof) of any subsidiary or other affiliate of E2open, (ii) any acquisition of any assets of E2open or any assets\nof any subsidiary, division or other affiliate of E2open, (iii) any tender offer, exchange offer, merger, business combination, recapitalization,\nrestructuring, liquidation, dissolution or extraordinary transaction involving E2open or any subsidiary or other affiliate of E2open or involving\nany securities or assets of E2open or any securities or assets of any subsidiary, division or other affiliate of E2open, or (iv) any “solicitation” of\n“proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of\nE2open;\n(ii) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934, as amended, and the rules\npromulgated thereunder) with respect to the beneficial ownership of any securities of E2open or any subsidiary or division of E2open;\n(iii) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of\nE2open;\n(iv) take any action that might require E2open to make a public announcement regarding any of the types of matters set forth\nin clause “(a)” of this sentence;\n(v) agree or offer to take, or seek, encourage or propose (publicly or otherwise) the taking of, any action referred to in clause\n“(@)”, “(b)”, “(c)” or “(d)” of this sentence;\n(vi) assist, induce or encourage any other Person to take any action of the type referred to in clause “(i)”, “(ii)”, “(iii)”, “(iv)”\nor “(v)” of this sentence; or\n(vii) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing.\n3\n(b) Notwithstanding anything herein to the contrary, nothing in this Section 7 shall restrict Insight from making any proposal\nregarding a transaction directly to the board of directors of E2open on a confidential basis if such proposal would not reasonably be expected to\nrequire E2open to make a public announcement regarding this Agreement, a transaction or any of the matters described in this Section 7.\n() In the event that E2open enters into a definitive agreement with any other person involving an acquisition of a majority of the\noutstanding securities (by way of merger, or otherwise) or all or substantially all of the assets of E2open to a third party or such transaction has\nbeen publicly announced, Insight shall be released from any and all of the restrictions and obligations contained in this Section 7.\n8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter\ninto any such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it\ndeems appropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such\nprocess without giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s\nRepresentatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any\ntime. Each Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after\nthe date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or\ntransaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other\nParty’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this\nAgreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or\nfuture exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived\nor amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the\nparticular provision or provisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such\nParty or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach.\nAccordingly, each Party will also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or\nthreatened breach of this Agreement by the other Party or any of the other Party’s Representatives. Each Party further agrees not to raise, as a\ndefense or objection to the request or granting of such equitable relief, that any breach of this Agreement is or would be compensable by an\naward of money damages, and each Party agrees to waive any requirements for the securing or posting of any bond in connection with such\nremedy. The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will\nbe in addition to all other remedies available at law or in equity to the Parties. In the event of litigation relating to this Agreement, if a court of\ncompetent jurisdiction determines in a final, non-appealable judgment, that either Party or any of its Representatives has breached this\nAgreement, such Party will pay to the other Party, the reasonable legal fees incurred by the other Party in connection with such litigation\n(including any appeal relating thereto).\n11. Trading in Securities. The Recipient acknowledges and agrees that it is aware (and that the Recipient’s Representatives are aware or\nwill be advised by the Recipient) that Confidential Information being furnished by the Provider may contain material, non-public information\nregarding the Provider and that the United States securities laws prohibit any Person who has such material, non-public information from\npurchasing or selling securities of the Provider on the basis of such information or from communicating such information to any Person under\ncircumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such securities on the basis of such information.\n12. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of\neach Party and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with the laws of\nthe State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and\nsubmits to the jurisdiction of the state and federal courts located in the State of Delaware purposes of any action, suit or proceeding arising out of\nor relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth\nopposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or proceeding brought\nagainst such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out\nof or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and unconditionally waives the\nright to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or\nrelating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient\nforum.\n13. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include the\nfollowing:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget,\nforecast or projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other\naffiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has at\nany time been made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative\nof the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or\nhas been prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or\nindirectly upon any information of the type referred to in clause “(a)” of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and\nthe proposed terms of any such transaction.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure\nof any of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of\nthe Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such\n5\ninformation was not and is not known to the Recipient (after reasonable inquiry) to be bound by any contractual or other obligation of\nconfidentiality to the Provider or to any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient from a source other than the Provider or any of the Provider’s\nRepresentatives, provided that such source is not known to the Recipient (after reasonable inquiry) to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential\nInformation and without reference to or use of Confidential Information.\n14. Co-Bidders and Financing Sources\nWithout limiting anything in this Agreement, Insight agrees that it will not directly or indirectly (i) approach or team, co-venture, club or\notherwise partner with any person or firm that may be interested in participating in a transaction with E2open as a principal, co-investor, co-\nbidder or financing source, (ii) engage in any discussions which might lead to, or enter into, any agreement, arrangement or understanding with\nany such person or firm; provided, however, that subject to the written pre-approval of the Company and subject to Section 15(a) below, Insight\nmay contact and/or utilize pre-approved debt financing sources in connection with the potential negotiated transaction between the Parties,\n(iii) enter into any agreement, arrangement or understanding with any such person or firm to provide Insight or one or more of its affiliates with\ndebt financing (or other potential sources of debt capital) on an exclusive basis, or that would have the effect of preventing, impairing or\notherwise limiting the ability of any such person or firm to provide debt financing (or other potential sources of debt capital) to any other person\nin connection with a transaction involving the Company, (iv) have any discussions or other communications, or enter into any agreements or\nother arrangements or understandings, with any third party (other than its Representatives) with respect to (A) whether or not Insight will make\nan offer or proposal to acquire the Company or enter into any other transaction with the Company, or (B) the price that Insight may offer for the\nCompany or any valuation that Insight may ascribe to the Company (either on a stand-alone basis or as a result of any such transaction) or\n(v) have any formal or informal discussions, or enter into any agreement, arrangement or understanding (whether or not binding), with any\nstockholder, director, officer or other employee of the Company relating to a transaction with the Company or to the Company (including any\ndirect or indirect parent company or other affiliate thereof) or any of its businesses or operations from and after the consummation of such a\ntransaction, including, without limitation, as to continued equity or other investment interests in the Company (or any direct or indirect parent\ncompany or other affiliate thereof), whether by way of a “rollover” of existing investment interests or the making of new investments, or as to\nemployment with or consulting services to the Company (or an direct or indirect parent company or other affiliate thereof).\n15. Miscellaneous.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a\nsubsidiary of such Party, (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any\nof such Party’s subsidiaries or affiliates (excluding any affiliated portfolio companies) or (iii) only upon prior written approval of E2open, a\npotential debt financing source to be used by Insight in connection with a potential negotiated transaction between the Parties, provided that any\ndebt financing source enters into a confidentiality agreement with Insight that includes obligations relating to E2open’s Confidential Information\nthat are at least as restrictive as the obligations in this Agreement (and providing that E2open shall be a third party beneficiary thereof).\nRepresentatives shall not include any potential principal, co-investor, co-bidder, provider of equity capital that is not any equity fund affiliated\nwith Insight, any proposed joint buyer in a possible negotiated transaction with E2open or a debt financing source that is not pre-approved in\nwriting by E2open.\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation,\npartnership, entity, group, tribunal or governmental authority.\n(c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken\ninto account in the interpretation of this Agreement.\n(d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any\nother situation or in any other jurisdiction.\n(e) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the\nProvider is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any\npatent, trade secret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s\nRepresentatives shall file any patent application containing any claim to any subject matter derived from the Confidential Information of the\nProvider.\n(f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending,\nthreatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a\ncommonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it\nis the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not,\naffect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or\nother information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all\nConfidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or\ndoctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to\ntake all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n(g) It is acknowledged and agreed that Insight and its affiliates are involved in a variety of businesses and may have acquired (or\ninvested in), or may acquire (or invest in), directly or indirectly, other businesses which do, or may, compete with E2open. For the avoidance of\ndoubt, subject to compliance with the terms hereof, nothing in this Agreement is intended to limit Insight’s or its affiliates’ ability to acquire or\ninvest in such other businesses.\n(h) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof. The terms of this Agreement shall\ncontrol over any additional purported confidentiality requirements imposed by any offering memorandum, web-based database or similar\nrepository of Confidential Information to which the Recipient or any of its Representatives is granted access in connection with a transaction,\nnotwithstanding acceptance of such an offering memorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other\nindication of assent to such additional confidentiality conditions, it being understood and agreed that the Recipient’s and its Representatives’\nconfidentiality obligations with respect to Confidential Information are exclusively governed by this Agreement and may not be enlarged except\nby a written agreement that is hereafter executed by each of the parties hereto.\n7\n(i) This Agreement shall continue in full force and effect for a period of two years from the effective date of this Agreement. Nothing\nherein is intended to limit or abridge the protection of trade secrets under applicable trade secrets law, and the protection of trade secrets by the\nRecipient shall be maintained as such until they fall into the public domain.\n(j) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any\nproducts utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or\nregulations.\n(k) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related\nhereto, including legal notices, shall be in the English language only.\n(k) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transaction or\nby facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.\nThe parties have caused this Agreement to be executed as of November 26, 2014.\nE20PEN, INC. INSIGHT VENTURE PARTNERS, LL.C\nBy: /s/ Peter Maloney By: /s/ Eric Goldstein\nTitle: CFO Title: Deputy General Counsel / Chief Compliance Officer\nAddress: 4100 East Third Avenue, Suite 400 Address: 1114 Avenue of the Americas\nFoster City, CA 94404 New York, NY 10036\nEXHIBIT A\nPROVIDER CONTACT PERSON\nE20PEN:\nMARK WOODWARD (CEO)\nPETER MALONEY (CFO)\nSCOTT MILLER (GENERAL COUNSEL) EX-99.(D)(2) 8 d875156dex99d2.htm EXHIBIT (D)(2)\nExhibit (d)(2)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT ("Agreement") is being entered into as of November 26, 2014 between E2open, Inc., a Delaware\ncorporation ("E2open") and Insight Venture Partners, LLC ("Insight").\nIn\norder to facilitate the consideration and negotiation of a possible negotiated transaction involving E2open and Insight (or one or more of\nits affiliates) (E2open and Insight referred to collectively as the "Parties" and individually as a "Party"), each Party has either requested or may\nrequest access to certain non-public information regarding the other Party and the other Party's subsidiaries. (Each Party, in its capacity as a\nprovider of information, is referred to in this Agreement as the "Provider"; and each Party, in its capacity as a recipient of information, is\nreferred to in this Agreement as the "Recipient".) This Agreement sets forth the Parties' obligations regarding the use and disclosure of such\ninformation and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 4 below, neither the Recipient nor any of the\nRecipient's Representatives (as defined in Section 15 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider's Confidential Information (as defined in Section 13 below), except for the specific purpose of\nconsidering, evaluating, negotiating and implementing a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider's Confidential Information to any other Person (as defined in Section 15 below).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or\nconduct on the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own\nexpense) take actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider's\nConfidential Information.\n2.\nProvider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider's Confidential\nInformation must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A or any investment banks or outside\nlegal counsel retained by the Provider in connection with the possible transaction (the "Provider Contact Person"). Neither the Recipient nor\nany of the Recipient's Representatives will contact or otherwise communicate with any other Representative or employee of the Provider in\nconnection with a possible transaction without the prior written authorization of the Provider Contact Person.\n3. No Representations by Provider. The Provider Contact Person will have the exclusive authority to decide what Confidential\nInformation (if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of the\nProvider's Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the\nRecipient or any of the Recipient's Representatives or to supplement or update any Confidential Information of the Provider previously\nfurnished. Neither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the\naccuracy or completeness of any of the Provider's Confidentia Information, and neither the Provider nor any of its Representatives will have any\nliability to the Recipient or to any of the Recipient's Representatives on any basis (including, without limitation, in contract, tort or under United\nStates federal or state securities laws or otherwise) relating to or resulting from the use of any of the Provider's Confidential Information or any\ninaccuracies or errors therein or omissions therefrom. The Recipient and its Representatives are not\n1\nentitled to, and will not, rely on the accuracy or completeness of any of the Provider's Confidential Information. Only those representations and\nwarranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction\nbetween the Parties (or one or more of their respective affiliates) and is validly executed on behalf of the Parties or such affiliates (a "Definitive\nAgreement") will have legal effect. For purposes of this Agreement, the term "Definitive Agreement" does not include an executed letter of\nintent, term sheet or any other preliminary written agreement (whether or not binding in whole or in part). The Provider and its Representatives\nexpressly disclaim any duty (express or implied) to update, supplement or correct any of the Provider's Confidential Information regardless of\nthe circumstances.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient's disclosure thereof, provided such consent is sought prior to any such disclosure;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative\nof\nthe Recipient, but only to the extent such Representative (A) reasonably needs to know such Confidential Information for the purpose of\nevaluating, negotiating or implementing a possible negotiated transaction between the Parties (or one or more of their affiliates), and\n(B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the provisions hereof or is otherwise bound\nby confidentiality obligations at least as restrictive as those contained in this Agreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process.\n(b) If the Recipient or any of the Recipient's Representatives is required by law or governmenta regulation or by subpoena or other\nvalid legal process to disclose any of the Provider's Confidential Information to any Person, then the Recipient will, to the extent not prohibited\nby law, promptly provide the Provider with written notice of the applicable law, regulation or process so that the Provider may seek a protective\norder or other appropriate remedy. The Recipient and its Representatives will reasonably cooperate with the Provider and the Provider's\nRepresentatives in any attempt by the Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is\nunsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential\nInformation of the Provider, then the Recipient may disclose such Confidential Information to the extent required; provided, however, that the\nRecipient and its Representatives will use their reasonable best efforts to ensure that such Confidential Information is treated confidentially by\neach\nPerson to whom it is disclosed. Notwithstanding the foregoing, Recipient and its Representatives (a) may disclose Confidential Information\nin connection with routine supervisory audit or regulatory examinations (including, without limitation, by regulatory or self-regulatory bodies) to\nwhich they are subject in the course of their respective businesses without liability hereunder and (b) shall not be required to provide notice\nto\nany party in the course of any such routine supervisory audit or regulatory examination, provided that such routine audit or examination does not\nspecifically target the Provider or the Confidential Information.\n5. Return of Confidential Information. Upon the Provider's written request, the Recipient and the Recipient's Representatives will\npromptly deliver to the Provider any of the Provider's Confidential Information (and all copies thereof) obtained or possessed by the Recipient or\nany of the Recipient's Representatives; provided, however, that, in lieu of delivering to the Provider any written materials containing Confidential\nInformation of the Provider, the Recipient may destroy such written\n2\nmaterials and deliver to the Provider written confirmation of their destruction. Notwithstanding the foregoing, Recipient and its Representatives\nshall (i) be permitted to retain copies of the Confidential Information in accordance with policies and procedures implemented by Recipient or\nsuch Representatives, as the case may be, in order to comply with applicable law, regulation or professional standards, or for actual or anticipated\nlitigation, and (ii) not be required to destroy any computer records or files containing Confidential Information that have been created pursuant to\narchiving and back-up procedures. Notwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information\nof the Provider pursuant to this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and\nother obligations under this Agreement.\n6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, Insight agrees that it will\nnot and will not permit any of its Representatives or any direct or indirect subsidiary of Insight to solicit for employment with Insight or with any\nof its direct or indirect subsidiaries any employee of the E2open or any subsidiary of E2open; provided, however, that this Section 6 will not\nprevent Insight or its direct or indirect subsidiaries from causing to be placed any general advertisement or similar notice that is not targeted\nspecifically at employees of the E2open or its subsidiaries.\n7. Standstill Provision for E2open.\n(a) During the 12 month period commencing on the date of this Agreement (the "Standstill Period"), neither Insight nor any of\nInsight's Representatives on behalf of Insight will, in any manner, directly or indirectly:\n(i) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of E2open or any\nsecurities (including derivatives thereof) of any subsidiary or other affiliate of E2open, (ii) any acquisition of any assets of E2open or any assets\nof any subsidiary, division or other affiliate of E2open, (iii) any tender offer, exchange offer, merger, business combination, recapitalization,\nrestructuring, liquidation, dissolution or extraordinary transaction involving E2open or any subsidiary or other affiliate of E2open or involving\nany securities or assets of E2open or any securities or assets of any subsidiary, division or other affiliate of E2open, or (iv) any "solicitation"\nof\n"proxies" (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of\nE2open;\n(ii) form, join or participate in a "group" (as defined in the Securities Exchange Act of 1934, as amended, and the rules\npromulgated thereunder) with respect to the beneficial ownership of any securities of E2open or any subsidiary or division of E2open;\n(iii) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies\nof\nE2open;\n(iv) take any action that might require E2open to make a public announcement regarding any of the types of matters set forth\nin clause "(a)" of this sentence;\n(v) agree or offer to take, or seek, encourage or propose (publicly or otherwise) the taking of, any action referred to in clause\n"(a)", "(b)", "(c)" or "(d)" of this sentence;\n(vi) assist, induce or encourage any other Person to take any action of the type referred to in clause "(i)", "(ii)", "(iii)", "(iv)"\nor "(v)" of this sentence; or\n(vii) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the\nforegoing.\n3\n(b)\nNotwithstanding anything herein to the contrary, nothing in this Section 7 shall restrict Insight from making any proposal\nregarding a transaction directly to the board of directors of E2open on a confidential basis if such proposal would not reasonably be expected to\nrequire E2open to make a public announcement regarding this Agreement, a transaction or any of the matters described in this Section 7.\n(c) In the event that E2open enters into a definitive agreement with any other person involving an acquisition of a majority of the\noutstanding securities (by way of merger, or otherwise) or all or substantially all of the assets of E2open to a third party or such transaction has\nbeen publicly announced, Insight shall be released from any and all of the restrictions and obligations contained in this Section 7.\n8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter\ninto any such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it\ndeems appropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such\nprocess without giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party's\nRepresentatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any\ntime. Each Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after\nthe date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or\ntransaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other\nParty's Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this\nAgreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or\nfuture exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived\nor amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the\nparticular provision or provisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such\nParty or by any of such Party's Representatives and that the other Party would suffer irreparable harm as a result of any such breach.\nAccordingly, each Party will also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach\nor\nthreatened breach of this Agreement by the other Party or any of the other Party's Representatives. Each Party further agrees not to raise, as a\ndefense or objection to the request or granting of such equitable relief, that any breach of this Agreement is or would be compensable by an\naward of money damages, and each Party agrees to waive any requirements for the securing or posting of any bond in connection with such\nremedy. The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will\nbe in addition to all other remedies available at law or in equity to the Parties. In the event of litigation relating to this Agreement, if a court\nof\ncompetent jurisdiction determines in a final, non-appealable judgment, that either Party or any of its Representatives has breached this\nAgreement, such Party will pay to the other Party, the reasonable legal fees incurred by the other Party in connection with such litigation\n(including any appeal relating thereto).\n4\n11. Trading in Securities. The Recipient acknowledges and agrees that it is aware (and that the Recipient's Representatives are aware or\nwill be advised by the Recipient) that Confidential Information being furnished by the Provider may contain material, non-public information\nregarding the Provider and that the United States securities laws prohibit any Person who has such material, non-public information from\npurchasing\nor selling securities of the Provider on the basis of such information or from communicating such information to any Person under\ncircumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such securities on the basis of such information.\n12. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of\neach Party and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with the laws of\nthe State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and\nsubmits to the jurisdiction of the state and federal courts located in the State of Delaware purposes of any action, suit or proceeding arising out of\nor relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth\nopposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or proceeding brought\nagainst such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out\nof or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and unconditionally waives the\nright to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or\nrelating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient\nforum.\n13. Confidential Information. For purposes of this Agreement, the Provider's "Confidential Information" will be deemed to include the\nfollowing:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget,\nforecast or projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other\naffiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has at\nany time been made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative\nof the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or\nhas been prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or\nindirectly upon any information of the type referred to in clause "(a)" of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause "(a)" of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and\nthe proposed terms of any such transaction.\nHowever, the Provider's "Confidential Information" will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure\nof any of such information by the Recipient or by any of the Recipient's Representatives;\n(ii) any information that was in the Recipient's possession prior to the time it was first made available to the Recipient or any of\nthe Recipient's Representatives by or on behalf of the Provider or any of the Provider's Representatives, provided that the source of such\n5\ninformation was not and is not known to the Recipient (after reasonable inquiry) to be bound by any contractual or other obligation of\nconfidentiality to the Provider or to any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient from a source other than the Provider or any of the Provider's\nRepresentatives, provided that such source is not known to the Recipient (after reasonable inquiry) to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential\nInformation and without reference to or use of Confidential Information.\n14. Co-Bidders and Financing Sources\nWithout limiting anything in this Agreement, Insight agrees that it will not directly or indirectly (i) approach or team, co-venture, club or\notherwise partner with any person or firm that may be interested in participating in a transaction with E2open as a principal, co-investor, CO-\nbidder or financing source, (ii) engage in any discussions which might lead to, or enter into, any agreement, arrangement or understanding with\nany such person or firm; provided, however, that subject to the written pre-approval of the Company and subject to Section 15(a) below, Insight\nmay contact and/or utilize pre-approved debt financing sources in connection with the potential negotiated transaction between the Parties,\n(iii) enter into any agreement, arrangement or understanding with any such person or firm to provide Insight or one or more of its affiliates with\ndebt financing (or other potential sources of debt capital) on an exclusive basis, or that would have the effect of preventing, impairing or\notherwise limiting the ability of any such person or firm to provide debt financing (or other potential sources of debt capital) to any other person\nin connection with a transaction involving the Company, (iv) have any discussions or other communications, or enter into any agreements\nor\nother arrangements or understandings, with any third party (other than its Representatives) with respect to (A) whether or not Insight will make\nan offer or proposal to acquire the Company or enter into any other transaction with the Company, or (B) the price that Insight may offer for the\nCompany or any valuation that Insight may ascribe to the Company (either on a stand-alone basis or as a result of any such transaction)\nor\n(v) have any formal or informal discussions, or enter into any agreement, arrangement or understanding (whether or not binding), with any\nstockholder, director, officer or other employee of the Company relating to a transaction with the Company or to the Company (including any\ndirect or indirect parent company or other affiliate thereof) or any of its businesses or operations from and after the consummation of such a\ntransaction, including, without limitation, as to continued equity or other investment interests in the Company (or any direct or indirect parent\ncompany or other affiliate thereof), whether by way of a "rollover" of existing investment interests or the making of new investments, or as\nto\nemployment with or consulting services to the Company (or an direct or indirect parent company or other affiliate thereof).\n15. Miscellaneous.\n(a) For purposes of this Agreement, a Party's "Representatives" will be deemed to include each Person that is or becomes (i) a\nsubsidiary of such Party, (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any\nof such Party's subsidiaries or affiliates (excluding any affiliated portfolio companies) or (iii) only upon prior written approval of E2open,\na\npotential debt financing source to be used by Insight in connection with a potential negotiated transaction between the Parties, provided that any\ndebt financing source enters into a confidentiality agreement with Insight that includes obligations relating to E2open's Confidential Information\nthat are at least as restrictive as the obligations in this Agreement (and providing that E2open shall be a third party beneficiary thereof).\nRepresentatives shall not include any potential principal, co-investor, co-bidder, provider of equity capital that is not any equity fund affiliated\nwith Insight, any proposed joint buyer in a possible negotiated transaction with E2open or a debt financing source that is not pre-approved in\nwriting by E2open.\n6\n(b) The term "Person," as used in this Agreement, will be broadly interpreted to include any individual and any corporation,\npartnership, entity, group, tribunal or governmental authority.\n(c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken\ninto account in the interpretation of this Agreement.\n(d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any\nother situation or in any other jurisdiction.\n(e) By making Confidential Information or other information available to the Recipient or the Recipient's Representatives, the\nProvider is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any\npatent, trade secret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient's\nRepresentatives shall file any patent application containing any claim to any subject matter derived from the Confidential Information of the\nProvider.\n(f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending,\nthreatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a\ncommonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it\nis the Parties' mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not,\naffect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or\nother information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all\nConfidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or\ndoctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree\nto\ntake all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n(g) It is acknowledged and agreed that Insight and its affiliates are involved in a variety of businesses and may have acquired (or\ninvested in), or may acquire (or invest in), directly or indirectly, other businesses which do, or may, compete with E2open. For the avoidance of\ndoubt, subject to compliance with the terms hereof, nothing in this Agreement is intended to limit Insight's or its affiliates' ability to acquire\nor\ninvest in such other businesses.\n(h) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof. The terms of this Agreement shall\ncontrol over any additional purported confidentiality requirements imposed by any offering memorandum, web-based database or similar\nrepository of Confidential Information to which the Recipient or any of its Representatives is granted access in connection with a transaction,\nnotwithstanding acceptance of such an offering memorandum or submission of an electronic signature, "clicking" on an "I Agree" icon or other\nindication of assent to such additional confidentiality conditions, it being understood and agreed that the Recipient's and its Representatives'\nconfidentiality obligations with respect to Confidential Information are exclusively governed by this Agreement and may not be enlarged except\nby a written agreement that is hereafter executed by each of the parties hereto.\n7\n(i) This Agreement shall continue in full force and effect for a period of two years from the effective date of this Agreement. Nothing\nherein is intended to limit or abridge the protection of trade secrets under applicable trade secrets law, and the protection of trade secrets by the\nRecipient shall be maintained as such until they fall into the public domain.\n(j) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any\nproducts utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or\nregulations.\n(k) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related\nhereto, including legal notices, shall be in the English language only.\n(k) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transaction or\nby facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.\nThe parties have caused this Agreement to be executed as of November 26, 2014.\nE2OPEN, INC.\nINSIGHT VENTURE PARTNERS, LLC\nBy:\n/s/ Peter Maloney\nBy:\n/s/ Eric Goldstein\nTitle: CFO\nTitle: Deputy General Counsel / Chief Compliance Officer\nAddress: 4100 East Third Avenue, Suite 400\nAddress: 1114 Avenue of the Americas\nFoster City, CA 94404\nNew York, NY 10036\n8\nEXHIBIT A\nPROVIDER CONTACT PERSON\nE2OPEN:\nMARK WOODWARD (CEO)\nPETER MALONEY (CFO)\nSCoTT MILLER (GENERAL COUNSEL)\n9 EX-99.(D)(2) 8 d875156dex99d2.htm EXHIBIT (D)(2)\nExhibit (d)(2)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of November 26, 2014 between E2open, Inc., a Delaware\ncorporation (“E2open”) and Insight Venture Partners, LLC (“Insight”).\nIn order to facilitate the consideration and negotiation of a possible negotiated transaction involving E2open and Insight (or one or more of\nits affiliates) (E2open and Insight referred to collectively as the “Parties” and individually as a “Party”), each Party has either requested or may\nrequest access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a\nprovider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is\nreferred to in this Agreement as the “Recipient”.) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such\ninformation and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 4 below, neither the Recipient nor any of the\nRecipient’s Representatives (as defined in Section 15 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider ’s Confidential Information (as defined in Section 13 below), except for the specific purpose of\nconsidering, evaluating, negotiating and implementing a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 15 below).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or\nconduct on the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own\nexpense) take actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider ’s\nConfidential Information.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential\nInformation must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A or any investment banks or outside\nlegal counsel retained by the Provider in connection with the possible transaction (the “Provider Contact Person”). Neither the Recipient nor\nany of the Recipient’s Representatives will contact or otherwise communicate with any other Representative or employee of the Provider in\nconnection with a possible transaction without the prior written authorization of the Provider Contact Person.\n3. No Representations by Provider. The Provider Contact Person will have the exclusive authority to decide what Confidential\nInformation (if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of the\nProvider ’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the\nRecipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously\nfurnished. Neither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the\naccuracy or completeness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any\nliability to the Recipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United\nStates federal or state securities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any\ninaccuracies or errors therein or omissions therefrom. The Recipient and its Representatives are not\n1\nentitled to, and will not, rely on the accuracy or completeness of any of the Provider’s Confidential Information. Only those representations and\nwarranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction\nbetween the Parties (or one or more of their respective affiliates) and is validly executed on behalf of the Parties or such affiliates (a “Definitive\nAgreement”) will have legal effect. For purposes of this Agreement, the term “Definitive Agreement” does not include an executed letter of\nintent, term sheet or any other preliminary written agreement (whether or not binding in whole or in part). The Provider and its Representatives\nexpressly disclaim any duty (express or implied) to update, supplement or correct any of the Provider’s Confidential Information regardless of\nthe circumstances.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient’s disclosure thereof, provided such consent is sought prior to any such disclosure;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative (A) reasonably needs to know such Confidential Information for the purpose of\nevaluating, negotiating or implementing a possible negotiated transaction between the Parties (or one or more of their affiliates), and\n(B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the provisions hereof or is otherwise bound\nby confidentiality obligations at least as restrictive as those contained in this Agreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process.\n(b) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other\nvalid legal process to disclose any of the Provider ’s Confidential Information to any Person, then the Recipient will, to the extent not prohibited\nby law, promptly provide the Provider with written notice of the applicable law, regulation or process so that the Provider may seek a protective\norder or other appropriate remedy. The Recipient and its Representatives will reasonably cooperate with the Provider and the Provider’s\nRepresentatives in any attempt by the Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is\nunsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential\nInformation of the Provider, then the Recipient may disclose such Confidential Information to the extent required; provided, however, that the\nRecipient and its Representatives will use their reasonable best efforts to ensure that such Confidential Information is treated confidentially by\neach Person to whom it is disclosed. Notwithstanding the foregoing, Recipient and its Representatives (a) may disclose Confidential Information\nin connection with routine supervisory audit or regulatory examinations (including, without limitation, by regulatory or self-regulatory bodies) to\nwhich they are subject in the course of their respective businesses without liability hereunder and (b) shall not be required to provide notice to\nany party in the course of any such routine supervisory audit or regulatory examination, provided that such routine audit or examination does not\nspecifically target the Provider or the Confidential Information.\n5. Return of Confidential Information. Upon the Provider ’s written request, the Recipient and the Recipient’s Representatives will\npromptly deliver to the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or\nany of the Recipient’s Representatives; provided, however, that, in lieu of delivering to the Provider any written materials containing Confidential\nInformation of the Provider, the Recipient may destroy such written\n2\nmaterials and deliver to the Provider written confirmation of their destruction. Notwithstanding the foregoing, Recipient and its Representatives\nshall (i) be permitted to retain copies of the Confidential Information in accordance with policies and procedures implemented by Recipient or\nsuch Representatives, as the case may be, in order to comply with applicable law, regulation or professional standards, or for actual or anticipated\nlitigation, and (ii) not be required to destroy any computer records or files containing Confidential Information that have been created pursuant to\narchiving and back-up procedures. Notwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information\nof the Provider pursuant to this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and\nother obligations under this Agreement.\n6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, Insight agrees that it will\nnot and will not permit any of its Representatives or any direct or indirect subsidiary of Insight to solicit for employment with Insight or with any\nof its direct or indirect subsidiaries any employee of the E2open or any subsidiary of E2open; provided, however, that this Section 6 will not\nprevent Insight or its direct or indirect subsidiaries from causing to be placed any general advertisement or similar notice that is not targeted\nspecifically at employees of the E2open or its subsidiaries.\n7. Standstill Provision for E2open.\n(a) During the 12 month period commencing on the date of this Agreement (the “Standstill Period”), neither Insight nor any of\nInsight’s Representatives on behalf of Insight will, in any manner, directly or indirectly:\n(i) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of E2open or any\nsecurities (including derivatives thereof) of any subsidiary or other affiliate of E2open, (ii) any acquisition of any assets of E2open or any assets\nof any subsidiary, division or other affiliate of E2open, (iii) any tender offer, exchange offer, merger, business combination, recapitalization,\nrestructuring, liquidation, dissolution or extraordinary transaction involving E2open or any subsidiary or other affiliate of E2open or involving\nany securities or assets of E2open or any securities or assets of any subsidiary, division or other affiliate of E2open, or (iv) any “solicitation” of\n“proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of\nE2open;\n(ii) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934, as amended, and the rules\npromulgated thereunder) with respect to the beneficial ownership of any securities of E2open or any subsidiary or division of E2open;\n(iii) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of\nE2open;\n(iv) take any action that might require E2open to make a public announcement regarding any of the types of matters set forth\nin clause “(a)” of this sentence;\n(v) agree or offer to take, or seek, encourage or propose (publicly or otherwise) the taking of, any action referred to in clause\n“(a)”, “(b)”, “(c)” or “(d)” of this sentence;\n(vi) assist, induce or encourage any other Person to take any action of the type referred to in clause “(i)”, “(ii)”, “(iii)”, “(iv)”\nor “(v)” of this sentence; or\n(vii) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing.\n3\n(b) Notwithstanding anything herein to the contrary, nothing in this Section 7 shall restrict Insight from making any proposal\nregarding a transaction directly to the board of directors of E2open on a confidential basis if such proposal would not reasonably be expected to\nrequire E2open to make a public announcement regarding this Agreement, a transaction or any of the matters described in this Section 7.\n(c) In the event that E2open enters into a definitive agreement with any other person involving an acquisition of a majority of the\noutstanding securities (by way of merger, or otherwise) or all or substantially all of the assets of E2open to a third party or such transaction has\nbeen publicly announced, Insight shall be released from any and all of the restrictions and obligations contained in this Section 7.\n8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter\ninto any such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it\ndeems appropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such\nprocess without giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s\nRepresentatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any\ntime. Each Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after\nthe date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or\ntransaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other\nParty’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this\nAgreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or\nfuture exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived\nor amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the\nparticular provision or provisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such\nParty or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach.\nAccordingly, each Party will also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or\nthreatened breach of this Agreement by the other Party or any of the other Party’s Representatives. Each Party further agrees not to raise, as a\ndefense or objection to the request or granting of such equitable relief, that any breach of this Agreement is or would be compensable by an\naward of money damages, and each Party agrees to waive any requirements for the securing or posting of any bond in connection with such\nremedy. The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will\nbe in addition to all other remedies available at law or in equity to the Parties. In the event of litigation relating to this Agreement, if a court of\ncompetent jurisdiction determines in a final, non-appealable judgment, that either Party or any of its Representatives has breached this\nAgreement, such Party will pay to the other Party, the reasonable legal fees incurred by the other Party in connection with such litigation\n(including any appeal relating thereto).\n4\n11. Trading in Securities. The Recipient acknowledges and agrees that it is aware (and that the Recipient’s Representatives are aware or\nwill be advised by the Recipient) that Confidential Information being furnished by the Provider may contain material, non-public information\nregarding the Provider and that the United States securities laws prohibit any Person who has such material, non-public information from\npurchasing or selling securities of the Provider on the basis of such information or from communicating such information to any Person under\ncircumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such securities on the basis of such information.\n12. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of\neach Party and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with the laws of\nthe State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and\nsubmits to the jurisdiction of the state and federal courts located in the State of Delaware purposes of any action, suit or proceeding arising out of\nor relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth\nopposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or proceeding brought\nagainst such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out\nof or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and unconditionally waives the\nright to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or\nrelating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient\nforum.\n13. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include the\nfollowing:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget,\nforecast or projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other\naffiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has at\nany time been made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative\nof the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or\nhas been prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or\nindirectly upon any information of the type referred to in clause “(a)” of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and\nthe proposed terms of any such transaction.\nHowever, the Provider ’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure\nof any of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of\nthe Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such\n5\ninformation was not and is not known to the Recipient (after reasonable inquiry) to be bound by any contractual or other obligation of\nconfidentiality to the Provider or to any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient from a source other than the Provider or any of the Provider’s\nRepresentatives, provided that such source is not known to the Recipient (after reasonable inquiry) to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential\nInformation and without reference to or use of Confidential Information.\n14. Co-Bidders and Financing Sources\nWithout limiting anything in this Agreement, Insight agrees that it will not directly or indirectly (i) approach or team, co-venture, club or\notherwise partner with any person or firm that may be interested in participating in a transaction with E2open as a principal, co-investor, co-\nbidder or financing source, (ii) engage in any discussions which might lead to, or enter into, any agreement, arrangement or understanding with\nany such person or firm; provided, however, that subject to the written pre-approval of the Company and subject to Section 15(a) below, Insight\nmay contact and/or utilize pre-approved debt financing sources in connection with the potential negotiated transaction between the Parties,\n(iii) enter into any agreement, arrangement or understanding with any such person or firm to provide Insight or one or more of its affiliates with\ndebt financing (or other potential sources of debt capital) on an exclusive basis, or that would have the effect of preventing, impairing or\notherwise limiting the ability of any such person or firm to provide debt financing (or other potential sources of debt capital) to any other person\nin connection with a transaction involving the Company, (iv) have any discussions or other communications, or enter into any agreements or\nother arrangements or understandings, with any third party (other than its Representatives) with respect to (A) whether or not Insight will make\nan offer or proposal to acquire the Company or enter into any other transaction with the Company, or (B) the price that Insight may offer for the\nCompany or any valuation that Insight may ascribe to the Company (either on a stand-alone basis or as a result of any such transaction) or\n(v) have any formal or informal discussions, or enter into any agreement, arrangement or understanding (whether or not binding), with any\nstockholder, director, officer or other employee of the Company relating to a transaction with the Company or to the Company (including any\ndirect or indirect parent company or other affiliate thereof) or any of its businesses or operations from and after the consummation of such a\ntransaction, including, without limitation, as to continued equity or other investment interests in the Company (or any direct or indirect parent\ncompany or other affiliate thereof), whether by way of a “rollover” of existing investment interests or the making of new investments, or as to\nemployment with or consulting services to the Company (or an direct or indirect parent company or other affiliate thereof).\n15. Miscellaneous.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a\nsubsidiary of such Party, (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any\nof such Party’s subsidiaries or affiliates (excluding any affiliated portfolio companies) or (iii) only upon prior written approval of E2open, a\npotential debt financing source to be used by Insight in connection with a potential negotiated transaction between the Parties, provided that any\ndebt financing source enters into a confidentiality agreement with Insight that includes obligations relating to E2open’s Confidential Information\nthat are at least as restrictive as the obligations in this Agreement (and providing that E2open shall be a third party beneficiary thereof).\nRepresentatives shall not include any potential principal, co-investor, co-bidder, provider of equity capital that is not any equity fund affiliated\nwith Insight, any proposed joint buyer in a possible negotiated transaction with E2open or a debt financing source that is not pre-approved in\nwriting by E2open.\n6\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation,\npartnership, entity, group, tribunal or governmental authority.\n(c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken\ninto account in the interpretation of this Agreement.\n(d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any\nother situation or in any other jurisdiction.\n(e) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the\nProvider is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any\npatent, trade secret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s\nRepresentatives shall file any patent application containing any claim to any subject matter derived from the Confidential Information of the\nProvider.\n(f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending,\nthreatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a\ncommonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it\nis the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not,\naffect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or\nother information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all\nConfidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or\ndoctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to\ntake all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n(g) It is acknowledged and agreed that Insight and its affiliates are involved in a variety of businesses and may have acquired (or\ninvested in), or may acquire (or invest in), directly or indirectly, other businesses which do, or may, compete with E2open. For the avoidance of\ndoubt, subject to compliance with the terms hereof, nothing in this Agreement is intended to limit Insight’s or its affiliates’ ability to acquire or\ninvest in such other businesses.\n(h) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof. The terms of this Agreement shall\ncontrol over any additional purported confidentiality requirements imposed by any offering memorandum, web-based database or similar\nrepository of Confidential Information to which the Recipient or any of its Representatives is granted access in connection with a transaction,\nnotwithstanding acceptance of such an offering memorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other\nindication of assent to such additional confidentiality conditions, it being understood and agreed that the Recipient’s and its Representatives’\nconfidentiality obligations with respect to Confidential Information are exclusively governed by this Agreement and may not be enlarged except\nby a written agreement that is hereafter executed by each of the parties hereto.\n7\n(i) This Agreement shall continue in full force and effect for a period of two years from the effective date of this Agreement. Nothing\nherein is intended to limit or abridge the protection of trade secrets under applicable trade secrets law, and the protection of trade secrets by the\nRecipient shall be maintained as such until they fall into the public domain.\n(j) The Recipient agrees not to export, directly or indirectly, any U.S . source technical data acquired from the Provider or any\nproducts utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or\nregulations.\n(k) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related\nhereto, including legal notices, shall be in the English language only.\n(k) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transaction or\nby facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.\nThe parties have caused this Agreement to be executed as of November 26, 2014.\nE2OPEN, INC.\nINSIGHT VENTURE PARTNERS, LLC\nBy: /s/ Peter Maloney\nBy: /s/ Eric Goldstein\nTitle: CFO\nTitle: Deputy General Counsel / Chief Compliance Officer\nAddress: 4100 East Third Avenue, Suite 400\nFoster City, CA 94404\nAddress: 1114 Avenue of the Americas\nNew York, NY 10036\n8\nEXHIBIT A\nPROVIDER CONTACT PERSON\nE2OPEN:\nMARK WOODWARD (CEO)\nPETER MALONEY (CFO)\nSCOTT MILLER (GENERAL COUNSEL)\n9 98139c00032e1383c5576cf950f29bff.pdf effective_date jurisdiction party term 13 ADDENDUM 7 NON-DISCLOSURE AGREEMENT This non-disclosure agreement (the "AGREEMENT") is\nentered into this 16TH DAY OF MARCH, 1999 by ACUMED, INC. (the "DISCLOSING PARTY") and MEDEX\nSURGICAL, its PRINCIPALS, MANAGEMENT and STAFF (the "RECEIVING PARTY") for the purpose of\npreventing the unauthorized disclosure of Confidential Information (as defined below) of the Disclosing Party which may\nbe disclosed to the Receiving Party for the purpose of pursuing the establishment of a business relationship or negotiating\nany contract or agreement between the Disclosing Party and the Receiving Party. For purposes of the agreement,\nConfidential Information shall mean any and all information relating to Acumed Products and Pricing. In consideration\nof the Disclosing Party's disclosure of Confidential Information to the Receiving Party, the Receiving Party hereby agrees\nas follows: 1. The Receiving Party shall hold and maintain the Confidential Information in strictest confidence and in\ntrust for the sole and exclusive benefit of the Disclosing party. 2. The Receiving Party shall not, without the prior written\napproval of the Disclosing Party, use for its own benefit, publish or otherwise disclose to others, or permit the use by\nothers for their benefit or to the detriment of the Disclosing party, any of the Confidential Information. 3. The Receiving\nParty shall carefully restrict access to the Confidential Information to those of its officers, directors and employees who\nclearly need such access in order to participate on the behalf of the Receiving Party in the analysis and negotiation of a\nbusiness relationship or any contract or agreement, or the advisability thereof, with the Disclosing Party. The Receiving\nParty further warrants and represents that it will advise each of the persons to whom it provides access to any of the\nConfidential Information pursuant to the foregoing sentence that such persons are strictly prohibited from making use,\npublishing or otherwise disclosing to others or permitting others to use for their benefit or to the detriment of the\nDisclosing Party, any of the Confidential Information. 4. The Receiving Party shall take actions necessary to protect the\nconfidentiality of the Confidental Information except for its disclosure pursuant to paragraph 3 above, and hereby\nindemnifies the Disclosing Party against any and all losses, damages, claims or expenses incurred or suffered by the\nDisclosing Party as a result of the Receiving Party's breach of this Agreement. 5. This agreement shall continue in full\nforce and effect indefinitely, except that the Receiving Party's obligations hereunder shall not extend to any of the\nConfidential Information which the Receiving Party can demonstrate was in the public domain on the date of this\nAgreement. 6. The Receiving Party understands and acknowledges that any disclosure or misappropriation of any of the\nConfidential Information in violation of this Agreement may cause the disclosing Party irreparable harm, the amount of\nwhich may be difficult to ascertain and, therefore, agrees that the Disclosing Party shall have the right to apply to a court\nof competent jurisdiction for an order restraining any such further disclosure or misappropriation and for such other relief\nas the Disclosing Party shall deem appropriate, such right of the Disclosing Party to be in addition to the remedies\notherwise available to the Disclosing Party at law or in equity. 7. The Receiving Party shall return to the Disclosing Party\nany and all records, notes and other written, printed or tangible materials pertaining to the Confidential Information\nimmediately upon written request of the Disclosing Party. 14 8. This Agreement and the Receiving Party's obligations\nhereunder shall be binding upon the representatives, assigns and successors of the Receiving Party and shall inure to the\nbenefit of the assigns and successors of the Disclosing Party. 9. The Agreement shall be governed by and construed in\naccordance with internal laws of the State of Oregon. 10. If any action at law or inequity is brought to enforce or interpret\nthe provisions of this Agreement, the prevailing party in such action shall be entitled to reasonable attorney's fees. 11.\nThe Agreement constitutes the sole understanding of the parties with respect to the subject matter hereof and may not be\namended or modified except in writing signed by each of the parties hereto. -------------------------- IN WITNESS\nWHEREOF, the parties hereto have entered into this Agreement on the date set forth above. Disclosing Party: Receiving\nParty: Acumed, Inc. Medex Surgical ---------------------------- ---------------------------- By: Randall Huebner By: Bob\nKraus Ed Kraus ------------------------- ------------------------- /s/ Randall Huebner /s/ Bob Kraus /s/ Ed Kraus\n---------------------------- ---------------------------- Signature Signature Its: President Its: Co-Presidents ------------------------\n-- -- - -- - -- - -- - -- - -- - -- - - Title Title Date: 3-17-99 Date: 3/15/99 ----------------------- ------------------------- 13 ADDENDUM 7 NON-DISCLOSURE AGREEMENT This non-disclosure agreement (the "AGREEMENT") is\nentered into this 16TH DAY OF MARCH, 1999 by ACUMED, INC. (the "DISCLOSING PARTY") and MEDEX\nSURGICAL, its PRINCIPALS, MANAGEMENT and STAFF (the "RECEIVING PARTY") for the purpose of\npreventing the unauthorized disclosure of Confidential Information (as defined below) of the Disclosing Party which may\nbe disclosed to the Receiving Party for the purpose of pursuing the establishment of a business relationship or negotiating\nany contract or agreement between the Disclosing Party and the Receiving Party. For purposes of the agreement,\nConfidential Information shall mean any and all information relating to Acumed Products and Pricing. In consideration\nof the Disclosing Party's disclosure of Confidential Information to the Receiving Party, the Receiving Party hereby agrees\nas follows: 1. The Receiving Party shall hold and maintain the Confidential Information in strictest confidence and in\ntrust for the sole and exclusive benefit of the Disclosing party. 2. The Receiving Party shall not, without the prior written\napproval of the Disclosing Party, use for its own benefit, publish or otherwise disclose to others, or permit the use by\nothers for their benefit or to the detriment of the Disclosing party, any of the Confidential Information. 3. The Receiving\nParty shall carefully restrict access to the Confidential Information to those of its officers, directors and employees who\nclearly need such access in order to participate on the behalf of the Receiving Party in the analysis and negotiation of a\nbusiness relationship or any contract or agreement, or the advisability thereof, with the Disclosing Party. The Receiving\nParty further warrants and represents that it will advise each of the persons to whom it provides access to any of the\nConfidential Information pursuant to the foregoing sentence that such persons are strictly prohibited from making use,\npublishing or otherwise disclosing to others or permitting others to use for their benefit or to the detriment of the\nDisclosing Party, any of the Confidential Information. 4. The Receiving Party shall take actions necessary to protect the\nconfidentiality of the Confidental Information except for its disclosure pursuant to paragraph 3 above, and hereby\nindemnifies the Disclosing Party against any and all losses, damages, claims or expenses incurred or suffered by the\nDisclosing Party as a result of the Receiving Party's breach of this Agreement. 5. This agreement shall continue in full\nforce and effect indefinitely, except that the Receiving Party's obligations hereunder shall not extend to any of the\nConfidential Information which the Receiving Party can demonstrate was in the public domain on the date of this\nAgreement. 6. The Receiving Party understands and acknowledges that any disclosure or misappropriation of any of the\nConfidential Information in violation of this Agreement may cause the disclosing Party irreparable harm, the amount of\nwhich may be difficult to ascertain and, therefore, agrees that the Disclosing Party shall have the right to apply to a court\nof competent jurisdiction for an order restraining any such further disclosure or misappropriation and for such other relief\nas the Disclosing Party shall deem appropriate, such right of the Disclosing Party to be in addition to the remedies\notherwise available to the Disclosing Party at law or in equity. 7. The Receiving Party shall return to the Disclosing Party\nany and all records, notes and other written, printed or tangible materials pertaining to the Confidential Information\nimmediately upon written request of the Disclosing Party. 14 8. This Agreement and the Receiving Party's obligations\nhereunder shall be binding upon the representatives, assigns and successors of the Receiving Party and shall inure to the\nbenefit of the assigns and successors of the Disclosing Party. 9. The Agreement shall be governed by and construed in\naccordance with internal laws of the State of Oregon. 10. If any action at law or inequity is brought to enforce or interpret\nthe provisions of this Agreement, the prevailing party in such action shall be entitled to reasonable attorney's fees. 11.\nThe Agreement constitutes the sole understanding of the parties with respect to the subject matter hereof and may not be\namended or modified except in writing signed by each of the parties hereto. ----------=-===-==-eeeueeo IN WITNESS\nWHEREOF, the parties hereto have entered into this Agreement on the date set forth above. Disclosing Party: Receiving\nParty: Acumed, Inc. Medex Surgical --------=====mmmmmmmm e e By: Randall Huebner By: Bob\nKraus Ed Kraus -------=--=-=-=mmmm oo oo /s/ Randall Huebner /s/ Bob Kraus /s/ Ed Kraus\n-------------------------------------------------------- Signature Signature Its: President Its: Co-Presidents ------------------------\n------------------------ Title Title Date: 3-17-99 Date: 3/15/99 —-----mnmmmmmmm oo e 13 ADDENDUM 7 NON-DISCLOSURE AGREEMENT This non-disclosure agreement (the "AGREEMENT") is\nentered into this 16TH DAY OF MARCH, 1999 by ACUMED, INC. (the "DISCLOSING PARTY") and MEDEX\nSURGICAL, its PRINCIPALS, MANAGEMENT and STAFF (the "RECEIVING PARTY") for the purpose of\npreventing the unauthorized disclosure of Confidential Information (as defined below) of the Disclosing Party which may\nbe disclosed to the Receiving Party for the purpose of pursuing the establishment of a business relationship or negotiating\nany contract or agreement between the Disclosing Party and the Receiving Party. For purposes of the agreement,\nConfidential Information shall mean any and all information relating to Acumed Products and Pricing. In consideration\nof the Disclosing Party's disclosure of Confidential Information to the Receiving Party, the Receiving Party hereby agrees\nas follows: 1. The Receiving Party shall hold and maintain the Confidential Information in strictest confidence and in\ntrust for the sole and exclusive benefit of the Disclosing party. 2. The Receiving Party shall not, without the prior written\napproval of the Disclosing Party, use for its own benefit, publish or otherwise disclose to others, or permit the use by\nothers for their benefit or to the detriment of the Disclosing party, any of the Confidential Information. 3. The Receiving\nParty shall carefully restrict access to the Confidential Information to those of its officers, directors and employees who\nclearly need such access in order to participate on the behalf of the Receiving Party in the analysis and negotiation of\na\nbusiness relationship or any contract or agreement, or the advisability thereof, with the Disclosing Party. The Receiving\nParty\nfurther\nwarrants\nand\nrepresents\nthat\nit\nwill\nadvise\neach\nof\nthe\npersons\nto\nwhom\nit\nprovides\naccess\nto\nany\nof\nthe\nConfidential Information pursuant to the foregoing sentence that such persons are strictly prohibited from making use,\npublishing or otherwise disclosing to others or permitting others to use for their benefit or to the detriment of the\nDisclosing Party, any of the Confidential Information. 4. The Receiving Party shall take actions necessary to protect\nthe\nconfidentiality of the Confidental Information except for its disclosure pursuant to paragraph 3 above, and hereby\nindemnifies the Disclosing Party against any and all losses, damages, claims or expenses incurred or suffered by the\nDisclosing Party as a result of the Receiving Party's breach of this Agreement. 5. This agreement shall continue in full\nforce and effect indefinitely, except that the Receiving Party's obligations hereunder shall not extend to any of the\nConfidential Information which the Receiving Party can demonstrate was in the public domain on the date of this\nAgreement. 6. The Receiving Party understands and acknowledges that any disclosure or misappropriation of any of the\nConfidential Information in violation of this Agreement may cause the disclosing Party irreparable harm, the amount of\nwhich may be difficult to ascertain and, therefore, agrees that the Disclosing Party shall have the right to apply to a court\nof competent jurisdiction for an order restraining any such further disclosure or misappropriation and for such other relief\nas the Disclosing Party shall deem appropriate, such right of the Disclosing Party to be in addition to the remedies\notherwise available to the Disclosing Party at law or in equity. 7. The Receiving Party shall return to the Disclosing\nParty\nany and all records, notes and other written, printed or tangible materials pertaining to the Confidential Information\nimmediately upon written request of the Disclosing Party. 14 8. This Agreement and the Receiving Party's obligations\nhereunder shall be binding upon the representatives, assigns and successors of the Receiving Party and shall inure to the\nbenefit of the assigns and successors of the Disclosing Party. 9. The Agreement shall be governed by and construed in\naccordance with internal laws of the State of Oregon. 10. If any action at law or inequity is brought to enforce or interpret\nthe provisions of this Agreement, the prevailing party in such action shall be entitled to reasonable attorney's fees. 11.\nThe Agreement constitutes the sole understanding of the parties with respect to the subject matter hereof and may not be\namended or modified except in writing signed by each of the parties hereto.\nIN WITNESS\nWHEREOF, the parties hereto have entered into this Agreement on the date set forth above. Disclosing Party: Receiving\nParty: Acumed, Inc. Medex Surgical\nBy: Randall Huebner By: Bob\nKraus Ed Kraus\n/s/ Randall Huebner /s/ Bob Kraus /s/ Ed Kraus\nSignature Signature Its: President Its: Co-Presidents\nTitle Title Date: 3-17-99 Date: 3/15/99 13 ADDENDUM 7 NON-DISCLOSURE AGREEMENT This non-disclosure agreement (the "AGREEMENT") is\nentered into this 16TH DAY OF MARCH, 1999 by ACUMED, INC. (the "DISCLOSING PARTY") and MEDEX\nSURGICAL, its PRINCIPALS, MANAGEMENT and STAFF (the "RECEIVING PARTY") for the purpose of\npreventing the unauthorized disclosure of Confidential Information (as defined below) of the Disclosing Party which may\nbe disclosed to the Receiving Party for the purpose of pursuing the establishment of a business relationship or negotiating\nany contract or agreement between the Disclosing Party and the Receiving Party. For purposes of the agreement,\nConfidential Information shall mean any and all information relating to Acumed Products and Pricing. In consideration\nof the Disclosing Party's disclosure of Confidential Information to the Receiving Party, the Receiving Party hereby agrees\nas follows: 1. The Receiving Party shall hold and maintain the Confidential Information in strictest confidence and in\ntrust for the sole and exclusive benefit of the Disclosing party. 2. The Receiving Party shall not, without the prior written\napproval of the Disclosing Party, use for its own benefit, publish or otherwise disclose to others, or permit the use by\nothers for their benefit or to the detriment of the Disclosing party, any of the Confidential Information. 3. The Receiving\nParty shall carefully restrict access to the Confidential Information to those of its officers, directors and employees who\nclearly need such access in order to participate on the behalf of the Receiving Party in the analysis and negotiation of a\nbusiness relationship or any contract or agreement, or the advisability thereof, with the Disclosing Party. The Receiving\nParty further warrants and represents that it will advise each of the persons to whom it provides access to any of the\nConfidential Information pursuant to the foregoing sentence that such persons are strictly prohibited from making use,\npublishing or otherwise disclosing to others or permitting others to use for their benefit or to the detriment of the\nDisclosing Party, any of the Confidential Information. 4. The Receiving Party shall take actions necessary to protect the\nconfidentiality of the Confidental Information except for its disclosure pursuant to paragraph 3 above, and hereby\nindemnifies the Disclosing Party against any and all losses, damages, claims or expenses incurred or suffered by the\nDisclosing Party as a result of the Receiving Party's breach of this Agreement. 5. This agreement shall continue in full\nforce and effect indefinitely, except that the Receiving Party's obligations hereunder shall not extend to any of the\nConfidential Information which the Receiving Party can demonstrate was in the public domain on the date of this\nAgreement. 6. The Receiving Party understands and acknowledges that any disclosure or misappropriation of any of the\nConfidential Information in violation of this Agreement may cause the disclosing Party irreparable harm, the amount of\nwhich may be difficult to ascertain and, therefore, agrees that the Disclosing Party shall have the right to apply to a court\nof competent jurisdiction for an order restraining any such further disclosure or misappropriation and for such other relief\nas the Disclosing Party shall deem appropriate, such right of the Disclosing Party to be in addition to the remedies\notherwise available to the Disclosing Party at law or in equity. 7. The Receiving Party shall return to the Disclosing Party\nany and all records, notes and other written, printed or tangible materials pertaining to the Confidential Information\nimmediately upon written request of the Disclosing Party. 14 8. This Agreement and the Receiving Party's obligations\nhereunder shall be binding upon the representatives, assigns and successors of the Receiving Party and shall inure to the\nbenefit of the assigns and successors of the Disclosing Party. 9. The Agreement shall be governed by and construed in\naccordance with internal laws of the State of Oregon. 10. If any action at law or inequity is brought to enforce or interpret\nthe provisions of this Agreement, the prevailing party in such action shall be entitled to reasonable attorney's fees. 11.\nThe Agreement constitutes the sole understanding of the parties with respect to the subject matter hereof and may not be\namended or modified except in writing signed by each of the parties hereto. -------------------------- IN WITNESS\nWHEREOF, the parties hereto have entered into this Agreement on the date set forth above. Disclosing Party: Receiving\nParty: Acumed, Inc. Medex Surgical ---------------------------- ---------------------------- By: Randall Huebner By: Bob\nKraus Ed Kraus ------------------------- ------------------------- /s/ Randall Huebner /s/ Bob Kraus /s/ Ed Kraus\n---------------------------- ---------------------------- Signature Signature Its: President Its: Co-Presidents ------------------------\n-- -- - -- - -- - -- - -- - -- - -- - - Title Title Date: 3-17-99 Date: 3/15/99 ----------------------- ------------------------- 9c05001246961d7ebcaa6e1758c808e6.pdf effective_date jurisdiction party term EX-99.(E)(2) 2 dex99e2.htm CONFIDENTIALITY AGREEMENT BETWEEN THE COMPANY AND BTMU,\nDATED JULY 2, 2008\nExhibit (e)(2)\nCONFIDENTIALITY AGREEMENT\nJuly 2, 2008\nThe Bank of Tokyo-Mitsubishi UFJ, Ltd.\n7-1, Marunouchi 2-chome\nChiyoda-ku, Tokyo 100-8388\nJapan\nLadies and Gentlemen:\nYou have requested information from UnionBanCal Corporation (the “Company”) in connection with your consideration of acquiring the\nshares of the Company that you do not already own (a “Transaction”). The Company is willing to furnish or otherwise make available such\ninformation to you in consideration of your agreement to abide by the terms of this letter agreement (this “Agreement”).\n1. Confidentiality.\n(a) You agree to keep confidential and to use only for the purpose of evaluating a possible Transaction all information that the Company or its\nRepresentatives (as hereinafter defined) furnish or otherwise make available to you or your Representatives, whether oral, written or electronic,\ntogether with any reports, analyses, compilations, forecasts, memoranda, notes, studies and any other written or electronic materials prepared by or\nfor you or your Representatives that contain, reflect or are based upon such information (collectively, the “Evaluation Material”); provided, however,\nthat (i) Evaluation Material may be disclosed to those of your officers, directors, employees, accountants, counsel, investment bankers, consultants,\ncommercial bankers or other representatives, either now or hereafter employed or retained, or any of your or their respective affiliates (such persons\nin their capacity as such being generally referred to herein as “Representatives”, it being understood that, for the purposes of this definition only, the\nCompany and its subsidiaries shall not be deemed to be affiliates of yours) who need to know such information for the purpose of assisting you in\nyour evaluation of a Transaction so long as you cause your Representatives to treat the Evaluation Material in a confidential manner and in\naccordance with the terms hereof (it being understood that you will be responsible for any breach of the terms of this Agreement by any of your\nRepresentatives), and (ii) any disclosure of the Evaluation Material may be made to which the Company consents in writing. Notwithstanding the\nforegoing, the term “Evaluation Material” does not include information that (A) was or becomes available to you on a non-confidential basis from a\nsource other than the Company or its Representatives provided such other source is not known by you to be bound by a confidentiality obligation to\nthe Company, (B) is independently developed by you or your Representatives without reference to the Evaluation Material, or (C) was or becomes\ngenerally available to the public (other than as a result of a breach by you or your Representatives of this Agreement). Notwithstanding anything to\nthe contrary in this Agreement, the forecast materials prepared by certain members of management at the request of the Special Committee of the\nBoard of Directors of the Company (the “Special Committee”) shall be deemed Evaluation Material for purposes of this Agreement, except for any\nportion of such forecast materials that becomes generally available to the public with the consent of the Company’s Audit Committee.\nNotwithstanding the foregoing, you and your Representatives shall not be prohibited from (i) using any Evaluation Material for purposes of\nmonitoring and evaluating your investment in the Company or exercising any voting, governance, control or other rights and responsibilities in your\ncapacity as a shareholder of the Company or your Representatives’ capacities as members of the Board of Directors of the Company or\n(ii) disclosing Evaluation Material to the extent such disclosure is required to be made by you in order to avoid violating the federal securities laws\nor rules of any securities exchange to which you are subject in connection with purchasing or offering to purchase securities of the Company,\nincluding by initiating a tender offer to the stockholders of the Company directly.\n(b) In the event that you or any of your Representatives are required to disclose any Evaluation Material in connection with any judicial or\nadministrative proceedings (by oral questions, interrogatories, requests for information or documents, subpoena, Civil Investigation Demand or\nsimilar legal process), you will provide the Company with prompt and, to the extent legally permissible, prior notice of such requirement(s). You\nalso agree, to the extent legally permissible, to provide the Company, in advance of any such disclosure, with a list of any Evaluation Material you\nintend to disclose (and, if applicable, the text of the disclosure language itself) and to cooperate with the Company (at the Company’s expense) to the\nextent the Company may seek to limit such disclosure, including, if requested, taking all reasonable steps to resist or avoid any such judicial or\nadministrative proceedings referred to above, including joining in any motion for a protective order that the Company might seek. If the Company\nhas sought a protective order from an appropriate court or has notified you of its prompt intention to do so, you agree to withhold any Evaluation\nMaterial sought pending a court’s determination on the Company’s motion for a protective order. If and to the extent, in the absence of a protective\norder or the receipt of a waiver from the Company after a request in writing therefor is made by you (such request to be made as soon as practicable\nto allow the Company a reasonable amount of time to respond thereto), you or your Representatives are legally required to so disclose Evaluation\nMaterial to any governmental or self-regulatory authority to avoid censure or penalty, you will use reasonable efforts to obtain assurances that\nconfidential treatment will be accorded to any Evaluation Material that you are so required to disclose and thereafter you may disclose such\ninformation without liability hereunder.\n2\n(c) Upon the request of the Company, you will (and you will cause your Representatives to) promptly deliver to the Company or destroy, as\nrequested by the Company, all copies of the Evaluation Material, including any notes relating thereto, without retaining any copy thereof, including,\nto the extent practicable, expunging all such Evaluation Material from any computer, word processor or other device containing such information. If\nrequested by the Company, an appropriate officer of yours will certify to the Company that all such material has been so delivered or destroyed.\nNotwithstanding the foregoing, (i) your legal department and/or outside counsel may keep one copy of the Evaluation Material (in electronic or\npaper form) and, with respect to your Representatives who are accounting firms, such firms may keep one copy of the Evaluation Material if\nrequired by policies and procedures implemented by such accounting firms in order to comply with applicable law, regulation, professional standards\nor reasonable business practice and (ii) you and your Representatives may retain Evaluation Material to the extent it is “backed-up” on your or their\n(as the case may be) electronic information management and communications systems or servers, is not available to an end user and cannot be\nexpunged without considerable effort. Any and all duties and obligations existing under this Agreement shall remain in full force and effect,\nnotwithstanding the delivery or destruction of the Evaluation Material required by this Section.\n2. No Representations or Warranties. You understand and agree that neither the Company nor any of its Representatives makes any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material for your or your Representatives’\npurposes and that only those representations and warranties made by us in writing in a subsequent definitive agreement with you related to a\nTransaction, if any, shall have any legal effect. You agree that other than as may be set forth in such definitive agreement neither the Company nor its\nRepresentatives shall have any liability whatsoever to you or any of your Representatives, including, without limitation, in contract, tort or under\nfederal or state securities laws, relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom.\n3. No Obligation. It is understood and agreed that unless and until there is a definitive agreement between us with respect to a Transaction,\nneither the Company nor you intends to be, nor shall either of you or the Company be, under any legal obligation of any kind whatsoever with\nrespect to such Transaction or otherwise, by virtue of any written or oral expressions by our respective Representatives with respect to such\nTransaction, except for the matters specifically agreed to in this Agreement. It is further understood and agreed that this Agreement shall not\npreclude or limit you in any way from purchasing securities of the Company, including by initiating a tender offer to the stockholders of the\nCompany directly, without our consent and without any agreement between you and us.\n3\n4. Equitable Relief. The Company, without prejudice to any rights to judicial relief it may otherwise have, shall be entitled to seek equitable\nrelief, including injunction and/or specific performance, in the event of any breach of the provisions of this Agreement. You agree that you will not\noppose the granting of such relief on the basis that the Company has an adequate remedy at law and that assuming the injunctive relief is obtained\nyou will pay any fees that the Company may incur in enforcing this Agreement. You also agree that you will not seek and agree to waive any\nrequirement for the securing or posting of a bond in connection with the Company’s seeking or obtaining such relief. You acknowledge that the\nEvaluation Material is valuable and unique and that any disclosure thereof in breach of this Agreement will result in irreparable injury to the\nCompany.\n5. Compliance with Law. You hereby confirm that you and your Representatives will take any action necessary or appropriate to prevent the\nuse by you and them of any information about the Company in a way that violates any antitrust or other applicable law.\n6. Miscellaneous.\n(a) Each party’s obligations under this Agreement expire upon the earlier of (i) two years after the date of this Agreement, and (ii) the\ncompletion of a Transaction with you.\n(b) The term “person” as used in this Agreement shall be broadly interpreted to include, without limitation, the media and any corporation,\ncompany, group, partnership, trust, governmental entity or individual. The term “affiliate” as used in this Agreement shall have the meaning ascribed\nto such term in Rule 12b-2 of the General Rules and Regulations under the Exchange Act.\n(c) It is agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof\nnor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege.\n(d) It is understood and agreed that if any provision contained in this Agreement or the application thereof to you, the Company, or any other\nperson or circumstance shall be invalid, illegal or unenforceable in any respect under any applicable law as determined by a court of competent\njurisdiction, the validity, legality and enforceability of the remaining provisions contained in this Agreement, or the application of such provision to\nsuch persons or circumstances other than those as to which it has been held invalid or unenforceable, shall remain in full force and effect and shall in\nno way be affected, impaired or invalidated thereby. In the case of any such invalidity, illegality or unenforceability, a suitable and equitable\nprovision shall be substituted therefore in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or\nunenforceable provision.\n4\n(e) This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware applicable to agreements made\nand wholly to be performed in such state.\n(f) Each party hereto agrees that it shall bring any action or proceeding in respect of any claim arising out of or related to this Agreement\nexclusively in the United States District Court for the Northern District of California (the “Chosen Court”), and solely in connection with claims\narising under this Agreement (i) irrevocably submits to the exclusive jurisdiction of the Chosen Court, (ii) waives any objection to laying venue in\nany such action or proceeding in the Chosen Court, (iii) waives any objection that the Chosen Court is an inconvenient forum or do not have\njurisdiction over any party hereto and (iv) agrees that service of process upon such party in any such action or proceeding shall be effective if notice\nis given in accordance with Section 6(g) of this Agreement. Each party hereto irrevocably waives any and all right to trial by jury in any legal\nproceeding arising out of or relating to this Agreement. Each of the parties hereto agrees that a final judgment in any lawsuit, action or other\nproceeding arising out of or relating to this Agreement brought in the courts referred to in the first sentence of this Section 6(f) shall be conclusive\nand binding upon each of the parties hereto and may be enforced in any other courts the jurisdiction of which each of the parties is or may be subject,\nby suit upon such judgment.\n(g) Any notice hereunder shall be made in writing by overnight courier, personal delivery, facsimile or email (if telephonically confirmed), in\neach case to:\nIf to the Company:\nThe Special Committee of the Board of\nDirectors of UnionBanCal Corporation\n400 California Street\nSan Francisco, CA 94104\nAttention: David R. Andrews\n(c/o UnionBanCal Corporation)\nFacsimile: 415-765-3391\nTelephone: 415-765-3874\nEmail: Morris.Hirsch@uboc.com\nwith a copy to each of:\nUnionBanCal Corporation\n400 California Street\nSan Francisco, CA 94104\nAttention: Morris W. Hirsch\nFacsimile: 415-765-3391\nTelephone: 415-765-3874\nEmail: Morris.Hirsch@uboc.com\n5\nand\nSkadden, Arps, Slate, Meagher & Flom LLP\nFour Times Square\nNew York, NY 10036\nAttention: William S. Rubenstein\nFacsimile: (917) 777-2642\nTelephone: (212) 735-2642\nEmail: william.rubenstein@skadden.com\nIf to you:\nThe Bank of Tokyo-Mitsubishi UFJ, Ltd.\n7-1, Marunouchi 2-chome\nChiyoda-ku, Tokyo 100-8388 Japan\nAttention: Seiji Oizumi\nFacsimile: +81 (3) 3240 3970\nTelephone: +81 (3) 3240 1447\nEmail: seiji_oizumi@mufg.jp\nwith a copy to:\nSullivan & Cromwell LLP\n125 Broad Street\nNew York, NY 10004\nAttention: Donald J. Toumey\nFacsimile: (212) 558-3588\nTelephone: (212) 558-4000\nEmail: toumeyd@sullcrom.com\n(h) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all other prior\nagreements and understandings, both written and verbal, between the parties with respect to the subject matter hereof. This Agreement shall be\nbinding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Any attempted or purported\nassignment of this Agreement by either party without the prior written consent of the other party shall be null and void.\n(i) This Agreement may only be amended by a separate writing signed by the Company, the Special Committee of the Board of Directors of\nthe Company and you expressly so amending this Agreement. Any provision of this Agreement may be waived by the party entitled to the benefit\nthereof, if in writing and signed by the party entitled to the benefit thereof (and, in the case of a waiver by the Company, signed by the Special\nCommittee of the Board of Directors of the Company).\n6\n(j) This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which shall constitute\none and the same Agreement.\n[The next page is the signature page]\n7\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this Agreement, whereupon this Agreement\nwill constitute our agreement with respect to the subject matter hereof.\nVery truly yours,\nUNIONBANCAL CORPORATION\nBy /s/ Morris W. Hirsch\nName: Morris W. Hirsch\nTitle: Senior Executive Vice President,\nGeneral Counsel and Secretary\nCONFIRMED AND AGREED TO:\nTHE BANK OF TOKYO-MITSUBISHI UFJ, LTD.\nBy /s/ Akira Kamiya\nName: Akira Kamiya\nTitle: Managing Executive Officer\nDated: July 2, 2008\nCONFIRMED AND AGREED TO:\nTHE SPECIAL COMMITTEE OF THE\nBOARD OF DIRECTORS OF\nUNIONBANCAL CORPORATION\nBy /s/ David R. Andrews\nName: David R. Andrews\nTitle: Chairman of Subcommittee\nDated: July 2, 2008 EX-99.(E)(2) 2 dex99e2.htm CONFIDENTIALITY AGREEMENT BETWEEN THE COMPANY AND BTMU,\nDATED JULY 2, 2008\nExhibit ()(2)\nCONFIDENTIALITY AGREEMENT\nJuly 2, 2008\nThe Bank of Tokyo-Mitsubishi UFJ, Ltd.\n7-1, Marunouchi 2-chome\nChiyoda-ku, Tokyo 100-8388\nJapan\nLadies and Gentlemen:\nYou have requested information from UnionBanCal Corporation (the “Company”) in connection with your consideration of acquiring the\nshares of the Company that you do not already own (a “Transaction”). The Company is willing to furnish or otherwise make available such\ninformation to you in consideration of your agreement to abide by the terms of this letter agreement (this “Agreement”).\n1. Confidentiality.\n(a) You agree to keep confidential and to use only for the purpose of evaluating a possible Transaction all information that the Company or its\nRepresentatives (as hereinafter defined) furnish or otherwise make available to you or your Representatives, whether oral, written or electronic,\ntogether with any reports, analyses, compilations, forecasts, memoranda, notes, studies and any other written or electronic materials prepared by or\nfor you or your Representatives that contain, reflect or are based upon such information (collectively, the “Evaluation Material”); provided, however,\nthat (i) Evaluation Material may be disclosed to those of your officers, directors, employees, accountants, counsel, investment bankers, consultants,\ncommercial bankers or other representatives, either now or hereafter employed or retained, or any of your or their respective affiliates (such persons\nin their capacity as such being generally referred to herein as “Representatives”, it being understood that, for the purposes of this definition only, the\nCompany and its subsidiaries shall not be deemed to be affiliates of yours) who need to know such information for the purpose of assisting you in\nyour evaluation of a Transaction so long as you cause your Representatives to treat the Evaluation Material in a confidential manner and in\naccordance with the terms hereof (it being understood that you will be responsible for any breach of the terms of this Agreement by any of your\n \nRepresentatives), and (ii) any disclosure of the Evaluation Material may be made to which the Company consents in writing. Notwithstanding the\nforegoing, the term “Evaluation Material” does not include information that (A) was or becomes available to you on a non-confidential basis from a\nsource other than the Company or its Representatives provided such other source is not known by you to be bound by a confidentiality obligation to\nthe Company, (B) is independently developed by you or your Representatives without reference to the Evaluation Material, or (C) was or becomes\ngenerally available to the public (other than as a result of a breach by you or your Representatives of this Agreement). Notwithstanding anything to\nthe contrary in this Agreement, the forecast materials prepared by certain members of management at the request of the Special Committee of the\nBoard of Directors of the Company (the “Special Committee”) shall be deemed Evaluation Material for purposes of this Agreement, except for any\nportion of such forecast materials that becomes generally available to the public with the consent of the Company’s Audit Committee.\nNotwithstanding the foregoing, you and your Representatives shall not be prohibited from (i) using any Evaluation Material for purposes of\nmonitoring and evaluating your investment in the Company or exercising any voting, governance, control or other rights and responsibilities in your\ncapacity as a shareholder of the Company or your Representatives’ capacities as members of the Board of Directors of the Company or\n(ii) disclosing Evaluation Material to the extent such disclosure is required to be made by you in order to avoid violating the federal securities laws\nor rules of any securities exchange to which you are subject in connection with purchasing or offering to purchase securities of the Company,\nincluding by initiating a tender offer to the stockholders of the Company directly.\n(b) In the event that you or any of your Representatives are required to disclose any Evaluation Material in connection with any judicial or\nadministrative proceedings (by oral questions, interrogatories, requests for information or documents, subpoena, Civil Investigation Demand or\nsimilar legal process), you will provide the Company with prompt and, to the extent legally permissible, prior notice of such requirement(s). You\nalso agree, to the extent legally permissible, to provide the Company, in advance of any such disclosure, with a list of any Evaluation Material you\nintend to disclose (and, if applicable, the text of the disclosure language itself) and to cooperate with the Company (at the Company’s expense) to the\nextent the Company may seek to limit such disclosure, including, if requested, taking all reasonable steps to resist or avoid any such judicial or\nadministrative proceedings referred to above, including joining in any motion for a protective order that the Company might seek. If the Company\nhas sought a protective order from an appropriate court or has notified you of its prompt intention to do so, you agree to withhold any Evaluation\nMaterial sought pending a court’s determination on the Company’s motion for a protective order. If and to the extent, in the absence of a protective\norder or the receipt of a waiver from the Company after a request in writing therefor is made by you (such request to be made as soon as practicable\nto allow the Company a reasonable amount of time to respond thereto), you or your Representatives are legally required to so disclose Evaluation\nMaterial to any governmental or self-regulatory authority to avoid censure or penalty, you will use reasonable efforts to obtain assurances that\nconfidential treatment will be accorded to any Evaluation Material that you are so required to disclose and thereafter you may disclose such\ninformation without liability hereunder.\n(c) Upon the request of the Company, you will (and you will cause your Representatives to) promptly deliver to the Company or destroy, as\nrequested by the Company, all copies of the Evaluation Material, including any notes relating thereto, without retaining any copy thereof, including,\nto the extent practicable, expunging all such Evaluation Material from any computer, word processor or other device containing such information. If\nrequested by the Company, an appropriate officer of yours will certify to the Company that all such material has been so delivered or destroyed.\nNotwithstanding the foregoing, (i) your legal department and/or outside counsel may keep one copy of the Evaluation Material (in electronic or\npaper form) and, with respect to your Representatives who are accounting firms, such firms may keep one copy of the Evaluation Material if\nrequired by policies and procedures implemented by such accounting firms in order to comply with applicable law, regulation, professional standards\nor reasonable business practice and (ii) you and your Representatives may retain Evaluation Material to the extent it is “backed-up” on your or their\n(as the case may be) electronic information management and communications systems or servers, is not available to an end user and cannot be\nexpunged without considerable effort. Any and all duties and obligations existing under this Agreement shall remain in full force and effect,\nnotwithstanding the delivery or destruction of the Evaluation Material required by this Section.\n2. No Representations or Warranties. You understand and agree that neither the Company nor any of its Representatives makes any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material for your or your Representatives’\npurposes and that only those representations and warranties made by us in writing in a subsequent definitive agreement with you related to a\nTransaction, if any, shall have any legal effect. You agree that other than as may be set forth in such definitive agreement neither the Company nor its\nRepresentatives shall have any liability whatsoever to you or any of your Representatives, including, without limitation, in contract, tort or under\nfederal or state securities laws, relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom.\n3. No Obligation. It is understood and agreed that unless and until there is a definitive agreement between us with respect to a Transaction,\nneither the Company nor you intends to be, nor shall either of you or the Company be, under any legal obligation of any kind whatsoever with\nrespect to such Transaction or otherwise, by virtue of any written or oral expressions by our respective Representatives with respect to such\nTransaction, except for the matters specifically agreed to in this Agreement. It is further understood and agreed that this Agreement shall not\npreclude or limit you in any way from purchasing securities of the Company, including by initiating a tender offer to the stockholders of the\nCompany directly, without our consent and without any agreement between you and us.\n3\n4. Equitable Relief. The Company, without prejudice to any rights to judicial relief it may otherwise have, shall be entitled to seek equitable\nrelief, including injunction and/or specific performance, in the event of any breach of the provisions of this Agreement. You agree that you will not\noppose the granting of such relief on the basis that the Company has an adequate remedy at law and that assuming the injunctive relief is obtained\nyou will pay any fees that the Company may incur in enforcing this Agreement. You also agree that you will not seek and agree to waive any\nrequirement for the securing or posting of a bond in connection with the Company’s seeking or obtaining such relief. You acknowledge that the\nEvaluation Material is valuable and unique and that any disclosure thereof in breach of this Agreement will result in irreparable injury to the\nCompany.\n5. Compliance with Law. You hereby confirm that you and your Representatives will take any action necessary or appropriate to prevent the\nuse by you and them of any information about the Company in a way that violates any antitrust or other applicable law.\n6. Miscellaneous.\n(a) Each party’s obligations under this Agreement expire upon the earlier of (i) two years after the date of this Agreement, and (ii) the\ncompletion of a Transaction with you.\n(b) The term “person” as used in this Agreement shall be broadly interpreted to include, without limitation, the media and any corporation,\ncompany, group, partnership, trust, governmental entity or individual. The term “affiliate” as used in this Agreement shall have the meaning ascribed\nto such term in Rule 12b-2 of the General Rules and Regulations under the Exchange Act.\n \n \n(c) It is agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof\nnor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege.\n(d) It is understood and agreed that if any provision contained in this Agreement or the application thereof to you, the Company, or any other\nperson or circumstance shall be invalid, illegal or unenforceable in any respect under any applicable law as determined by a court of competent\njurisdiction, the validity, legality and enforceability of the remaining provisions contained in this Agreement, or the application of such provision to\nsuch persons or circumstances other than those as to which it has been held invalid or unenforceable, shall remain in full force and effect and shall in\nno way be affected, impaired or invalidated thereby. In the case of any such invalidity, illegality or unenforceability, a suitable and equitable\nprovision shall be substituted therefore in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or\nunenforceable provision.\n(e) This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware applicable to agreements made\nand wholly to be performed in such state.\n(f) Each party hereto agrees that it shall bring any action or proceeding in respect of any claim arising out of or related to this Agreement\nexclusively in the United States District Court for the Northern District of California (the “Chosen Court”), and solely in connection with claims\narising under this Agreement (i) irrevocably submits to the exclusive jurisdiction of the Chosen Court, (ii) waives any objection to laying venue in\nany such action or proceeding in the Chosen Court, (iii) waives any objection that the Chosen Court is an inconvenient forum or do not have\njurisdiction over any party hereto and (iv) agrees that service of process upon such party in any such action or proceeding shall be effective if notice\nis given in accordance with Section 6(g), of this Agreement. Each party hereto irrevocably waives any and all right to trial by jury in any legal\nproceeding arising out of or relating to this Agreement. Each of the parties hereto agrees that a final judgment in any lawsuit, action or other\nproceeding arising out of or relating to this Agreement brought in the courts referred to in the first sentence of this Section 6(f) shall be conclusive\nand binding upon each of the parties hereto and may be enforced in any other courts the jurisdiction of which each of the parties is or may be subject,\nby suit upon such judgment.\n(g) Any notice hereunder shall be made in writing by overnight courier, personal delivery, facsimile or email (if telephonically confirmed), in\neach case to:\nIf to the Company:\nThe Special Committee of the Board of\nDirectors of UnionBanCal Corporation\n400 California Street\nSan Francisco, CA 94104\nAttention: David R. Andrews\n(c/o UnionBanCal Corporation)\nFacsimile: 415-765-3391\nTelephone: 415-765-3874\nEmail: Morris.Hirsch@uboc.com\nwith a copy to each of:\nUnionBanCal Corporation\n400 California Street\nSan Francisco, CA 94104\nAttention: Morris W. Hirsch\nFacsimile: 415-765-3391\nTelephone: 415-765-3874\nEmail: Morris.Hirsch@uboc.com\nand\nSkadden, Arps, Slate, Meagher & Flom LLP\nFour Times Square\nNew York, NY 10036\nAttention: William S. Rubenstein\nFacsimile: (917) 777-2642\nTelephone: (212) 735-2642\nEmail: william.rubenstein@skadden.com\nIf to you:\nThe Bank of Tokyo-Mitsubishi UFJ, Ltd.\n7-1, Marunouchi 2-chome\nChiyoda-ku, Tokyo 100-8388 Japan\nAttention: Seiji Oizumi\nFacsimile: +81 (3) 3240 3970\nTelephone: +81 (3) 3240 1447\nEmail: seiji_oizumi@mufg.jp\nwith a copy to:\nSullivan & Cromwell LLP\n125 Broad Street\nNew York, NY 10004\nAttention: Donald J. Toumey\nFacsimile: (212) 558-3588\nTelephone: (212) 558-4000\nEmail: toumeyd@sullcrom.com\n(h) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all other prior\nagreements and understandings, both written and verbal, between the parties with respect to the subject matter hereof. This Agreement shall be\nbinding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Any attempted or purported\nassignment of this Agreement by either party without the prior written consent of the other party shall be null and void.\n(i) This Agreement may only be amended by a separate writing signed by the Company, the Special Committee of the Board of Directors of\nthe Company and you expressly so amending this Agreement. Any provision of this Agreement may be waived by the party entitled to the benefit\nthereof, if in writing and signed by the party entitled to the benefit thereof (and, in the case of a waiver by the Company, signed by the Special\nCommittee of the Board of Directors of the Company).\n \n(j) This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which shall constitute\none and the same Agreement.\n[The next page is the signature page]\n7\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this Agreement, whereupon this Agreement will constitute our agreement with respect to the subject matter hereof. CONFIRMED AND AGREED TO:\nTHE BANK OF TOKYO-MITSUBISHI UFJ, LTD. By /s/ Akira Kamiya\nName: Akira Kamiya\nTitle: Managing Executive Officer\nDated: July 2, 2008\nCONFIRMED AND AGREED TO:\nTHE SPECIAL COMMITTEE OF THE\nBOARD OF DIRECTORS OF\nUNIONBANCAL CORPORATION\nBy /s/ David R. Andrews\nName: David R. Andrews\nTitle: Chairman of Subcommittee\nDated: July 2, 2008\nVery truly yours,\nUNIONBANCAL CORPORATION\nBy /s/ Morris W. Hirsch\nName: Morris W. Hirsch\nTitle: Senior Executive Vice President,\nGeneral Counsel and Secretary EX-99.(E)(2) 2 dex99e2.htm CONFIDENTIALITY AGREEMENT BETWEEN THE COMPANY AND BTMU,\nDATED JULY 2, 2008\nExhibit (e)(2)\nCONFIDENTIALITY AGREEMENT\nJuly 2, 2008\nThe Bank of Tokyo-Mitsubishi UFJ, Ltd.\n7-1, Marunouchi 2-chome\nChiyoda-ku, Tokyo 100-8388\nJapan\nLadies and Gentlemen:\nYou have requested information from UnionBanCal Corporation (the "Company.") in connection with your consideration of acquiring the\nshares of the Company that you do not already own (a "Transaction"). The Company is willing to furnish or otherwise make available such\ninformation to you in consideration of your agreement to abide by the terms of this letter agreement (this "Agreement").\n1. Confidentiality..\n(a) You agree to keep confidential and to use only for the purpose of evaluating a possible Transaction all information that the Company or\nits\nRepresentatives (as hereinafter defined) furnish or otherwise make available to you or your Representatives, whether oral, written or electronic,\ntogether with any reports, analyses, compilations, forecasts, memoranda, notes, studies and any other written or electronic materials prepared by or\nfor you or your Representatives that contain, reflect or are based upon such information (collectively, the "Evaluation Material"); provided, however\nthat (i) Evaluation Material may be disclosed to those of your officers, directors, employees, accountants, counsel, investment bankers, consultants,\ncommercial bankers or other representatives, either now or hereafter employed or retained, or any of your or their respective affiliates (such persons\nin their capacity as such being generally referred to herein as "Representatives", it being understood that, for the purposes of this definition only,\nthe\nCompany and its subsidiaries shall not be deemed to be affiliates of yours) who need to know such information for the purpose of assisting you in\nyour evaluation of a Transaction so long as you cause your Representatives to treat the Evaluation Material in a confidential manner and in\naccordance with the terms hereof (it being understood that you will be responsible for any breach of the terms of this Agreement by any of your\nRepresentatives), and (ii) any disclosure of the Evaluation Material may be made to which the Company consents in writing. Notwithstanding the\nforegoing, the term "Evaluation Material" does not include information that (A) was or becomes available to you on a non-confidential basis from a\nsource other than the Company or its Representatives provided such other source is not known by you to be bound by a confidentiality obligation\nto\nthe Company, (B) is independently developed by you or your Representatives without reference to the Evaluation Material, or (C) was or becomes\ngenerally available to the public (other than as a result of a breach by you or your Representatives of this Agreement). Notwithstanding anything to\nthe contrary in this Agreement, the forecast materials prepared by certain members of management at the request of the Special Committee of the\nBoard of Directors of the Company (the "Special Committee") shall be deemed Evaluation Material for purposes of this Agreement, except for any\nportion of such forecast materials that becomes generally available to the public with the consent of the Company's Audit Committee.\nNotwithstanding the foregoing, you and your Representatives shall not be prohibited from (i) using any Evaluation Material for purposes\nof\nmonitoring and evaluating your investment in the Company or exercising any voting, governance, control or other rights and responsibilities in your\ncapacity as a shareholder of the Company or your Representatives' capacities as members of the Board of Directors of the Company\nor\n(ii) disclosing Evaluation Material to the extent such disclosure is required to be made by you in order to avoid violating the federal securities\nlaws\nor rules of any securities exchange to which you are subject in connection with purchasing or offering to purchase securities of the Company,\nincluding by initiating a tender offer to the stockholders of the Company directly.\n(b) In the event that you or any of your Representatives are required to disclose any Evaluation Material in connection with any judicial or\nadministrative proceedings (by oral questions, interrogatories, requests for information or documents, subpoena, Civil Investigation Demand\nor\nsimilar legal process), you will provide the Company with prompt and, to the extent legally permissible, prior notice of such requirement(s).\nYou\nalso agree, to the extent legally permissible, to provide the Company, in advance of any such disclosure, with a list of any Evaluation Material you\nintend to disclose (and, if applicable, the text of the disclosure language itself) and to cooperate with the Company (at the Company's expense) to\nthe\nextent the Company may seek to limit such disclosure, including, if requested, taking all reasonable steps to resist or avoid any such judicial or\nadministrative proceedings referred to above, including joining in any motion for a protective order that the Company might seek. If the Company\nhas sought a protective order from an appropriate court or has notified you of its prompt intention to do so, you agree to withhold any\nEvaluation\nMaterial sought pending a court's determination on the Company's motion for a protective order. If and to the extent, in the absence of a protective\norder or the receipt of a waiver from the Company after a request in writing therefor is made by you (such request to be made as soon as practicable\nto allow the Company a reasonable amount of time to respond thereto), you or your Representatives are legally required to so disclose Evaluation\nMaterial to any governmental or self-regulatory authority to avoid censure or penalty, you will use reasonable efforts to obtain assurances that\nconfidential treatment will be accorded to any Evaluation Material that you are so required to disclose and thereafter you may disclose such\ninformation without liability hereunder.\n2\n(c) Upon the request of the Company, you will (and you will cause your Representatives to) promptly deliver to the Company or destroy, as\nrequested by the Company, all copies of the Evaluation Material, including any notes relating thereto, without retaining any copy thereof, including,\nto the extent practicable, expunging all such Evaluation Material from any computer, word processor or other device containing such information\nIf\nrequested by the Company, an appropriate officer of yours will certify to the Company that all such material has been so delivered or destroyed.\nNotwithstanding the foregoing, (i) your legal department and/or outside counsel may keep one copy of the Evaluation Material (in electronic or\npaper form) and, with respect to your Representatives who are accounting firms, such firms may keep one copy of the Evaluation Material if\nrequired by policies and procedures implemented by such accounting firms in order to comply with applicable law, regulation, professional standards\nor reasonable business practice and (ii) you and your Representatives may retain Evaluation Material to the extent it is "backed-up" on your or their\n(as the case may be) electronic information management and communications systems or servers, is not available to an end user and cannot be\nexpunged without considerable effort. Any and all duties and obligations existing under this Agreement shall remain in full force and effect,\nnotwithstanding the delivery or destruction of the Evaluation Material required by this Section.\n2. No Representations or Warranties. You understand and agree that neither the Company nor any of its Representatives makes any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material for your or your Representatives'\npurposes and that only those representations and warranties made by us in writing in a subsequent definitive agreement with you related to a\nTransaction, if any, shall have any legal effect. You agree that other than as may be set forth in such definitive agreement neither the Company nor its\nRepresentatives shall have any liability whatsoever to you or any of your Representatives, including, without limitation, in contract, tort or under\nfederal or state securities laws, relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom.\n3. No Obligation. It is understood and agreed that unless and until there is a definitive agreement between us with respect to a Transaction,\nneither the Company nor you intends to be, nor shall either of you or the Company be, under any legal obligation of any kind whatsoever with\nrespect to such Transaction or otherwise, by virtue of any written or oral expressions by our respective Representatives with respect to such\nTransaction, except for the matters specifically agreed to in this Agreement. It is further understood and agreed that this Agreement shall not\npreclude or limit you in any way from purchasing securities of the Company, including by initiating a tender offer to the stockholders of the\nCompany directly, without our consent and without any agreement between you and us.\n3\n4. Equitable Relief. The Company, without prejudice to any rights to judicial relief it may otherwise have, shall be entitled to seek equitable\nrelief, including injunction and/or specific performance, in the event of any breach of the provisions of this Agreement. You agree that you will not\noppose the granting of such relief on the basis that the Company has an adequate remedy at law and that assuming the injunctive relief is obtained\nyou will pay any fees that the Company may incur in enforcing this Agreement. You also agree that you will not seek and agree to waive any\nrequirement for the securing or posting of a bond in connection with the Company's seeking or obtaining such relief. You acknowledge that the\nEvaluation Material is valuable and unique and that any disclosure thereof in breach of this Agreement will result in irreparable injury to the\nCompany.\n5. Compliance with Law. You hereby confirm that you and your Representatives will take any action necessary or appropriate to prevent the\nuse by you and them of any information about the Company in a way that violates any antitrust or other applicable law.\n6. Miscellaneous.\n(a) Each party's obligations under this Agreement expire upon the earlier of (i) two years after the date of this Agreement, and (ii) the\ncompletion of a Transaction with you.\n(b) The term "person" as used in this Agreement shall be broadly interpreted to include, without limitation, the media and any corporation,\ncompany, group, partnership, trust, governmental entity or individual. The term "affiliate" as used in this Agreement shall have the meaning ascribed\nto such term in Rule 12b-2 of the General Rules and Regulations under the Exchange Act.\n(c) It is agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof\nnor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege.\n(d) It is understood and agreed that if any provision contained in this Agreement or the application thereof to you, the Company, or any other\nperson or circumstance shall be invalid, illegal or unenforceable in any respect under any applicable law as determined by a court of competent\njurisdiction, the validity, legality and enforceability of the remaining provisions contained in this Agreement, or the application of such provision to\nsuch persons or circumstances other than those as to which it has been held invalid or unenforceable, shall remain in full force and effect and shall in\nno\nway be affected, impaired or invalidated thereby. In the case of any such invalidity, illegality or unenforceability, a suitable and equitable\nprovision shall be substituted therefore in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or\nunenforceable provision.\n4\n(e) This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware applicable to agreements made\nand wholly to be performed in such state.\n(f) Each party hereto agrees that it shall bring any action or proceeding in respect of any claim arising out of or related to this Agreement\nexclusively in the United States District Court for the Northern District of California (the "Chosen Court"), and solely in connection with claims\narising under this Agreement (i) irrevocably submits to the exclusive jurisdiction of the Chosen Court, (ii) waives any objection to laying venue in\nany such action or proceeding in the Chosen Court, (iii) waives any objection that the Chosen Court is an inconvenient forum or do not have\njurisdiction over any party hereto and (iv) agrees that service of process upon such party in any such action or proceeding shall be effective if notice\nis given in accordance with Section 6(g) of this Agreement. Each party hereto irrevocably waives any and all right to trial by jury in any legal\nproceeding arising out of or relating to this Agreement. Each of the parties hereto agrees that a final judgment in any lawsuit, action or other\nproceeding arising out of or relating to this Agreement brought in the courts referred to in the first sentence of this Section 6(f) shall be conclusive\nand binding upon each of the parties hereto and may be enforced in any other courts the jurisdiction of which each of the parties is or may be subject,\nby suit upon such judgment.\n(g) Any notice hereunder shall be made in writing by overnight courier, personal delivery, facsimile or email (if telephonically confirmed), in\neach case to:\nIf to the Company:\nThe Special Committee of the Board of\nDirectors of UnionBanCal Corporation\n400 California Street\nSan Francisco, CA 94104\nAttention: David R. Andrews\n(c/o UnionBanCal Corporation)\nFacsimile: 415-765-3391\nTelephone: 415-765-3874\nEmail: Morris.Hirsch@uboc.com\nwith a copy to each of:\nUnionBanCal Corporation\n400 California Street\nSan Francisco, CA 94104\nAttention: Morris W. Hirsch\nFacsimile: 415-765-3391\nTelephone: 415-765-3874\nEmail: Morris.Hirsch@uboc.com\n5\nand\nSkadden, Arps, Slate, Meagher & Flom LLP\nFour Times Square\nNew York, NY 10036\nAttention: William S. Rubenstein\nFacsimile: (917) 777-2642\nTelephone: (212) 735-2642\nEmail: william.rubenstein@skadden.com\nIf to you:\nThe Bank of Tokyo-Mitsubishi UFJ, Ltd.\n7-1, Marunouchi 2-chome\nChiyoda-ku, Tokyo 100-8388 Japan\nAttention: Seiji Oizumi\nFacsimile: +81 (3) 3240 3970\nTelephone: +81 (3) 3240 1447\nEmail: seiji_oizumi@mufg.jp\nwith a copy to:\nSullivan & Cromwell LLP\n125 Broad Street\nNew York, NY 10004\nAttention: Donald J. Toumey\nFacsimile: (212) 558-3588\nTelephone: (212) 558-4000\nEmail: toumeyd@sullcrom.com\n(h) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all other prior\nagreements and understandings, both written and verbal, between the parties with respect to the subject matter hereof. This Agreement shall be\nbinding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Any attempted or purported\nassignment of this Agreement by either party without the prior written consent of the other party shall be null and void.\n(i) This Agreement may only be amended by a separate writing signed by the Company, the Special Committee of the Board of Directors of\nthe Company and you expressly SO amending this Agreement. Any provision of this Agreement may be waived by the party entitled to the benefit\nthereof, if in writing and signed by the party entitled to the benefit thereof (and, in the case of a waiver by the Company, signed by the Special\nCommittee of the Board of Directors of the Company).\n6\n(j) This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which shall constitute\none and the same Agreement.\n[The next page is the signature page]\n7\nIf you are in agreement with the foregoing, please So indicate by signing and returning one copy of this Agreement, whereupon this Agreement\nwill constitute our agreement with respect to the subject matter hereof.\nVery truly yours,\nUNIONBANCAL CORPORATION\nBy /s/ Morris W. Hirsch\nName: Morris W. Hirsch\nTitle: Senior Executive Vice President,\nGeneral Counsel and Secretary\nCONFIRMED AND AGREED TO:\nTHE BANK OF TOKYO-MITSUBISHI UFJ, LTD.\nBy /s/ Akira Kamiya\nName: Akira Kamiya\nTitle: Managing Executive Officer\nDated: July 2, 2008\nCONFIRMED AND AGREED TO:\nTHE SPECIAL COMMITTEE OF THE\nBOARD OF DIRECTORS OF\nUNIONBANCAL CORPORATION\nBy /s/ David R. Andrews\nName: David R. Andrews\nTitle: Chairman of Subcommittee\nDated: July 2, 2008 EX-99.(E)(2) 2 dex99e2.htm CONFIDENTIALITY AGREEMENT BETWEEN THE COMPANY AND BTMU,\nDATED JULY 2, 2008\nExhibit (e)(2)\nCONFIDENTIALITY AGREEMENT\nJuly 2, 2008\nThe Bank of Tokyo-Mitsubishi UFJ, Ltd.\n7-1, Marunouchi 2-chome\nChiyoda-ku, Tokyo 100-8388\nJapan\nLadies and Gentlemen:\nYou have requested information from UnionBanCal Corporation (the “Company”) in connection with your consideration of acquiring the\nshares of the Company that you do not already own (a “Transaction”). The Company is willing to furnish or otherwise make available such\ninformation to you in consideration of your agreement to abide by the terms of this letter agreement (this “Agreement”).\n1. Confidentiality.\n(a) You agree to keep confidential and to use only for the purpose of evaluating a possible Transaction all information that the Company or its\nRepresentatives (as hereinafter defined) furnish or otherwise make available to you or your Representatives, whether oral, written or electronic,\ntogether with any reports, analyses, compilations, forecasts, memoranda, notes, studies and any other written or electronic materials prepared by or\nfor you or your Representatives that contain, reflect or are based upon such information (collectively, the “Evaluation Material”); provided, however,\nthat (i) Evaluation Material may be disclosed to those of your officers, directors, employees, accountants, counsel, investment bankers, consultants,\ncommercial bankers or other representatives, either now or hereafter employed or retained, or any of your or their respective affiliates (such persons\nin their capacity as such being generally referred to herein as “Representatives”, it being understood that, for the purposes of this definition only, the\nCompany and its subsidiaries shall not be deemed to be affiliates of yours) who need to know such information for the purpose of assisting you in\nyour evaluation of a Transaction so long as you cause your Representatives to treat the Evaluation Material in a confidential manner and in\naccordance with the terms hereof (it being understood that you will be responsible for any breach of the terms of this Agreement by any of your\nRepresentatives), and (ii) any disclosure of the Evaluation Material may be made to which the Company consents in writing. Notwithstanding the\nforegoing, the term “Evaluation Material” does not include information that (A) was or becomes available to you on a non-confidential basis from a\nsource other than the Company or its Representatives provided such other source is not known by you to be bound by a confidentiality obligation to\nthe Company, (B) is independently developed by you or your Representatives without reference to the Evaluation Material, or (C) was or becomes\ngenerally available to the public (other than as a result of a breach by you or your Representatives of this Agreement). Notwithstanding anything to\nthe contrary in this Agreement, the forecast materials prepared by certain members of management at the request of the Special Committee of the\nBoard of Directors of the Company (the “Special Committee”) shall be deemed Evaluation Material for purposes of this Agreement, except for any\nportion of such forecast materials that becomes generally available to the public with the consent of the Company’s Audit Committee.\nNotwithstanding the foregoing, you and your Representatives shall not be prohibited from (i) using any Evaluation Material for purposes of\nmonitoring and evaluating your investment in the Company or exercising any voting, governance, control or other rights and responsibilities in your\ncapacity as a shareholder of the Company or your Representatives’ capacities as members of the Board of Directors of the Company or\n(ii) disclosing Evaluation Material to the extent such disclosure is required to be made by you in order to avoid violating the federal securities laws\nor rules of any securities exchange to which you are subject in connection with purchasing or offering to purchase securities of the Company,\nincluding by initiating a tender offer to the stockholders of the Company directly.\n(b) In the event that you or any of your Representatives are required to disclose any Evaluation Material in connection with any judicial or\nadministrative proceedings (by oral questions, interrogatories, requests for information or documents, subpoena, Civil Investigation Demand or\nsimilar legal process), you will provide the Company with prompt and, to the extent legally permissible, prior notice of such requirement(s). You\nalso agree, to the extent legally permissible, to provide the Company, in advance of any such disclosure, with a list of any Evaluation Material you\nintend to disclose (and, if applicable, the text of the disclosure language itself) and to cooperate with the Company (at the Company’s expense) to the\nextent the Company may seek to limit such disclosure, including, if requested, taking all reasonable steps to resist or avoid any such judicial or\nadministrative proceedings referred to above, including joining in any motion for a protective order that the Company might seek. If the Company\nhas sought a protective order from an appropriate court or has notified you of its prompt intention to do so, you agree to withhold any Evaluation\nMaterial sought pending a court’s determination on the Company’s motion for a protective order. If and to the extent, in the absence of a protective\norder or the receipt of a waiver from the Company after a request in writing therefor is made by you (such request to be made as soon as practicable\nto allow the Company a reasonable amount of time to respond thereto), you or your Representatives are legally required to so disclose Evaluation\nMaterial to any governmental or self-regulatory authority to avoid censure or penalty, you will use reasonable efforts to obtain assurances that\nconfidential treatment will be accorded to any Evaluation Material that you are so required to disclose and thereafter you may disclose such\ninformation without liability hereunder.\n2\n(c) Upon the request of the Company, you will (and you will cause your Representatives to) promptly deliver to the Company or destroy, as\nrequested by the Company, all copies of the Evaluation Material, including any notes relating thereto, without retaining any copy thereof, including,\nto the extent practicable, expunging all such Evaluation Material from any computer, word processor or other device containing such information. If\nrequested by the Company, an appropriate officer of yours will certify to the Company that all such material has been so delivered or destroyed.\nNotwithstanding the foregoing, (i) your legal department and/or outside counsel may keep one copy of the Evaluation Material (in electronic or\npaper form) and, with respect to your Representatives who are accounting firms, such firms may keep one copy of the Evaluation Material if\nrequired by policies and procedures implemented by such accounting firms in order to comply with applicable law, regulation, professional standards\nor reasonable business practice and (ii) you and your Representatives may retain Evaluation Material to the extent it is “backed-up” on your or their\n(as the case may be) electronic information management and communications systems or servers, is not available to an end user and cannot be\nexpunged without considerable effort. Any and all duties and obligations existing under this Agreement shall remain in full force and effect,\nnotwithstanding the delivery or destruction of the Evaluation Material required by this Section.\n2. No Representations or Warranties. You understand and agree that neither the Company nor any of its Representatives makes any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material for your or your Representatives’\npurposes and that only those representations and warranties made by us in writing in a subsequent definitive agreement with you related to a\nTransaction, if any, shall have any legal effect. You agree that other than as may be set forth in such definitive agreement neither the Company nor its\nRepresentatives shall have any liability whatsoever to you or any of your Representatives, including, without limitation, in contract, tort or under\nfederal or state securities laws, relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom.\n3. No Obligation. It is understood and agreed that unless and until there is a definitive agreement between us with respect to a Transaction,\nneither the Company nor you intends to be, nor shall either of you or the Company be, under any legal obligation of any kind whatsoever with\nrespect to such Transaction or otherwise, by virtue of any written or oral expressions by our respective Representatives with respect to such\nTransaction, except for the matters specifically agreed to in this Agreement. It is further understood and agreed that this Agreement shall not\npreclude or limit you in any way from purchasing securities of the Company, including by initiating a tender offer to the stockholders of the\nCompany directly, without our consent and without any agreement between you and us.\n3\n4. Equitable Relief. The Company, without prejudice to any rights to judicial relief it may otherwise have, shall be entitled to seek equitable\nrelief, including injunction and/or specific performance, in the event of any breach of the provisions of this Agreement. You agree that you will not\noppose the granting of such relief on the basis that the Company has an adequate remedy at law and that assuming the injunctive relief is obtained\nyou will pay any fees that the Company may incur in enforcing this Agreement. You also agree that you will not seek and agree to waive any\nrequirement for the securing or posting of a bond in connection with the Company’s seeking or obtaining such relief. You acknowledge that the\nEvaluation Material is valuable and unique and that any disclosure thereof in breach of this Agreement will result in irreparable injury to the\nCompany.\n5. Compliance with Law. You hereby confirm that you and your Representatives will take any action necessary or appropriate to prevent the\nuse by you and them of any information about the Company in a way that violates any antitrust or other applicable law.\n6. Miscellaneous.\n(a) Each party’s obligations under this Agreement expire upon the earlier of (i) two years after the date of this Agreement, and (ii) the\ncompletion of a Transaction with you.\n(b) The term “person” as used in this Agreement shall be broadly interpreted to include, without limitation, the media and any corporation,\ncompany, group, partnership, trust, governmental entity or individual. The term “affiliate” as used in this Agreement shall have the meaning ascribed\nto such term in Rule 12b-2 of the General Rules and Regulations under the Exchange Act.\n(c) It is agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof\nnor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege.\n(d) It is understood and agreed that if any provision contained in this Agreement or the application thereof to you, the Company, or any other\nperson or circumstance shall be invalid, illegal or unenforceable in any respect under any applicable law as determined by a court of competent\njurisdiction, the validity, legality and enforceability of the remaining provisions contained in this Agreement, or the application of such provision to\nsuch persons or circumstances other than those as to which it has been held invalid or unenforceable, shall remain in full force and effect and shall in\nno way be affected, impaired or invalidated thereby. In the case of any such invalidity, illegality or unenforceability, a suitable and equitable\nprovision shall be substituted therefore in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or\nunenforceable provision.\n4\n(e) This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware applicable to agreements made\nand wholly to be performed in such state.\n(f) Each party hereto agrees that it shall bring any action or proceeding in respect of any claim arising out of or related to this Agreement\nexclusively in the United States District Court for the Northern District of California (the “Chosen Court”), and solely in connection with claims\narising under this Agreement (i) irrevocably submits to the exclusive jurisdiction of the Chosen Court, (ii) waives any objection to laying venue in\nany such action or proceeding in the Chosen Court, (iii) waives any objection that the Chosen Court is an inconvenient forum or do not have\njurisdiction over any party hereto and (iv) agrees that service of process upon such party in any such action or proceeding shall be effective if notice\nis given in accordance with Section 6(g) of this Agreement. Each party hereto irrevocably waives any and all right to trial by jury in any legal\nproceeding arising out of or relating to this Agreement. Each of the parties hereto agrees that a final judgment in any lawsuit, action or other\nproceeding arising out of or relating to this Agreement brought in the courts referred to in the first sentence of this Section 6(f) shall be conclusive\nand binding upon each of the parties hereto and may be enforced in any other courts the jurisdiction of which each of the parties is or may be subject,\nby suit upon such judgment.\n(g) Any notice hereunder shall be made in writing by overnight courier, personal delivery, facsimile or email (if telephonically confirmed), in\neach case to:\nIf to the Company:\nThe Special Committee of the Board of\nDirectors of UnionBanCal Corporation\n400 California Street\nSan Francisco, CA 94104\nAttention: David R. Andrews\n(c/o UnionBanCal Corporation)\nFacsimile: 415-765-3391\nTelephone: 415-765-3874\nEmail: Morris.Hirsch@uboc.com\nwith a copy to each of:\nUnionBanCal Corporation\n400 California Street\nSan Francisco, CA 94104\nAttention: Morris W. Hirsch\nFacsimile: 415-765-3391\nTelephone: 415-765-3874\nEmail: Morris.Hirsch@uboc.com\n5\nand\nSkadden, Arps, Slate, Meagher & Flom LLP\nFour Times Square\nNew York, NY 10036\nAttention: William S. Rubenstein\nFacsimile: (917) 777-2642\nTelephone: (212) 735-2642\nEmail: william.rubenstein@skadden.com\nIf to you:\nThe Bank of Tokyo-Mitsubishi UFJ, Ltd.\n7-1, Marunouchi 2-chome\nChiyoda-ku, Tokyo 100-8388 Japan\nAttention: Seiji Oizumi\nFacsimile: +81 (3) 3240 3970\nTelephone: +81 (3) 3240 1447\nEmail: seiji_oizumi@mufg.jp\nwith a copy to:\nSullivan & Cromwell LLP\n125 Broad Street\nNew York, NY 10004\nAttention: Donald J. Toumey\nFacsimile: (212) 558-3588\nTelephone: (212) 558-4000\nEmail: toumeyd@sullcrom.com\n(h) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all other prior\nagreements and understandings, both written and verbal, between the parties with respect to the subject matter hereof. This Agreement shall be\nbinding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Any attempted or purported\nassignment of this Agreement by either party without the prior written consent of the other party shall be null and void.\n(i) This Agreement may only be amended by a separate writing signed by the Company, the Special Committee of the Board of Directors of\nthe Company and you expressly so amending this Agreement. Any provision of this Agreement may be waived by the party entitled to the benefit\nthereof, if in writing and signed by the party entitled to the benefit thereof (and, in the case of a waiver by the Company, signed by the Special\nCommittee of the Board of Directors of the Company).\n6\n(j) This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which shall constitute\none and the same Agreement.\n[The next page is the signature page]\n7\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this Agreement, whereupon this Agreement\nwill constitute our agreement with respect to the subject matter hereof.\nVery truly yours,\nUNIONBANCAL CORPORATION\nBy /s/ Morris W. Hirsch\nName: Morris W. Hirsch\nTitle: Senior Executive Vice President,\nGeneral Counsel and Secretary\nCONFIRMED AND AGREED TO:\nTHE BANK OF TOKYO-MITSUBISHI UFJ, LTD.\nBy /s/ Akira Kamiya\nName: Akira Kamiya\nTitle: Managing Executive Officer\nDated: July 2, 2008\nCONFIRMED AND AGREED TO:\nTHE SPECIAL COMMITTEE OF THE\nBOARD OF DIRECTORS OF\nUNIONBANCAL CORPORATION\nBy /s/ David R. Andrews\nName: David R. Andrews\nTitle: Chairman of Subcommittee\nDated: July 2, 2008 a39eb99d4f92d453a942900c78205171.pdf effective_date jurisdiction party term EX-10 2 lwlg061412fm8k_ex10z1.htm EXHIBIT 10.1\nDIRECTOR AGREEMENT\nTHIS AGREEMENT made as of June 11, 2012, by and between Lightwave Logic, Inc., located at 121\nContinental Drive, Suite 110, Newark, DE 19713 (the “Company”); and Ronald A. Bucchi (“Director”).\nWHEREAS, the Company and the Director desire to enter into an agreement which will set forth the terms and\nconditions upon which the Director shall serve as a director on the Company’s Board of Directors.\nNOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, the parties have agreed,\nand do hereby agree, as follows:\nSection 1: Appointment.\nThe Company’s Board of Directors appoints the Director as a member of the Company’s Board of Directors and\nthe Director accepts such appointment upon the terms and conditions set forth. The Director shall serve as a member of\nthe Company’s Board of Directors until his successor is appointed or elected and shall qualify. However, neither the\nCompany, nor any other person, shall be required to cause the continuation, election, or re-appointment of the Director as\na member of the Company’s Board of Directors.\nSection 2: Indemnification\nThe Director shall receive the full benefits, protection, and rights of full and complete indemnification from the\nCompany in connection with his position with the Company as a member of the Company’s Board of Directors to the\nfullest extent permitted by law. Further, the Director shall be named as an insured on the Company’s underwritten\nofficer and director liability insurance policy. The Director shall execute the Indemnification Agreement attached hereto\nas Appendix A, which is incorporated into this Agreement.\nSection 3: Compensation.\nPursuant to the Company’s 2007 Employee Stock Plan, the Director will receive an option to purchase up to Two\nHundred Thousand (200,000) shares of restricted common stock of the Company at the strike price of $.90 per share.\nThe options shall vest as follows: (i) fifty thousand (50,000) options shall vest immediately; and (ii) the remaining\noptions shall vest in three (3) equal annual installments of fifty thousand (50,000) options per year commencing on the\n1st day of each one year anniversary of execution of this Agreement. All of the options shall expire on June 10, 2017.\nSection 4: Duties/ Extent of Services.\nThe Director shall serve as a member of the Board of Directors of the Company, and shall assume the duties that\nthe Chairman of the Board may assign. Subject to Section 6 contained herein, nothing in this Agreement shall be con-\nstrued to limit the Director's freedom to\nengage in other businesses. It is agreed, however, that the Director will devote his best efforts to the needs of the\nCompany, and shall not allow his other business activities to materially interfere with his duties to the Company.\nSection 5: Expenses.\nSubject to prior approval of the Chairman of the Board of Directors, the Director is authorized to incur reasona-\nble expenses on behalf of the Company in performing his duties, including expenses for travel, transportation,\nentertainment, and similar items, which expenses shall be paid by the Company.\nSection 6: Director’s Non-Disclosure.\nThe Director shall execute the Director’s Non-disclosure Agreement attached hereto as Appendix B, which is\nincorporated into this Agreement.\nSection 7: Waiver of Breach.\nThe waiver by either party of a breach of any provision of this Agreement shall not operate or be construed as a\nwaiver of any subsequent breach.\nSection 8: Entire Agreement\nThis Agreement contains the entire agreement of the parties pertaining to the appointment of the Director to the\nCompany’s Board of Directors.\nSection 9: Amendment of Agreement\nNo change or modification of this Agreement shall be valid unless it is in writing and signed by the party against\nwhom the change or modification is sought to be enforced. No change or modification by the Company shall be effective\nunless it is approved by the Company’s Board of Directors and signed by an officer specifically authorized to sign such\ndocuments.\nSection 10: Severability of Provisions\nIf any provision of this Agreement, the Indemnification Agreement or the Director’s Non-disclosure Agreement\nis invalidated or held unenforceable, the invalidity or unenforceability of that provision or provisions shall not affect the\nvalidity or enforceability of any other provision of this Agreement, the Indemnification Agreement or the Director ’s\nNon-disclosure Agreement.\nSection 11: Governing Law and Venue\nAll questions regarding the validity and interpretation of this Agreement shall be governed by and construed and\nenforced in all respects in accordance with the laws of the State of Delaware. The sole and proper venue shall be New\nCastle County, Delaware.\nSection 12: Arbitration of Disputes\nIf a dispute arises out of or relates to this Agreement, or the breach thereof, and if the dispute cannot be settled\nthrough negotiation, the parties agree first to try in good faith to settle the dispute by mediation administered by the\nAmerican Arbitration Association under its Employment Mediation Rules before resorting to arbitration, litigation or\nsome other dispute resolution procedure.\nIN WITNESS, the parties have executed this Agreement in duplicate on the date and year first above written.\nDirector\n/s/Gregory E. McKenna\n/s/Ronald A. Bucchi\nName:___________________\nRonald A. Bucchi\nLightwave Logic, Inc.\nBy: /s/Thomas E. Zelibor\nName:___________________\nThomas E. Zelibor, CEO\n2\nAPPENDIX A\nForm of Indemnification Agreement\n[Incorporated by reference into the registrant’s Form 8-K filed on May 8, 2012]\nAPPENDIX B\nDirector’s Non-Disclosure Agreement\nSection 1.\nSection 2.\n2.1\nDIRECTOR’S NON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT made as of June 11, 2012, by and between Lightwave Logic, Inc., located at 111 Ruthar\nDrive, Newark, DE 19711 (“Company”); and Ronald A. Bucchi (“Director”), whose address is 112 Spicewood Lane,\nKensington, CT 06037.\nWHEREAS, Company is a technology company focused on the development of a Next Generation Non-linear\nOptical Polymer Materials Platform for applications in high speed fiber-optic data communications and optical\ncomputing, which involves the development and utilization of information not generally known in the industry or\nindustries in which the Company is or may become engaged.\nWHEREAS, the Company desires to appoint the Director as a member of the Company’s Board of Directors and\nthe Director accepts such appointment;\nWHEREAS, in performing his services as a director for Company, Director will necessarily be given access to\n“secret information” (defined below), which will be identified by Company as such; and\nWHEREAS, the use of the secret information by, or its disclosure to, any person or organization other than\nCompany and its employees or Director would be highly detrimental and damaging to Company.\nNOW THEREFORE, with the foregoing recitals being incorporated herein by reference and deemed an\nessential part hereof and in consideration of the mutual promises, covenants and conditions contained herein, the parties\nagree as follows:\nSecret Information\nFor the purposes of this Agreement, “secret information” shall mean information relating to the Company’s\nmethods, concepts, ideas, products, and services which is of a proprietary or confidential nature, whether communicated\norally or in writing, data or sample form, including, without limitation, concepts, techniques, processes, designs, cost\ndata, computer programs, and other know-how that is disclosed to the Director by the Company.\nNondisclosure of Secret Information\nNon-disclosure. Director shall not, without the prior written consent of the Company, disclose such secret\ninformation to any third party, including any third party consultant(s). Further, Director shall only use the secret\ninformation pursuant to and for the purpose of performing his services as a director for Company. The parties\nacknowledge that irreparable injury and damage will result from disclosure of the secret information to unauthorized\nthird parties or from utilization of the secret information for any purpose other than the purposes described herein. Also,\nDirector shall take all reasonable steps to ensure that the secret information in the Director ’s possession remains\nconfidential.\n(a)\n(b)\n(c)\n(d)\n(e)\n2.2\n2.3\nSection 3.\nThe foregoing restrictions shall not be applicable to any information which:\nthe Director can show was previously known to him prior to receipt from the Company, without breach of\nan obligation of confidence to any third party;\nis now, or hereafter, comes into the public domain as, for example, by publications, including issued\nUnited States and foreign patents, or is otherwise legally known or available to the public through sources\nother than the Director;\nis subsequently legally disclosed to the Director by a third party not owing obligations of confidence to\nthe Company, or\nis, or will be, developed independently by the Director solely through his affiliates which have not been\nexposed directly or indirectly to the secret information, or\nthe Director is obligated to produce as a result of a court order or other valid and legally enforceable\nmandate, provided that the Company has been given notice thereof and an opportunity to waive its rights\nor to seek a protective order or other appropriate remedy.\nFor the purposes of this Section 2, disclosures which provide specific detailed information shall not be deemed to\nbe within the foregoing exceptions merely because they are embraced by more general disclosures in the public domain\nor in the Director ’s possession. In addition, any combination of features shall not be deemed to be within the foregoing\nexceptions merely because information about individual components are separately in the public domain or in the\nDirector’s possession, but only if the combination itself and its principle of operation are in the public domain or in the\nlawful possession of the Director without restriction on disclosure.\nReturn of documents. Upon termination of Director’s position as a member of the Company’s Board Of\nDirectors, Director agrees that all documents, records, notebooks and similar repositories of or containing\nsecret information, including copies of such materials, then in its possession, whether prepared by it or others,\nwill be returned to the Company.\nDirector acknowledges that the secret information belongs to Company, that Company claims the secret\ninformation comprises trade secrets, claims that the secret information is confidential to Company and that\neach of the obligations assumed by Director in this, and the other paragraphs contained herein, is a material\ninducement to disclose the secret information to Director.\nNo License Granted\nNothing herein shall be deemed to confer on the Director a license or other right to use the secret information\ndisclosed hereunder for any purpose other than the purposes expressly stated in this Agreement. Specifically and\nwithout limitation, Director shall have no license or right to use any secret information in developing any invention,\ndiscovery, know-how, trade secret, patent, trademark, or copyright.\nSection 4.\nSection 5.\nSection 6.\nEnforcement\nIn the event that the Director shall breach this Agreement, or in the event that such breach appears to be an\nimminent possibility, Company shall be entitled to all legal and equitable remedies afforded it by law as a result of the\nbreach (including an injunction restraining the party or parties about to commit any breach of this Agreement, or who\nhave committed a breach of it, without showing or proving any actual damage sustained by Company), and may, in\naddition to any and all other forms of relief, recover from Director all reasonable costs and attorneys' fees encountered\nby it in seeking any such remedy.\nBinding Effect\nThis Agreement shall be binding upon the parties to this Agreement and upon their respective executors,\nadministrators, legal representatives, successors and assigns.\nApplicable Law\nThis Agreement shall be governed for all purposes by the laws of the State of Delaware, with New Castle County\nas the agreed upon proper venue. The Company shall retain all rights and remedies afforded it under the patent,\ntrademark, copyright and other laws of the United States and the States thereof, and of other countries, including without\nlimitation any laws designed to protect proprietary or secret information.\nIn witness, the parties executed this Agreement on the date first shown above.\nWitness\nDirector\n/s/Gregory E. McKenna\n/s/Ronald A. Bucchi\nName:___________________\nRonald A. Bucchi\nCompany\nLightwave Logic, Inc.\nBy: /s/Thomas E. Zelibor\nName:___________________\nThomas E. Zelibor, CEO EX-10 2 lwlg061412fm8k_ex10z1.htm EXHIBIT 10.1\nDIRECTOR AGREEMENT\nTHIS AGREEMENT made as of June 11, 2012, by and between Lightwave Logic, Inc., located at 121\nContinental Drive, Suite 110, Newark, DE 19713 (the “Company”); and Ronald A. Bucchi (“Director”).\nWHEREAS, the Company and the Director desire to enter into an agreement which will set forth the terms and\nconditions upon which the Director shall serve as a director on the Company’s Board of Directors.\nNOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, the parties have agreed,\nand do hereby agree, as follows:\nSection 1: Appointment.\nThe Company’s Board of Directors appoints the Director as a member of the Company’s Board of Directors and\nthe Director accepts such appointment upon the terms and conditions set forth. The Director shall serve as a member of\nthe Company’s Board of Directors until his successor is appointed or elected and shall qualify. However, neither the\nCompany, nor any other person, shall be required to cause the continuation, election, or re-appointment of the Director as\na member of the Company’s Board of Directors.\nSection 2: Indemnification\nThe Director shall receive the full benefits, protection, and rights of full and complete indemnification from the\nCompany in connection with his position with the Company as a member of the Company’s Board of Directors to the\nfullest extent permitted by law. Further, the Director shall be named as an insured on the Company’s underwritten\nofficer and director liability insurance policy. The Director shall execute the Indemnification Agreement attached hereto\nas Appendix A, which is incorporated into this Agreement.\nSection 3: Compensation.\nPursuant to the Company’s 2007 Employee Stock Plan, the Director will receive an option to purchase up to Two\nHundred Thousand (200,000) shares of restricted common stock of the Company at the strike price of $.90 per share.\nThe options shall vest as follows: (i) fifty thousand (50,000) options shall vest immediately; and (ii) the remaining\noptions shall vest in three (3) equal annual installments of fifty thousand (50,000) options per year commencing on the\n1st day of each one year anniversary of execution of this Agreement. All of the options shall expire on June 10, 2017.\nSection 4: Duties/ Extent of Services.\nThe Director shall serve as a member of the Board of Directors of the Company, and shall assume the duties that\nthe Chairman of the Board may assign. Subject to Section 6 contained herein, nothing in this Agreement shall be con-\nstrued to limit the Director's freedom to\nengage in other businesses. It is agreed, however, that the Director will devote his best efforts to the needs of the\nCompany, and shall not allow his other business activities to materially interfere with his duties to the Company.\nSection 5: Expenses.\nSubject to prior approval of the Chairman of the Board of Directors, the Director is authorized to incur reasona-\nble expenses on behalf of the Company in performing his duties, including expenses for travel, transportation,\nentertainment, and similar items, which expenses shall be paid by the Company.\nSection 6: Director’s Non-Disclosure.\nThe Director shall execute the Director’s Non-disclosure Agreement attached hereto as Appendix B, which is\nincorporated into this Agreement.\nSection 7: Waiver of Breach.\nThe waiver by either party of a breach of any provision of this Agreement shall not operate or be construed as a\nwaiver of any subsequent breach.\nSection 8: Entire Agreement\nThis Agreement contains the entire agreement of the parties pertaining to the appointment of the Director to the\nCompany’s Board of Directors.\nSection 9: Amendment of Agreement\nNo change or modification of this Agreement shall be valid unless it is in writing and signed by the party against\nwhom the change or modification is sought to be enforced. No change or modification by the Company shall be effective\nunless it is approved by the Company’s Board of Directors and signed by an officer specifically authorized to sign such\ndocuments.\nSection 10: Severability of Provisions\nIf any provision of this Agreement, the Indemnification Agreement or the Director’s Non-disclosure Agreement\nis invalidated or held unenforceable, the invalidity or unenforceability of that provision or provisions shall not affect the\nvalidity or enforceability of any other provision of this Agreement, the Indemnification Agreement or the Director’s\nNon-disclosure Agreement.\nSection 11: Governing Law and Venue\nAll questions regarding the validity and interpretation of this Agreement shall be governed by and construed and\nenforced in all respects in accordance with the laws of the State of Delaware. The sole and proper venue shall be New\nCastle County, Delaware.\nSection 12: Arbitration of Disputes\nIf a dispute arises out of or relates to this Agreement, or the breach thereof, and if the dispute cannot be settled\nthrough negotiation, the parties agree first to try in good faith to settle the dispute by mediation administered by the\nAmerican Arbitration Association under its Employment Mediation Rules before resorting to arbitration, litigation or\nsome other dispute resolution procedure.\nIN WITNESS, the parties have executed this Agreement in duplicate on the date and year first above written.\nDirector\n/s/Gregory E. McKenna /s/Ronald A. Bucchi\nName: Ronald A. Bucchi\nLightwave Logic, Inc.\nBy: /s/Thomas E. Zelibor\nName: Thomas E. Zelibor, CEO\nAPPENDIX A\nForm of Indemnification Agreement\n[Incorporated by reference into the registrant’s Form 8-K filed on May 8, 2012]\nAPPENDIX B\nDirector’s Non-Disclosure Agreement\nDIRECTOR’S NON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT made as of June 11, 2012, by and between Lightwave Logic, Inc., located at 111 Ruthar\nDrive, Newark, DE 19711 (“Company”); and Ronald A. Bucchi (“Director”), whose address is 112 Spicewood Lane,\nKensington, CT 06037.\nWHEREAS, Company is a technology company focused on the development of a Next Generation Non-linear\nOptical Polymer Materials Platform for applications in high speed fiber-optic data communications and optical\ncomputing, which involves the development and utilization of information not generally known in the industry or\nindustries in which the Company is or may become engaged.\nWHEREAS, the Company desires to appoint the Director as a member of the Company’s Board of Directors and\nthe Director accepts such appointment;\nWHEREAS, in performing his services as a director for Company, Director will necessarily be given access to\n“secret information” (defined below), which will be identified by Company as such; and\nWHEREAS, the use of the secret information by, or its disclosure to, any person or organization other than\nCompany and its employees or Director would be highly detrimental and damaging to Company.\nNOW THEREFORE, with the foregoing recitals being incorporated herein by reference and deemed an\nessential part hereof and in consideration of the mutual promises, covenants and conditions contained herein, the parties\nagree as follows:\nSection 1. Secret Information\nFor the purposes of this Agreement, “secret information” shall mean information relating to the Company’s\nmethods, concepts, ideas, products, and services which is of a proprietary or confidential nature, whether communicated\norally or in writing, data or sample form, including, without limitation, concepts, techniques, processes, designs, cost\ndata, computer programs, and other know-how that is disclosed to the Director by the Company.\nSection 2. Nondisclosure of Secret Information\n2.1 Non-disclosure. Director shall not, without the prior written consent of the Company, disclose such secret\ninformation to any third party, including any third party consultant(s). Further, Director shall only use the secret\ninformation pursuant to and for the purpose of performing his services as a director for Company. The parties\nacknowledge that irreparable injury and damage will result from disclosure of the secret information to unauthorized\nthird parties or from utilization of the secret information for any purpose other than the purposes described herein. Also,\nDirector shall take all reasonable steps to ensure that the secret information in the Director’s possession remains\nconfidential.\nThe foregoing restrictions shall not be applicable to any information which:\n(@) the Director can show was previously known to him prior to receipt from the Company, without breach of\nan obligation of confidence to any third party;\n(b) is now, or hereafter, comes into the public domain as, for example, by publications, including issued\nUnited States and foreign patents, or is otherwise legally known or available to the public through sources\nother than the Director;\n(c) is subsequently legally disclosed to the Director by a third party not owing obligations of confidence to\nthe Company, or\n(d) is, or will be, developed independently by the Director solely through his affiliates which have not been\nexposed directly or indirectly to the secret information, or\n(e) the Director is obligated to produce as a result of a court order or other valid and legally enforceable\nmandate, provided that the Company has been given notice thereof and an opportunity to waive its rights\nor to seek a protective order or other appropriate remedy.\nFor the purposes of this Section 2, disclosures which provide specific detailed information shall not be deemed to\nbe within the foregoing exceptions merely because they are embraced by more general disclosures in the public domain\nor in the Director’s possession. In addition, any combination of features shall not be deemed to be within the foregoing\nexceptions merely because information about individual components are separately in the public domain or in the\nDirector’s possession, but only if the combination itself and its principle of operation are in the public domain or in the\nlawful possession of the Director without restriction on disclosure.\n2.2 Return of documents. Upon termination of Director’s position as a member of the Company’s Board Of\nDirectors, Director agrees that all documents, records, notebooks and similar repositories of or containing\nsecret information, including copies of such materials, then in its possession, whether prepared by it or others,\nwill be returned to the Company.\n2.3Director acknowledges that the secret information belongs to Company, that Company claims the secret\ninformation comprises trade secrets, claims that the secret information is confidential to Company and that\neach of the obligations assumed by Director in this, and the other paragraphs contained herein, is a material\ninducement to disclose the secret information to Director.\nSection 3. No License Granted\nNothing herein shall be deemed to confer on the Director a license or other right to use the secret information\ndisclosed hereunder for any purpose other than the purposes expressly stated in this Agreement. Specifically and\nwithout limitation, Director shall have no license or right to use any secret information in developing any invention,\ndiscovery, know-how, trade secret, patent, trademark, or copyright.\nSection 4. Enforcement\nIn the event that the Director shall breach this Agreement, or in the event that such breach appears to be an\nimminent possibility, Company shall be entitled to all legal and equitable remedies afforded it by law as a result of the\nbreach (including an injunction restraining the party or parties about to commit any breach of this Agreement, or who\nhave committed a breach of it, without showing or proving any actual damage sustained by Company), and may, in\naddition to any and all other forms of relief, recover from Director all reasonable costs and attorneys' fees encountered\nby it in seeking any such remedy.\nSection 5. Binding Effect\nThis Agreement shall be binding upon the parties to this Agreement and upon their respective executors,\nadministrators, legal representatives, successors and assigns.\nSection 6. Applicable Law\nThis Agreement shall be governed for all purposes by the laws of the State of Delaware, with New Castle County\nas the agreed upon proper venue. The Company shall retain all rights and remedies afforded it under the patent,\ntrademark, copyright and other laws of the United States and the States thereof, and of other countries, including without\nlimitation any laws designed to protect proprietary or secret information.\nIn witness, the parties executed this Agreement on the date first shown above.\nWitness Director\n/s/Gregory E. McKenna /s/Ronald A. Bucchi\nName: Ronald A. Bucchi\nCompany\nLightwave Logic, Inc.\nBy: /s/Thomas E. Zelibor\nName: Thomas E. Zelibor, CEO EX-10 lwlg061412fm8k_ex10z1.htm EXHIBIT 10.1\nDIRECTOR AGREEMENT\nTHIS AGREEMENT made as of June 11, 2012, by and between Lightwave Logic, Inc., located at 121\nContinental Drive, Suite 110, Newark, DE 19713 (the "Company"); and Ronald A. Bucchi ("Director").\nWHEREAS, the Company and the Director desire to enter into an agreement which will set forth the terms and\nconditions upon which the Director shall serve as a director on the Company's Board of Directors.\nNOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, the parties have agreed,\nand do hereby agree, as follows:\nSection 1: Appointment.\nThe Company's Board of Directors appoints the Director as a member of the Company's Board of Directors and\nthe Director accepts such appointment upon the terms and conditions set forth. The Director shall serve as a member of\nthe Company's Board of Directors until his successor is appointed or elected and shall qualify. However, neither the\nCompany, nor any other person, shall be required to cause the continuation, election, or re-appointment of the Director as\na member of the Company's Board of Directors.\nSection 2: Indemnification\nThe Director shall receive the full benefits, protection, and rights of full and complete indemnification from the\nCompany in connection with his position with the Company as a member of the Company's Board of Directors to the\nfullest extent permitted by law. Further, the Director shall be named as an insured on the Company's underwritten\nofficer and director liability insurance policy. The Director shall execute the Indemnification Agreement attached hereto\nas Appendix A, which is incorporated into this Agreement.\nSection 3: Compensation.\nPursuant to the Company's 2007 Employee Stock Plan, the Director will receive an option to purchase up to Two\nHundred Thousand (200,000) shares of restricted common stock of the Company at the strike price of $.90 per share.\nThe options shall vest as follows: (i) fifty thousand (50,000) options shall vest immediately; and (ii) the remaining\noptions shall vest in three (3) equal annual installments of fifty thousand (50,000) options per year commencing on the\n1st day of each one year anniversary of execution of this Agreement. All of the options shall expire on June 10, 2017.\nSection 4: Duties/ Duties/Exten Extent of Services.\nThe Director shall serve as a member of the Board of Directors of the Company, and shall assume the duties that\nthe Chairman of the Board may assign. Subject to Section 6 contained herein, nothing in this Agreement shall be con-\nstrued to limit the Director's freedom to\nengage in other businesses. It is agreed, however, that the Director will devote his best efforts to the needs of the\nCompany, and shall not allow his other business activities to materially interfere with his duties to the Company.\nSection 5: Expenses.\nSubject to prior approval of the Chairman of the Board of Directors, the Director is authorized to incur reasona-\nble expenses on behalf of the Company in performing his duties, including expenses for travel, transportation,\nentertainment, and similar items, which expenses shall be paid by the Company.\nSection 6: Director's Non-Disclosure.\nThe Director shall execute the Director's Non-disclosure Agreement attached hereto as Appendix B, which is\nincorporated into this Agreement.\nSection 7: Waiver of Breach.\nThe waiver by either party of a breach of any provision of this Agreement shall not operate or be construed as a\nwaiver of any subsequent breach.\nSection 8: Entire Agreement\nThis Agreement contains the entire agreement of the parties pertaining to the appointment of the Director to the\nCompany's Board of Directors.\nSection 9: Amendment of Agreement\nNo change or modification of this Agreement shall be valid unless it is in writing and signed by the party against\nwhom the change or modification is sought to be enforced. No change or modification by the Company shall be effective\nunless it is approved by the Company's Board of Directors and signed by an officer specifically authorized to sign such\ndocuments.\nSection 10: Severability of Provisions\nIf any provision of this Agreement, the Indemnification Agreement or the Director's Non-disclosure Agreement\nis invalidated or held unenforceable, the invalidity or unenforceability of that provision or provisions shall not affect the\nvalidity or enforceability of any other provision of this Agreement, the Indemnification Agreement or the Director's\nNon-disclosure Agreement.\nSection 11: Governing Law and Venue\nAll questions regarding the validity and interpretation of this Agreement shall be governed by and construed and\nenforced in all respects in accordance with the laws of the State of Delaware. The sole and proper venue shall be New\nCastle County, Delaware.\nSection 12: Arbitration of Disputes\nIf\na dispute arises out of or relates to this Agreement, or the breach thereof, and if the dispute cannot be settled\nthrough negotiation, the parties agree first to try in good faith to settle the dispute by mediation administered by the\nAmerican Arbitration Association under its Employment Mediation Rules before resorting to arbitration, litigation or\nsome other dispute resolution procedure.\nIN WITNESS, the parties have executed this Agreement in duplicate on the date and year first above written.\nDirector\n/s/Gregory E. McKenna\n/s/Ronald A. Bucchi\nName:\nRonald A. Bucchi\nLightwave Logic, Inc.\nBy: /s/Thomas E. Zelibor\nName:\nThomas E. Zelibor, CEO\n2\nAPPENDIX A\nForm of Indemnification Agreement\n[Incorporated by reference into the registrant's Form 8-K filed on May 8, 2012]\nAPPENDIX B\nDirector's on-Disclosure Agreement\nDIRECTOR'S NON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT made as of June 11, 2012, by and between Lightwave Logic, Inc., located at 111 Ruthar\nDrive, Newark, DE 19711 ("Company"); and Ronald A. Bucchi ("Director"), whose address is 112 Spicewood Lane,\nKensington, CT 06037.\nWHEREAS, Company is a technology company focused on the development of a Next Generation Non-linear\nOptical Polymer Materials Platform for applications in high speed fiber-optic data communications and optical\ncomputing, which involves the development and utilization of information not generally known in the industry or\nindustries in which the Company is or may become engaged.\nWHEREAS, the Company desires to appoint the Director as a member of the Company's Board of Directors and\nthe Director accepts such appointment;\nWHEREAS, in performing his services as a director for Company, Director will necessarily be given access to\n"secret information" (defined below), which will be identified by Company as such; and\nWHEREAS, the use of the secret information by, or its disclosure to, any person or organization other than\nCompany and its employees or Director would be highly detrimental and damaging to Company.\nNOW THEREFORE, with the foregoing recitals being incorporated herein by reference and deemed an\nessential part hereof and in consideration of the mutual promises, covenants and conditions contained herein, the parties\nagree as follows:\nSection 1.\nSecret Information\nFor the purposes of this Agreement, "secret information" shall mean information relating to the Company's\nmethods, concepts, ideas, products, and services which is of a proprietary or confidential nature, whether communicated\norally or in writing, data or sample form, including, without limitation, concepts, techniques, processes, designs, cost\ndata, computer programs, and other know-how that is disclosed to the Director by the Company.\nSection 2.\nNondisclosure of Secret Information\n2.1 Non-disclosure. Director shall not, without the prior written consent of the Company, disclose such secret\ninformation\nto\nany\nthird\nparty,\nincluding\nany\nthird\nparty\nconsultant(s).\nFurther,\nDirector\nshall\nonly\nuse\nthe\nsecret\ninformation pursuant to and for the purpose of performing his services as a director for Company. The parties\nacknowledge that irreparable injury and damage will result from disclosure of the secret information to unauthorized\nthird parties or from utilization of the secret information for any purpose other than the purposes described herein. Also,\nDirector shall take all reasonable steps to ensure that the secret information in the Director's possession remains\nconfidential.\nThe foregoing restrictions shall not be applicable to any information which:\n(a)\nthe Director can show was previously known to him prior to receipt from the Company, without breach of\nan obligation of confidence to any third party;\n(b)\nis now, or hereafter, comes into the public domain as, for example, by publications, including issued\nUnited States and foreign patents, or is otherwise legally known or available to the public through sources\nother than the Director;\n(c)\nis subsequently legally disclosed to the Director by a third party not owing obligations of confidence to\nthe Company, or\n(d)\nis, or will be, developed independently by the Director solely through his affiliates which have not been\nexposed directly or indirectly to the secret information, or\n(e)\nthe Director is obligated to produce as a result of a court order or other valid and legally enforceable\nmandate, provided that the Company has been given notice thereof and an opportunity to waive its rights\nor to seek a protective order or other appropriate remedy.\nFor the purposes of this Section 2, disclosures which provide specific detailed information shall not be deemed to\nbe\nwithin the foregoing exceptions merely because they are embraced by more general disclosures in the public domain\nor in the Director's possession. In addition, any combination of features shall not be deemed to be within the foregoing\nexceptions merely because information about individual components are separately in the public domain or in the\nDirector's possession, but only if the combination itself and its principle of operation are in the public domain or in the\nlawful possession of the Director without restriction on disclosure.\n2.2 Return of documents. Upon termination of Director's position as a member of the Company's Board Of\nDirectors, Director agrees that all documents, records, notebooks and similar repositories of or containing\nsecret information, including copies of such materials, then in its possession, whether prepared by it or others,\nwill be returned to the Company.\n2.3 Director acknowledges that the secret information belongs to Company, that Company claims the secret\ninformation comprises trade secrets, claims that the secret information is confidential to Company and that\neach of the obligations assumed by Director in this, and the other paragraphs contained herein, is a material\ninducement to disclose the secret information to Director.\nSection 3.\nNo License Granted\nNothing herein shall be deemed to confer on the Director a license or other right to use the secret information\ndisclosed hereunder for any purpose other than the purposes expressly stated in this Agreement. Specifically and\nwithout limitation, Director shall have no license or right to use any secret information in developing any invention,\ndiscovery, know-how, trade secret, patent, trademark, or copyright.\nSection 4. Enforcement\nIn the event that the Director shall breach this Agreement, or in the event that such breach appears to be an\nimminent possibility, Company shall be entitled to all legal and equitable remedies afforded it by law as a result of the\nbreach (including an injunction restraining the party or parties about to commit any breach of this Agreement, or who\nhave committed a breach of it, without showing or proving any actual damage sustained by Company), and may, in\naddition to any and all other forms of relief, recover from Director all reasonable costs and attorneys' fees encountered\nby it in seeking any such remedy.\nSection 5.\nBinding Effect\nThis Agreement shall be binding upon the parties to this Agreement and upon their respective executors,\nadministrators, legal representatives, successors and assigns.\nSection 6.\nApplicable Law\nThis Agreement shall be governed for all purposes by the laws of the State of Delaware, with New Castle County\nas the agreed upon proper venue. The Company shall retain all rights and remedies afforded it under the patent,\ntrademark, copyright and other laws of the United States and the States thereof, and of other countries, including without\nlimitation any laws designed to protect proprietary or secret information.\nIn witness, the parties executed this Agreement on the date first shown above.\nWitness\nDirector\n/s/Gregory E. McKenna\n/s/Ronald A. Bucchi\nName:_\nName:\nRonald A. Bucchi\nCompany\nLightwave Logic, Inc.\nBy: /s/Thomas E. Zelibor\nName:_ Name:\nThomas E. Zelibor, CEO EX-10 2 lwlg061412fm8k_ex10z1.htm EXHIBIT 10.1\nDIRECTOR AGREEMENT\nTHIS AGREEMENT made as of June 11, 2012, by and between Lightwave Logic, Inc., located at 121\nContinental Drive, Suite 110, Newark, DE 19713 (the “Company”); and Ronald A. Bucchi (“Director”).\nWHEREAS, the Company and the Director desire to enter into an agreement which will set forth the terms and\nconditions upon which the Director shall serve as a director on the Company’s Board of Directors.\nNOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, the parties have agreed,\nand do hereby agree, as follows:\nSection 1: Appointment.\nThe Company’s Board of Directors appoints the Director as a member of the Company’s Board of Directors and\nthe Director accepts such appointment upon the terms and conditions set forth. The Director shall serve as a member of\nthe Company’s Board of Directors until his successor is appointed or elected and shall qualify. However, neither the\nCompany, nor any other person, shall be required to cause the continuation, election, or re-appointment of the Director as\na member of the Company’s Board of Directors.\nSection 2: Indemnification\nThe Director shall receive the full benefits, protection, and rights of full and complete indemnification from the\nCompany in connection with his position with the Company as a member of the Company’s Board of Directors to the\nfullest extent permitted by law. Further, the Director shall be named as an insured on the Company’s underwritten\nofficer and director liability insurance policy. The Director shall execute the Indemnification Agreement attached hereto\nas Appendix A, which is incorporated into this Agreement.\nSection 3: Compensation.\nPursuant to the Company’s 2007 Employee Stock Plan, the Director will receive an option to purchase up to Two\nHundred Thousand (200,000) shares of restricted common stock of the Company at the strike price of $.90 per share.\nThe options shall vest as follows: (i) fifty thousand (50,000) options shall vest immediately; and (ii) the remaining\noptions shall vest in three (3) equal annual installments of fifty thousand (50,000) options per year commencing on the\n1st day of each one year anniversary of execution of this Agreement. All of the options shall expire on June 10, 2017.\nSection 4: Duties/ Extent of Services.\nThe Director shall serve as a member of the Board of Directors of the Company, and shall assume the duties that\nthe Chairman of the Board may assign. Subject to Section 6 contained herein, nothing in this Agreement shall be con-\nstrued to limit the Director's freedom to\nengage in other businesses. It is agreed, however, that the Director will devote his best efforts to the needs of the\nCompany, and shall not allow his other business activities to materially interfere with his duties to the Company.\nSection 5: Expenses.\nSubject to prior approval of the Chairman of the Board of Directors, the Director is authorized to incur reasona-\nble expenses on behalf of the Company in performing his duties, including expenses for travel, transportation,\nentertainment, and similar items, which expenses shall be paid by the Company.\nSection 6: Director’s Non-Disclosure.\nThe Director shall execute the Director’s Non-disclosure Agreement attached hereto as Appendix B, which is\nincorporated into this Agreement.\nSection 7: Waiver of Breach.\nThe waiver by either party of a breach of any provision of this Agreement shall not operate or be construed as a\nwaiver of any subsequent breach.\nSection 8: Entire Agreement\nThis Agreement contains the entire agreement of the parties pertaining to the appointment of the Director to the\nCompany’s Board of Directors.\nSection 9: Amendment of Agreement\nNo change or modification of this Agreement shall be valid unless it is in writing and signed by the party against\nwhom the change or modification is sought to be enforced. No change or modification by the Company shall be effective\nunless it is approved by the Company’s Board of Directors and signed by an officer specifically authorized to sign such\ndocuments.\nSection 10: Severability of Provisions\nIf any provision of this Agreement, the Indemnification Agreement or the Director’s Non-disclosure Agreement\nis invalidated or held unenforceable, the invalidity or unenforceability of that provision or provisions shall not affect the\nvalidity or enforceability of any other provision of this Agreement, the Indemnification Agreement or the Director ’s\nNon-disclosure Agreement.\nSection 11: Governing Law and Venue\nAll questions regarding the validity and interpretation of this Agreement shall be governed by and construed and\nenforced in all respects in accordance with the laws of the State of Delaware. The sole and proper venue shall be New\nCastle County, Delaware.\nSection 12: Arbitration of Disputes\nIf a dispute arises out of or relates to this Agreement, or the breach thereof, and if the dispute cannot be settled\nthrough negotiation, the parties agree first to try in good faith to settle the dispute by mediation administered by the\nAmerican Arbitration Association under its Employment Mediation Rules before resorting to arbitration, litigation or\nsome other dispute resolution procedure.\nIN WITNESS, the parties have executed this Agreement in duplicate on the date and year first above written.\nDirector\n/s/Gregory E. McKenna\n/s/Ronald A. Bucchi\nName:___________________\nRonald A. Bucchi\nLightwave Logic, Inc.\nBy: /s/Thomas E. Zelibor\nName:___________________\nThomas E. Zelibor, CEO\n2\nAPPENDIX A\nForm of Indemnification Agreement\n[Incorporated by reference into the registrant’s Form 8-K filed on May 8, 2012]\nAPPENDIX B\nDirector’s Non-Disclosure Agreement\nSection 1.\nSection 2.\n2.1\nDIRECTOR’S NON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT made as of June 11, 2012, by and between Lightwave Logic, Inc., located at 111 Ruthar\nDrive, Newark, DE 19711 (“Company”); and Ronald A. Bucchi (“Director”), whose address is 112 Spicewood Lane,\nKensington, CT 06037.\nWHEREAS, Company is a technology company focused on the development of a Next Generation Non-linear\nOptical Polymer Materials Platform for applications in high speed fiber-optic data communications and optical\ncomputing, which involves the development and utilization of information not generally known in the industry or\nindustries in which the Company is or may become engaged.\nWHEREAS, the Company desires to appoint the Director as a member of the Company’s Board of Directors and\nthe Director accepts such appointment;\nWHEREAS, in performing his services as a director for Company, Director will necessarily be given access to\n“secret information” (defined below), which will be identified by Company as such; and\nWHEREAS, the use of the secret information by, or its disclosure to, any person or organization other than\nCompany and its employees or Director would be highly detrimental and damaging to Company.\nNOW THEREFORE, with the foregoing recitals being incorporated herein by reference and deemed an\nessential part hereof and in consideration of the mutual promises, covenants and conditions contained herein, the parties\nagree as follows:\nSecret Information\nFor the purposes of this Agreement, “secret information” shall mean information relating to the Company’s\nmethods, concepts, ideas, products, and services which is of a proprietary or confidential nature, whether communicated\norally or in writing, data or sample form, including, without limitation, concepts, techniques, processes, designs, cost\ndata, computer programs, and other know-how that is disclosed to the Director by the Company.\nNondisclosure of Secret Information\nNon-disclosure. Director shall not, without the prior written consent of the Company, disclose such secret\ninformation to any third party, including any third party consultant(s). Further, Director shall only use the secret\ninformation pursuant to and for the purpose of performing his services as a director for Company. The parties\nacknowledge that irreparable injury and damage will result from disclosure of the secret information to unauthorized\nthird parties or from utilization of the secret information for any purpose other than the purposes described herein. Also,\nDirector shall take all reasonable steps to ensure that the secret information in the Director ’s possession remains\nconfidential.\n(a)\n(b)\n(c)\n(d)\n(e)\n2.2\n2.3\nSection 3.\nThe foregoing restrictions shall not be applicable to any information which:\nthe Director can show was previously known to him prior to receipt from the Company, without breach of\nan obligation of confidence to any third party;\nis now, or hereafter, comes into the public domain as, for example, by publications, including issued\nUnited States and foreign patents, or is otherwise legally known or available to the public through sources\nother than the Director;\nis subsequently legally disclosed to the Director by a third party not owing obligations of confidence to\nthe Company, or\nis, or will be, developed independently by the Director solely through his affiliates which have not been\nexposed directly or indirectly to the secret information, or\nthe Director is obligated to produce as a result of a court order or other valid and legally enforceable\nmandate, provided that the Company has been given notice thereof and an opportunity to waive its rights\nor to seek a protective order or other appropriate remedy.\nFor the purposes of this Section 2, disclosures which provide specific detailed information shall not be deemed to\nbe within the foregoing exceptions merely because they are embraced by more general disclosures in the public domain\nor in the Director ’s possession. In addition, any combination of features shall not be deemed to be within the foregoing\nexceptions merely because information about individual components are separately in the public domain or in the\nDirector’s possession, but only if the combination itself and its principle of operation are in the public domain or in the\nlawful possession of the Director without restriction on disclosure.\nReturn of documents. Upon termination of Director’s position as a member of the Company’s Board Of\nDirectors, Director agrees that all documents, records, notebooks and similar repositories of or containing\nsecret information, including copies of such materials, then in its possession, whether prepared by it or others,\nwill be returned to the Company.\nDirector acknowledges that the secret information belongs to Company, that Company claims the secret\ninformation comprises trade secrets, claims that the secret information is confidential to Company and that\neach of the obligations assumed by Director in this, and the other paragraphs contained herein, is a material\ninducement to disclose the secret information to Director.\nNo License Granted\nNothing herein shall be deemed to confer on the Director a license or other right to use the secret information\ndisclosed hereunder for any purpose other than the purposes expressly stated in this Agreement. Specifically and\nwithout limitation, Director shall have no license or right to use any secret information in developing any invention,\ndiscovery, know-how, trade secret, patent, trademark, or copyright.\nSection 4.\nSection 5.\nSection 6.\nEnforcement\nIn the event that the Director shall breach this Agreement, or in the event that such breach appears to be an\nimminent possibility, Company shall be entitled to all legal and equitable remedies afforded it by law as a result of the\nbreach (including an injunction restraining the party or parties about to commit any breach of this Agreement, or who\nhave committed a breach of it, without showing or proving any actual damage sustained by Company), and may, in\naddition to any and all other forms of relief, recover from Director all reasonable costs and attorneys' fees encountered\nby it in seeking any such remedy.\nBinding Effect\nThis Agreement shall be binding upon the parties to this Agreement and upon their respective executors,\nadministrators, legal representatives, successors and assigns.\nApplicable Law\nThis Agreement shall be governed for all purposes by the laws of the State of Delaware, with New Castle County\nas the agreed upon proper venue. The Company shall retain all rights and remedies afforded it under the patent,\ntrademark, copyright and other laws of the United States and the States thereof, and of other countries, including without\nlimitation any laws designed to protect proprietary or secret information.\nIn witness, the parties executed this Agreement on the date first shown above.\nWitness\nDirector\n/s/Gregory E. McKenna\n/s/Ronald A. Bucchi\nName:___________________\nRonald A. Bucchi\nCompany\nLightwave Logic, Inc.\nBy: /s/Thomas E. Zelibor\nName:___________________\nThomas E. Zelibor, CEO ab46a92eef527dbae20fc09b2741c804.pdf effective_date jurisdiction party term EX-99.(E)(10) 8 dex99e10.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(10)\nCONFIDENTIALITY AGREEMENT\nCONFIDENTIALITY AGREEMENT (this “Agreement”), dated as of March 4, 2007, by and between Webex Communications, Inc., a\nDelaware corporation (including its subsidiaries, the “Company”), and Cisco Systems, Inc., a California corporation (including its subsidiaries,\n“Cisco”).\nWHEREAS, Cisco and the Company are engaging in discussions about a possible transaction between them (the “Transaction”) and in\nconnection with evaluating the Transaction, each party (the “Disclosing Party”) may disclose to the other party (the “Receiving Party”) certain\ninformation relating to the Disclosing Party which is non-public, confidential or proprietary in nature;\nNOW, THEREFORE, the parties hereby agree as follows:\n1. Confidentiality of Information. The Receiving Party and its Representatives (as such term is defined below) (i) will keep the Information (as\nsuch term is defined below) strictly confidential and will not (except as required by applicable law or stock exchange requirement, regulation or legal\nprocess, and only after compliance with paragraph 3 below), without the Disclosing Party’s prior written consent, disclose to any person (as such\nterm is defined below) any Information, and (ii) will not use any Information in any manner (whether for itself, any other person or otherwise) other\nthan solely in connection with its consideration of the Transaction. The Receiving Party further agrees to disclose the Information only to its\nRepresentatives who need to know the Information solely for the purpose of evaluating the Transaction, and who are informed by the Receiving\nParty of the confidential nature of the Information and agree to act in accordance with the terms of this Agreement. In addition, the Receiving Party\nand its Representatives shall take all reasonable actions and precautions to prevent the disclosure, use, copying, duplicating or reproducing of any\nInformation, as well as any information the disclosure of which is limited by the provisions of paragraph 2 below in any manner contrary to the\nprovisions of this Agreement. The term “Information” shall mean, with respect to the Disclosing Party in question, all confidential, proprietary or\nnon-public information (whether furnished before or after the date hereof and whether written, oral, electronic or otherwise) furnished by the\nDisclosing Party or its Representatives to the Receiving Party or its Representatives in connection with the Receiving Party’s evaluation of the\nTransaction. The term “Information” will not, however, include information which (i) is or becomes publicly available other than as a result of a\ndisclosure by the Receiving Party or its Representatives in violation of this Agreement, (ii) is or becomes available to the Receiving Party or any of\nits Representatives on a nonconfidential basis from a source (other than the Disclosing Party or any of its Representatives) which, to the Receiving\nParty’s knowledge is not prohibited from disclosing such information to the Receiving Party, (iii) is known to the Receiving Party or any of its\nRepresentatives prior to disclosure by the Disclosing Party or any of its Representatives, or (iv) is or has been independently developed by the\nReceiving Party without use of any information furnished to it by the Disclosing Party. The term “person” shall mean any natural person,\ncorporation, general partnership, limited partnership, limited liability company, proprietorship, other business organization, trust, union or\nassociation or any court, tribunal, arbitrator, authority, agency, commission, official or other instrumentality of any country or any domestic or\nforeign state, county, city or other political subdivision. The terms of confidentiality under this Agreement shall not be construed to limit either\nparty’s right to independently develop or acquire products without use of, or reference to, the other party’s Information. The Disclosing Party\nacknowledges that the Receiving Party may currently or in the future be developing information internally, or receiving information from other\npersons, that is similar to any Information. Accordingly, nothing in this Agreement shall be construed as a representation or agreement that the\nReceiving Party will not develop, or have developed for it, products, concepts, systems, or techniques that are similar to or compete with the\nConfidentiality Agreement\nPage 2\nproducts, concepts, systems or techniques contemplated by or embodied in any Information, provided that the Receiving Party does not violate any\nof its obligations under this Agreement in connection with such development. Further, each party hereto shall be free to use for any purpose any\ninformation in non-tangible form which may be retained in the unaided memories of persons who have had access to Information, including without\nlimitation ideas, concepts, know-how or techniques contained therein resulting from access to or work with any such Information, provided that such\nparty shall maintain the confidentiality of all such Information as provided herein. Neither party hereto shall have any obligation to limit or restrict\nthe assignment of such persons or to pay royalties for any work resulting from the use of any such information. Nothing in this paragraph 1 shall be\ndeemed to grant either party a license under or to any of the other party’s intellectual property rights. The term “Representative” shall mean, with\nrespect to the party in question, any of such party’s directors, officers, employees, affiliates (such term, as defined in the Securities Exchange Act of\n1934, as amended), representatives (including, without limitation, financial advisors, attorneys and accountants) and agents.\n2. Confidentiality of Transaction and Transaction Status. Without the prior written consent of the other party, neither Cisco nor the Company\nnor any of their respective Representatives will (except as set forth in the proviso below or as required by applicable law or stock exchange\nrequirement, regulation or legal process, and only after compliance with paragraph 3 below) disclose to any person any information regarding a\npossible Transaction or any information relating in any way to the Information, including, without limitation (i) that any investigations, discussions\nor negotiations are taking or have taken place concerning a possible Transaction, including the status thereof or the termination of such discussions\nor negotiations, (ii) any of the terms, conditions or other facts with respect to any such possible Transaction or its consideration of a possible\nTransaction, or (iii) that this Agreement exists, that Information exists or has been requested or made available or any opinion or view with respect to\nthe Transaction or the Information; provided, however, that the Company may disclose the existence of this Agreement and provide a copy thereof to\nthe counterparty (and such counterparty’s representatives) to an agreement relating to a Significant Event if such disclosure and provision is required\nby the terms of such agreement.\n3. Mandatory Requests from Governmental Agencies for Information. In the event that the Receiving Party or any of its Representatives are\nrequested or required by any government or governmental agency or authority (by oral questions, interrogatories, requests for information or\ndocuments, subpoena, civil investigative demand, any informal or formal investigation by any government or governmental agency or authority or\notherwise) to disclose any of the Information or any information the disclosure of which is limited by the provisions of paragraph 2 above\n(collectively, the “Compelled Information”), the Receiving Party will notify the Disclosing Party promptly in writing so that the Disclosing Party\nmay seek a protective order or other appropriate remedy or, in the Disclosing Party’s sole discretion, waive compliance with the terms of this\nAgreement. The Receiving Party and its Representatives agree not to oppose any action by the Disclosing Party to obtain a protective order or other\nappropriate remedy and shall cooperate fully with the Disclosing Party in connection therewith. In the event that no such protective order or other\nremedy is obtained, or that the Disclosing Party waives compliance with the terms of this Agreement or, in the absence of such protective order,\nother remedy or the waiver by the Disclosing Party and where the Receiving Party or its Representatives have been advised by counsel that is legally\ncompelled to disclose the Compelled Information, the Receiving Party and its Representatives will furnish only that portion of the Compelled\nInformation which the Receiving Party is advised by counsel is legally required and will exercise its reasonable efforts to obtain reliable assurance\nthat confidential treatment will be accorded such Compelled Information.\nConfidentiality Agreement\nPage 3\n4. Return of Information. At any time at the Disclosing Party’s written request, the Receiving Party and its Representatives agree to return\npromptly all Information to the Disclosing Party, and no copies, extracts or other reproductions of the Information shall be retained by the Receiving\nParty or its Representatives; provided, that any analyses, compilations, forecasts, studies, summaries, notes, data or other documents or materials\nprepared by the Receiving Party or its Representatives, in lieu of being returned to the Disclosing Party, may be destroyed by the Receiving Party\n(except to the extent such destruction is prohibited).\n5. No Obligation to Consummate Transaction. Each party hereto acknowledges and agrees that the other party has made no decision to pursue\nany Transaction and agrees that the other party will have the right in its sole discretion, without giving any reason therefor, at any time to terminate\ndiscussions concerning a possible Transaction or to elect not to pursue any such Transaction. In addition, each party hereto agrees that, except for the\nmatters specifically agreed to herein or in written agreements subsequently entered into between the parties, no contract or agreement providing for\nany Transaction involving the other party or any of its Representatives shall be deemed to exist, and the other party shall not be under any legal\nobligation of any kind whatsoever with respect to any such Transaction by virtue of this or any other written or oral expression with respect to such a\nTransaction by any of its Representatives, unless and until a definitive acquisition agreement or in written agreements subsequently entered into\nbetween the parties, if any, with respect to such Transaction has been executed and delivered by each such party.\n6. No Representations as to the Accuracy of the Information. The Receiving Party and its Representatives acknowledge that neither the\nDisclosing Party nor any of its Representatives makes any express or implied representation or warranty as to the accuracy or completeness of the\nInformation. The Receiving Party and its Representatives agree that they will be entitled to rely solely on such representations and warranties as may\nbe included in definitive agreements (if any) with respect to the Transaction, subject to such limitations and restrictions as may be contained therein.\n7. Standstill. Cisco agrees that, for a period commencing on the date hereof and ending on the earlier of (i) the date that is twelve (12) months\nfollowing the date of this Agreement or (ii) the occurrence of a Significant Event (as such terms is defined below), neither it nor any of its controlled\nsubsidiaries will, without the prior written consent of the Company: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by\npurchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of the Company; (ii) make, or participate in,\ndirectly or indirectly, any “solicitation” of “proxies” (as such terms are defined under the rules of the Securities and Exchange Commission) to vote,\nor seek to advise or influence any person with respect to the voting of, any voting securities of the Company; (iii) make any public announcement\nwith respect to any acquisition transaction involving the Company or its securities, or submit to the Company a proposal for any acquisition\ntransaction involving the Company or its securities in a manner reasonably likely to require the Company to make a public announcement with\nrespect to such proposal; (iv) form, join or participate in any “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended) in connection with any of the foregoing, or (v) instigate, encourage or assist any third party to do any of the foregoing. For purposes of\nthis letter agreement, “Significant Event” shall mean the entry by the Company into a definitive agreement providing for (x) any acquisition or\npurchase from the Company by any person or “group” (within the meaning of Section 13(d)(3) of the Exchange Act) of 50% or more of the then\noutstanding voting securities of the Company, (y) any merger, tender offer, consolidation, business combination or similar transaction involving the\nCompany pursuant to which the stockholders of the Company immediately\nConfidentiality Agreement\nPage 4\npreceding such transaction hold less than 50% of the outstanding voting securities of the surviving or resulting entity of such transaction and hold\nless than 50% of the outstanding voting securities of any entity that controls such surviving or resulting entity; or (z) any sale, lease or exchange of\nall or substantially all of the assets of the Company and its subsidiaries, taken as a whole.\n8. Securities Law Restrictions. Each party represents that it is aware, and agrees that it will advise its Representatives who are informed of the\nmatters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by\nany person who has received material, non-public information from the issuer of such securities and on the communication of such information to\nany other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such\ninformation.\n9. Non-Solicitation of Employees. Each Party hereto agrees that, without the prior written consent of the other Party, those of such first Party’s\nSpecified Employees (as such term is defined below) who have been directly involved in the evaluation of the Transaction will not, for a period of\ntwelve (12) months from the date hereof, directly solicit for employment with such Party or any of its subsidiaries any Specified Employee of the\nother Party; provided that the foregoing shall not preclude either Party from making any general solicitation for employees (through the engagement\nof search firms, public advertising or otherwise) not directed at the Specified Employees of the other Party or from hiring any person who responds\nto such a general solicitation. For purposes of this letter agreement, a “Specified Employee” of a Party means any senior executive (Vice President\nlevel or above) who is employed by such Party as of the date hereof or at any time hereafter and with respect to whom a Specified Employee of the\nother Party has learned the identity of such person either as a result of having had access to any Information in connection with the Transaction or\nhas first met such person in connection with the evaluation of the Transaction.\n10. Miscellaneous.\n(a) Injunctive Relief. It is agreed that the Disclosing Party would be irreparably injured by a breach of this Agreement by the Receiving\nParty or any of its Representatives, that monetary remedies would be inadequate to protect the Disclosing Party against any actual or\nthreatened breach of this Agreement by the Receiving Party or any of its Representatives, and, without prejudice to any other rights and\nremedies otherwise available to the Disclosing Party, the Receiving Party, on behalf of itself and its Representatives, agrees to the granting of\nequitable relief, including injunctive relief and specific performance, in favor of the Disclosing Party without proof of actual damages and\nwithout any need to secure or post any bond in connection therewith.\n(b) Severability. If any provision of this Agreement shall, for any reason, be adjudged by any court of competent jurisdiction to be\ninvalid or unenforceable, such judgment shall not affect, impair or invalidate the remainder of this Agreement but shall be confined in its\noperation to the provision of this Agreement directly involved in the controversy in which such judgment shall have been rendered.\n(c) Successors and Assigns. This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their\nrespective successors and assigns.\nConfidentiality Agreement\nPage 5\n(d) Modifications to Agreement; Waivers. No modifications of or changes to this Agreement or waiver of the terms and conditions hereof\nwill be binding upon the Company or Cisco, unless approved in writing and signed by both the Company and Cisco. It is further agreed that no\nfailure or delay in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n(e) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without\nregard to the principles of conflict of laws thereof. Each party (a) consents to submit itself to the personal jurisdiction of any federal court\nlocated in the State of Delaware or any Delaware state court in the event of any dispute of any kind or nature with respect to or arising out of\nthis Agreement, (b) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from such\ncourt, and (c) agrees that it will not bring any action with respect to or arising out of this Agreement in any court other than a federal court\nsitting in the State of Delaware or a Delaware state court.\n(f) Termination. Each party’s obligations hereunder with respect to Information shall terminate on the second anniversary of the date of\nthis Agreement; provided that all matters related thereto in respect of which a claim has been made or an action or proceeding has been\ninstituted on or prior to such date shall survive the expiration of such period until such claim, action or proceeding is finally resolved.\n(g) Entire Agreement. This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the\nsubject matter of this Agreement and supersedes all prior agreements with respect thereto.\n(h) Notices. All notices hereunder shall be in writing and shall be deemed to have been duly given when delivered by messenger or by\novernight courier service (with confirmation of receipt) or by facsimile (upon confirmation of receipt), in each case as follows:\n(1) if to the Company:\nWebex Communications, Inc.\nc/o Pillsbury Winthrop Shaw Pittman LLP\n2475 Hanover Street\nPalo Alto, California 94304-1114\nFacsimile: (650) 233-4545\nAttn: Jorge A. del Calvo, Esq.\n(2) if to Cisco:\nCisco Systems, Inc.\n170 West Tasman Drive\nSan Jose, California 95134-1706\nFacsimile: (408) 525-4757\nAttn: General Counsel\nConfidentiality Agreement\nPage 6\n(i) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one instrument.\n[The remainder of this page is intentionally left blank.]\nConfidentiality Agreement\nPage 7\nIN WITNESS WHEREOF, the parties hereto have caused this Confidentiality Agreement to be executed and delivered as of the date first\nwritten above.\nWEBEX COMMUNICATIONS, INC.\nBy: /s/ David Farrington\nName: David Farrington\nTitle: Vice President, General Counsel\nCISCO SYSTEMS, INC.\nBy: /s/ Mark T. Gorman\nName: Mark T. Gorman\nTitle: Director, Mergers & Acquisitions EX-99.(E)(10) 8 dex99e10.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(10)\nCONFIDENTIALITY AGREEMENT\nCONFIDENTIALITY AGREEMENT (this “Agreement”), dated as of March 4, 2007, by and between Webex Communications, Inc., a\nDelaware corporation (including its subsidiaries, the “Company”), and Cisco Systems, Inc., a California corporation (including its subsidiaries,\n“Cisco”).\nWHEREAS, Cisco and the Company are engaging in discussions about a possible transaction between them (the “Transaction™) and in\nconnection with evaluating the Transaction, each party (the “Disclosing Party”) may disclose to the other party (the “Receiving Party”) certain\ninformation relating to the Disclosing Party which is non-public, confidential or proprietary in nature;\nNOW, THEREFORE, the parties hereby agree as follows:\n1. Confidentiality of Information. The Receiving Party and its Representatives (as such term is defined below) (i) will keep the Information (as\nsuch term is defined below) strictly confidential and will not (except as required by applicable law or stock exchange requirement, regulation or legal\nprocess, and only after compliance with paragraph 3 below), without the Disclosing Party’s prior written consent, disclose to any person (as such\nterm is defined below) any Information, and (ii) will not use any Information in any manner (whether for itself, any other person or otherwise) other\nthan solely in connection with its consideration of the Transaction. The Receiving Party further agrees to disclose the Information only to its\nRepresentatives who need to know the Information solely for the purpose of evaluating the Transaction, and who are informed by the Receiving\nParty of the confidential nature of the Information and agree to act in accordance with the terms of this Agreement. In addition, the Receiving Party\nand its Representatives shall take all reasonable actions and precautions to prevent the disclosure, use, copying, duplicating or reproducing of any\nInformation, as well as any information the disclosure of which is limited by the provisions of paragraph 2 below in any manner contrary to the\nprovisions of this Agreement. The term “Information” shall mean, with respect to the Disclosing Party in question, all confidential, proprietary or\nnon-public information (whether furnished before or after the date hereof and whether written, oral, electronic or otherwise) furnished by the\nDisclosing Party or its Representatives to the Receiving Party or its Representatives in connection with the Receiving Party’s evaluation of the\nTransaction. The term “Information” will not, however, include information which (i) is or becomes publicly available other than as a result of a\ndisclosure by the Receiving Party or its Representatives in violation of this Agreement, (ii) is or becomes available to the Receiving Party or any of\nits Representatives on a nonconfidential basis from a source (other than the Disclosing Party or any of its Representatives) which, to the Receiving\nParty’s knowledge is not prohibited from disclosing such information to the Receiving Party, (iii) is known to the Receiving Party or any of its\nRepresentatives prior to disclosure by the Disclosing Party or any of its Representatives, or (iv) is or has been independently developed by the\nReceiving Party without use of any information furnished to it by the Disclosing Party. The term “person” shall mean any natural person,\ncorporation, general partnership, limited partnership, limited liability company, proprietorship, other business organization, trust, union or\nassociation or any court, tribunal, arbitrator, authority, agency, commission, official or other instrumentality of any country or any domestic or\nforeign state, county, city or other political subdivision. The terms of confidentiality under this Agreement shall not be construed to limit either\nparty’s right to independently develop or acquire products without use of, or reference to, the other party’s Information. The Disclosing Party\nacknowledges that the Receiving Party may currently or in the future be developing information internally, or receiving information from other\npersons, that is similar to any Information. Accordingly, nothing in this Agreement shall be construed as a representation or agreement that the\nReceiving Party will not develop, or have developed for it, products, concepts, systems, or techniques that are similar to or compete with the\nConfidentiality Agreement\nPage 2\nproducts, concepts, systems or techniques contemplated by or embodied in any Information, provided that the Receiving Party does not violate any\nof its obligations under this Agreement in connection with such development. Further, each party hereto shall be free to use for any purpose any\ninformation in non-tangible form which may be retained in the unaided memories of persons who have had access to Information, including without\nlimitation ideas, concepts, know-how or techniques contained therein resulting from access to or work with any such Information, provided that such\nparty shall maintain the confidentiality of all such Information as provided herein. Neither party hereto shall have any obligation to limit or restrict\nthe assignment of such persons or to pay royalties for any work resulting from the use of any such information. Nothing in this paragraph 1 shall be\ndeemed to grant either party a license under or to any of the other party’s intellectual property rights. The term “Representative” shall mean, with\nrespect to the party in question, any of such party’s directors, officers, employees, affiliates (such term, as defined in the Securities Exchange Act of\n1934, as amended), representatives (including, without limitation, financial advisors, attorneys and accountants) and agents.\n2. Confidentiality of Transaction and Transaction Status. Without the prior written consent of the other party, neither Cisco nor the Company\nnor any of their respective Representatives will (except as set forth in the proviso below or as required by applicable law or stock exchange\nrequirement, regulation or legal process, and only after compliance with paragraph 3 below) disclose to any person any information regarding a\npossible Transaction or any information relating in any way to the Information, including, without limitation (i) that any investigations, discussions\nor negotiations are taking or have taken place concerning a possible Transaction, including the status thereof or the termination of such discussions\nor negotiations, (ii) any of the terms, conditions or other facts with respect to any such possible Transaction or its consideration of a possible\nTransaction, or (iii) that this Agreement exists, that Information exists or has been requested or made available or any opinion or view with respect to\nthe Transaction or the Information; provided, however, that the Company may disclose the existence of this Agreement and provide a copy thereof to\nthe counterparty (and such counterparty’s representatives) to an agreement relating to a Significant Event if such disclosure and provision is required\nby the terms of such agreement.\n3. Mandatory Requests from Governmental Agencies for Information. In the event that the Receiving Party or any of its Representatives are\nrequested or required by any government or governmental agency or authority (by oral questions, interrogatories, requests for information or\ndocuments, subpoena, civil investigative demand, any informal or formal investigation by any government or governmental agency or authority or\notherwise) to disclose any of the Information or any information the disclosure of which is limited by the provisions of paragraph 2 above\n(collectively, the “Compelled Information™), the Receiving Party will notify the Disclosing Party promptly in writing so that the Disclosing Party\nmay seek a protective order or other appropriate remedy or, in the Disclosing Party’s sole discretion, waive compliance with the terms of this\nAgreement. The Receiving Party and its Representatives agree not to oppose any action by the Disclosing Party to obtain a protective order or other\nappropriate remedy and shall cooperate fully with the Disclosing Party in connection therewith. In the event that no such protective order or other\nremedy is obtained, or that the Disclosing Party waives compliance with the terms of this Agreement or, in the absence of such protective order,\nother remedy or the waiver by the Disclosing Party and where the Receiving Party or its Representatives have been advised by counsel that is legally\ncompelled to disclose the Compelled Information, the Receiving Party and its Representatives will furnish only that portion of the Compelled\nInformation which the Receiving Party is advised by counsel is legally required and will exercise its reasonable efforts to obtain reliable assurance\nthat confidential treatment will be accorded such Compelled Information.\nConfidentiality Agreement\nPage 3\n4. Return of Information. At any time at the Disclosing Party’s written request, the Receiving Party and its Representatives agree to return\npromptly all Information to the Disclosing Party, and no copies, extracts or other reproductions of the Information shall be retained by the Receiving\nParty or its Representatives; provided, that any analyses, compilations, forecasts, studies, summaries, notes, data or other documents or materials\nprepared by the Receiving Party or its Representatives, in lieu of being returned to the Disclosing Party, may be destroyed by the Receiving Party\n(except to the extent such destruction is prohibited).\n5. No Obligation to Consummate Transaction. Each party hereto acknowledges and agrees that the other party has made no decision to pursue\nany Transaction and agrees that the other party will have the right in its sole discretion, without giving any reason therefor, at any time to terminate\ndiscussions concerning a possible Transaction or to elect not to pursue any such Transaction. In addition, each party hereto agrees that, except for the\nmatters specifically agreed to herein or in written agreements subsequently entered into between the parties, no contract or agreement providing for\nany Transaction involving the other party or any of its Representatives shall be deemed to exist, and the other party shall not be under any legal\nobligation of any kind whatsoever with respect to any such Transaction by virtue of this or any other written or oral expression with respect to such a\nTransaction by any of its Representatives, unless and until a definitive acquisition agreement or in written agreements subsequently entered into\nbetween the parties, if any, with respect to such Transaction has been executed and delivered by each such party.\n6. No Representations as to the Accuracy of the Information. The Receiving Party and its Representatives acknowledge that neither the\nDisclosing Party nor any of its Representatives makes any express or implied representation or warranty as to the accuracy or completeness of the\nInformation. The Receiving Party and its Representatives agree that they will be entitled to rely solely on such representations and warranties as may\nbe included in definitive agreements (if any) with respect to the Transaction, subject to such limitations and restrictions as may be contained therein.\n7. Standstill. Cisco agrees that, for a period commencing on the date hereof and ending on the earlier of (i) the date that is twelve (12) months\nfollowing the date of this Agreement or (ii) the occurrence of a Significant Event (as such terms is defined below), neither it nor any of its controlled\nsubsidiaries will, without the prior written consent of the Company: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by\npurchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of the Company; (ii) make, or participate in,\ndirectly or indirectly, any “solicitation” of “proxies” (as such terms are defined under the rules of the Securities and Exchange Commission) to vote,\nor seek to advise or influence any person with respect to the voting of, any voting securities of the Company; (iii) make any public announcement\nwith respect to any acquisition transaction involving the Company or its securities, or submit to the Company a proposal for any acquisition\ntransaction involving the Company or its securities in a manner reasonably likely to require the Company to make a public announcement with\nrespect to such proposal; (iv) form, join or participate in any “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended) in connection with any of the foregoing, or (v) instigate, encourage or assist any third party to do any of the foregoing. For purposes of\nthis letter agreement, “Significant Event” shall mean the entry by the Company into a definitive agreement providing for (x) any acquisition or\npurchase from the Company by any person or “group” (within the meaning of Section 13(d)(3) of the Exchange Act) of 50% or more of the then\noutstanding voting securities of the Company, (y) any merger, tender offer, consolidation, business combination or similar transaction involving the\nCompany pursuant to which the stockholders of the Company immediately\nConfidentiality Agreement\nPage 4\npreceding such transaction hold less than 50% of the outstanding voting securities of the surviving or resulting entity of such transaction and hold\nless than 50% of the outstanding voting securities of any entity that controls such surviving or resulting entity; or (z) any sale, lease or exchange of\nall or substantially all of the assets of the Company and its subsidiaries, taken as a whole.\n8. Securities Law Restrictions. Each party represents that it is aware, and agrees that it will advise its Representatives who are informed of the\nmatters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by\nany person who has received material, non-public information from the issuer of such securities and on the communication of such information to\nany other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such\ninformation.\n9. Non-Solicitation of Employees. Each Party hereto agrees that, without the prior written consent of the other Party, those of such first Party’s\nSpecified Employees (as such term is defined below) who have been directly involved in the evaluation of the Transaction will not, for a period of\ntwelve (12) months from the date hereof, directly solicit for employment with such Party or any of its subsidiaries any Specified Employee of the\nother Party; provided that the foregoing shall not preclude either Party from making any general solicitation for employees (through the engagement\nof search firms, public advertising or otherwise) not directed at the Specified Employees of the other Party or from hiring any person who responds\nto such a general solicitation. For purposes of this letter agreement, a “Specified Employee” of a Party means any senior executive (Vice President\nlevel or above) who is employed by such Party as of the date hereof or at any time hereafter and with respect to whom a Specified Employee of the\nother Party has learned the identity of such person either as a result of having had access to any Information in connection with the Transaction or\nhas first met such person in connection with the evaluation of the Transaction.\n10. Miscellaneous.\n(a) Injunctive Relief. It is agreed that the Disclosing Party would be irreparably injured by a breach of this Agreement by the Receiving\nParty or any of its Representatives, that monetary remedies would be inadequate to protect the Disclosing Party against any actual or\nthreatened breach of this Agreement by the Receiving Party or any of its Representatives, and, without prejudice to any other rights and\nremedies otherwise available to the Disclosing Party, the Receiving Party, on behalf of itself and its Representatives, agrees to the granting of\nequitable relief, including injunctive relief and specific performance, in favor of the Disclosing Party without proof of actual damages and\nwithout any need to secure or post any bond in connection therewith.\n(b) Severability. If any provision of this Agreement shall, for any reason, be adjudged by any court of competent jurisdiction to be\ninvalid or unenforceable, such judgment shall not affect, impair or invalidate the remainder of this Agreement but shall be confined in its\noperation to the provision of this Agreement directly involved in the controversy in which such judgment shall have been rendered.\n(c) Successors and Assigns. This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their\nrespective successors and assigns.\nConfidentiality Agreement\nPage 5\n \n(d) Modifications to Agreement; Waivers. No modifications of or changes to this Agreement or waiver of the terms and conditions hereof\nwill be binding upon the Company or Cisco, unless approved in writing and signed by both the Company and Cisco. It is further agreed that no\nfailure or delay in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n(e) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without\nregard to the principles of conflict of laws thereof. Each party (a) consents to submit itself to the personal jurisdiction of any federal court\nlocated in the State of Delaware or any Delaware state court in the event of any dispute of any kind or nature with respect to or arising out of\nthis Agreement, (b) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from such\ncourt, and (c) agrees that it will not bring any action with respect to or arising out of this Agreement in any court other than a federal court\nsitting in the State of Delaware or a Delaware state court.\n(f) Termination. Each party’s obligations hereunder with respect to Information shall terminate on the second anniversary of the date of\nthis Agreement; provided that all matters related thereto in respect of which a claim has been made or an action or proceeding has been\ninstituted on or prior to such date shall survive the expiration of such period until such claim, action or proceeding is finally resolved.\n(g) Entire Agreement. This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the\nsubject matter of this Agreement and supersedes all prior agreements with respect thereto.\n \n \n(h) Notices. All notices hereunder shall be in writing and shall be deemed to have been duly given when delivered by messenger or by\novernight courier service (with confirmation of receipt) or by facsimile (upon confirmation of receipt), in each case as follows:\n(1) if to the Company:\nWebex Communications, Inc.\nc/o Pillsbury Winthrop Shaw Pittman LLP\n2475 Hanover Street\nPalo Alto, California 94304-1114\nFacsimile: (650) 233-4545\nAttn: Jorge A. del Calvo, Esq.\n(2) ifto Cisco:\nCisco Systems, Inc.\n170 West Tasman Drive\nSan Jose, California 95134-1706\nFacsimile: (408) 525-4757\nAttn: General Counsel\nConfidentiality Agreement\nPage 6\n(i) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one instrument.\n \n[The remainder of this page is intentionally left blank.]\nConfidentiality Agreement\nPage 7\nIN WITNESS WHEREOF, the parties hereto have caused this Confidentiality Agreement to be executed and delivered as of the date first\nwritten above.\nWEBEX COMMUNICATIONS, INC.\nBy: /s/ David Farrington\nName: David Farrington\nTitle: Vice President, General Counsel\nCISCO SYSTEMS, INC.\nBy: /s/ Mark T. Gorman\nName: Mark T. Gorman\nTitle: Director, Mergers & Acquisitions EX-99.(E)(10) 8 dex99e10.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(10)\nCONFIDENTIALITY AGREEMENT\nCONFIDENTIALITY AGREEMENT (this "Agreement"), dated as of March 4, 2007, by and between Webex Communications, Inc., a\nDelaware corporation (including its subsidiaries, the "Company"), and Cisco Systems, Inc., a California corporation (including its subsidiaries,\n"Cisco").\nWHEREAS, Cisco and the Company are engaging in discussions about a possible transaction between them (the "Transaction") and in\nconnection with evaluating the Transaction, each party (the "Disclosing Party") may disclose to the other party (the "Receiving Party") certain\ninformation relating to the Disclosing Party which is non-public, confidential or proprietary in nature;\nNOW, THEREFORE, the parties hereby agree as follows:\n1. Confidentiality of Information. The Receiving Party and its Representatives (as such term is defined below) (i) will keep the Information (as\nsuch term is defined below) strictly confidential and will not (except as required by applicable law or stock exchange requirement, regulation or legal\nprocess, and only after compliance with paragraph 3 below), without the Disclosing Party's prior written consent, disclose to any person (as such\nterm is defined below) any Information, and (ii) will not use any Information in any manner (whether for itself, any other person or otherwise) other\nthan solely in connection with its consideration of the Transaction. The Receiving Party further agrees to disclose the Information only to its\nRepresentatives who need to know the Information solely for the purpose of evaluating the Transaction, and who are informed by the Receiving\nParty of the confidential nature of the Information and agree to act in accordance with the terms of this Agreement. In addition, the Receiving Party\nand its Representatives shall take all reasonable actions and precautions to prevent the disclosure, use, copying, duplicating or reproducing of any\nInformation, as well as any information the disclosure of which is limited by the provisions of paragraph 2 below in any manner contrary to the\nprovisions of this Agreement. The term "Information" shall mean, with respect to the Disclosing Party in question, all confidential, proprietary or\nnon-public information (whether furnished before or after the date hereof and whether written, oral, electronic or otherwise) furnished by the\nDisclosing Party or its Representatives to the Receiving Party or its Representatives in connection with the Receiving Party's evaluation of the\nTransaction. The term "Information" will not, however, include information which (i) is or becomes publicly available other than as a result of\na\ndisclosure by the Receiving Party or its Representatives in violation of this Agreement, (ii) is or becomes available to the Receiving Party or any of\nits Representatives on a nonconfidential basis from a source (other than the Disclosing Party or any of its Representatives) which, to the Receiving\nParty's knowledge is not prohibited from disclosing such information to the Receiving Party, (iii) is known to the Receiving Party or any of its\nRepresentatives prior to disclosure by the Disclosing Party or any of its Representatives, or (iv) is or has been independently developed by the\nReceiving Party without use of any information furnished to it by the Disclosing Party. The term "person" shall mean any natural person,\ncorporation, general partnership, limited partnership, limited liability company, proprietorship, other business organization, trust, union or\nassociation or any court, tribunal, arbitrator, authority, agency, commission, official or other instrumentality of any country or any domestic\nor\nforeign\nstate,\ncounty,\ncity\nor\nother\npolitical\nsubdivision\nThe\nterms\nof\nconfidentiality\nunder\nthis\nAgreement\nshall\nnot\nbe\nconstrued\nto\nlimit\neither\nparty's right to independently develop or acquire products without use of, or reference to, the other party's Information. The Disclosing Party\nacknowledges that the Receiving Party may currently or in the future be developing information internally, or receiving information from other\npersons, that is similar to any Information. Accordingly, nothing in this Agreement shall be construed as a representation or agreement that\nthe\nReceiving Party will not develop, or have developed for it, products, concepts, systems, or techniques that are similar to or compete with the\nConfidentiality Agreement\nPage 2\nproducts, concepts, systems or techniques contemplated by or embodied in any Information, provided that the Receiving Party does not violate any\nof its obligations under this Agreement in connection with such development. Further, each party hereto shall be free to use for any purpose any\ninformation in non-tangible form which may be retained in the unaided memories of persons who have had access to Information, including without\nlimitation ideas, concepts, know-how or techniques contained therein resulting from access to or work with any such Information, provided that such\nparty shall maintain the confidentiality of all such Information as provided herein. Neither party hereto shall have any obligation to limit or restrict\nthe assignment of such persons or to pay royalties for any work resulting from the use of any such information. Nothing in this paragraph 1 shall\nbe\ndeemed to grant either party a license under or to any of the other party's intellectual property rights. The term "Representative" shall mean, with\nrespect to the party in question, any of such party's directors, officers, employees, affiliates (such term, as defined in the Securities Exchange Act of\n1934, as amended), representatives (including, without limitation, financial advisors, attorneys and accountants) and agents.\n2. Confidentiality. of Transaction and Transaction Status. Without the prior written consent of the other party, neither Cisco nor the Company\nnor any of their respective Representatives will (except as set forth in the proviso below or as required by applicable law or stock exchange\nrequirement, regulation or legal process, and only after compliance with paragraph 3 below) disclose to any person any information regarding\na\npossible Transaction or any information relating in any way to the Information, including, without limitation (i) that any investigations, discussions\nor negotiations are taking or have taken place concerning a possible Transaction, including the status thereof or the termination of such discussions\nor\nnegotiations, (ii) any of the terms, conditions or other facts with respect to any such possible Transaction or its consideration of a possible\nTransaction, or (iii) that this Agreement exists, that Information exists or has been requested or made available or any opinion or view with respect to\nthe Transaction or the Information; provided, however, that the Company may disclose the existence of this Agreement and provide a copy thereof to\nthe counterparty (and such counterparty's representatives) to an agreement relating to a Significant Event if such disclosure and provision is required\nby the terms of such agreement.\n3. Mandatory Requests from Governmental Agencies for Information. In the event that the Receiving Party or any of its Representatives\nare\nrequested or required by any government or governmental agency or authority (by oral questions, interrogatories, requests for information or\ndocuments, subpoena, civil investigative demand, any informal or formal investigation by any government or governmental agency or authority\nor\notherwise) to disclose any of the Information or any information the disclosure of which is limited by the provisions of paragraph 2 above\n(collectively, the "Compelled Information"), the Receiving Party will notify the Disclosing Party promptly in writing so that the Disclosing Party\nmay seek a protective order or other appropriate remedy or, in the Disclosing Party's sole discretion, waive compliance with the terms of this\nAgreement. The Receiving Party and its Representatives agree not to oppose any action by the Disclosing Party to obtain a protective order or other\nappropriate remedy and shall cooperate fully with the Disclosing Party in connection therewith. In the event that no such protective order or other\nremedy is obtained, or that the Disclosing Party waives compliance with the terms of this Agreement or, in the absence of such protective order,\nother remedy or the waiver by the Disclosing Party and where the Receiving Party or its Representatives have been advised by counsel that is legally\ncompelled to disclose the Compelled Information, the Receiving Party and its Representatives will furnish only that portion of the Compelled\nInformation which the Receiving Party is advised by counsel is legally required and will exercise its reasonable efforts to obtain reliable assurance\nthat confidential treatment will be accorded such Compelled Information.\nConfidentiality Agreement\nPage 3\n4. Return of Information. At any time at the Disclosing Party's written request, the Receiving Party and its Representatives agree to return\npromptly all Information to the Disclosing Party, and no copies, extracts or other reproductions of the Information shall be retained by the Receiving\nParty\nor its Representatives; provided, that any analyses, compilations, forecasts, studies, summaries, notes, data or other documents or materials\nprepared by the Receiving Party or its Representatives, in lieu of being returned to the Disclosing Party, may be destroyed by the Receiving Party\n(except to the extent such destruction is prohibited).\n5. No Obligation to Consummate Transaction. Each party hereto acknowledges and agrees that the other party has made no decision to pursue\nany Transaction and agrees that the other party will have the right in its sole discretion, without giving any reason therefor, at any time to terminate\ndiscussions concerning a possible Transaction or to elect not to pursue any such Transaction. In addition, each party hereto agrees that, except for the\nmatters specifically agreed to herein or in written agreements subsequently entered into between the parties, no contract or agreement providing for\nany Transaction involving the other party or any of its Representatives shall be deemed to exist, and the other party shall not be under any legal\nobligation\nof\nany\nkind\nwhatsoever\nwith\nrespect\nto\nany\nsuch\nTransaction\nby\nvirtue\nof\nthis\nor\nany\nother\nwritten\nor\noral\nexpression\nwith\nrespect\nto\nsuch\na\nTransaction by any of its Representatives, unless and until a definitive acquisition agreement or in written agreements subsequently entered into\nbetween the parties, if any, with respect to such Transaction has been executed and delivered by each such party.\n6. No Representations as to the Accuracy. of the Information. The Receiving Party and its Representatives acknowledge that neither the\nDisclosing Party nor any of its Representatives makes any express or implied representation or warranty as to the accuracy or completeness of\nthe\nInformation. The Receiving Party and its Representatives agree that they will be entitled to rely solely on such representations and warranties as may\nbe included in definitive agreements (if any) with respect to the Transaction, subject to such limitations and restrictions as may be contained therein\n7. Standstill. Cisco agrees that, for a period commencing on the date hereof and ending on the earlier of (i) the date that is twelve (12) months\nfollowing the date of this Agreement or (ii) the occurrence of a Significant Event (as such terms is defined below), neither it nor any of its controlled\nsubsidiaries will, without the prior written consent of the Company: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by\npurchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of the Company; (ii) make, or participate in,\ndirectly or indirectly, any "solicitation" of "proxies" (as such terms are defined under the rules of the Securities and Exchange Commission) to vote,\nor seek to advise or influence any person with respect to the voting of, any voting securities of the Company; (iii) make any public announcement\nwith respect to any acquisition transaction involving the Company or its securities, or submit to the Company a proposal for any acquisition\ntransaction involving the Company or its securities in a manner reasonably likely to require the Company to make a public announcement with\nrespect to such proposal; (iv) form, join or participate in any "group" (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended) in connection with any of the foregoing, or (v) instigate, encourage or assist any third party to do any of the foregoing. For purposes of\nthis letter agreement, "Significant Event" shall mean the entry by the Company into a definitive agreement providing for (x) any acquisition or\npurchase from the Company by any person or "group" (within the meaning of Section 13(d)(3) of the Exchange Act) of 50% or more of the then\noutstanding voting securities of the Company, (y) any merger, tender offer, consolidation, business combination or similar transaction involving\nthe\nCompany pursuant to which the stockholders of the Company immediately\nConfidentiality Agreement\nPage 4\npreceding such transaction hold less than 50% of the outstanding voting securities of the surviving or resulting entity of such transaction and hold\nless than 50% of the outstanding voting securities of any entity that controls such surviving or resulting entity; or (z) any sale, lease or exchange\nof\nall or substantially all of the assets of the Company and its subsidiaries, taken as a whole.\n8. Securities Law Restrictions. Each party represents that it is aware, and agrees that it will advise its Representatives who are informed of the\nmatters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by\nany person who has received material, non-public information from the issuer of such securities and on the communication of such information\nto\nany other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such\ninformation.\n9. Non-Solicitation of Employees. Each Party hereto agrees that, without the prior written consent of the other Party, those of such first Party's\nSpecified Employees (as such term is defined below) who have been directly involved in the evaluation of the Transaction will not, for a period of\ntwelve (12) months from the date hereof, directly solicit for employment with such Party or any of its subsidiaries any Specified Employee of the\nother Party; provided that the foregoing shall not preclude either Party from making any general solicitation for employees (through the engagement\nof\nsearch firms, public advertising or otherwise) not directed at the Specified Employees of the other Party or from hiring any person who responds\nto such a general solicitation. For purposes of this letter agreement, a "Specified Employee" of a Party means any senior executive (Vice President\nlevel or above) who is employed by such Party as of the date hereof or at any time hereafter and with respect to whom a Specified Employee of the\nother Party has learned the identity of such person either as a result of having had access to any Information in connection with the Transaction or\nhas first met such person in connection with the evaluation of the Transaction.\n10. Miscellaneous.\n(a) Injunctive Relief. It is agreed that the Disclosing Party would be irreparably injured by a breach of this Agreement by the Receiving\nParty or any of its Representatives, that monetary remedies would be inadequate to protect the Disclosing Party against any actual or\nthreatened breach of this Agreement by the Receiving Party or any of its Representatives, and, without prejudice to any other rights and\nremedies otherwise available to the Disclosing Party, the Receiving Party, on behalf of itself and its Representatives, agrees to the granting of\nequitable relief, including injunctive relief and specific performance, in favor of the Disclosing Party without proof of actual damages and\nwithout any need to secure or post any bond in connection therewith.\n(b) Severability.. If any provision of this Agreement shall, for any reason, be adjudged by any court of competent jurisdiction to be\ninvalid or unenforceable, such judgment shall not affect, impair or invalidate the remainder of this Agreement but shall be confined in its\noperation to the provision of this Agreement directly involved in the controversy in which such judgment shall have been rendered.\n(c) Successors and Assigns. This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their\nrespective successors and assigns.\nConfidentiality Agreement\nPage 5\n(d) Modifications to Agreement; Waivers. No modifications of or changes to this Agreement or waiver of the terms and conditions hereof\nwill be binding upon the Company or Cisco, unless approved in writing and signed by both the Company and Cisco. It is further agreed that no\nfailure or delay in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n(e) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without\nregard to the principles of conflict of laws thereof. Each party (a) consents to submit itself to the personal jurisdiction of any federal court\nlocated in the State of Delaware or any Delaware state court in the event of any dispute of any kind or nature with respect to or arising out of\nthis Agreement, (b) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from such\ncourt, and (c) agrees that it will not bring any action with respect to or arising out of this Agreement in any court other than a federal court\nsitting in the State of Delaware or a Delaware state court.\n(f) Termination. Each party's obligations hereunder with respect to Information shall terminate on the second anniversary of the date of\nthis Agreement; provided that all matters related thereto in respect of which a claim has been made or an action or proceeding has been\ninstituted on or prior to such date shall survive the expiration of such period until such claim, action or proceeding is finally resolved.\n(g) Entire Agreement. This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the\nsubject matter of this Agreement and supersedes all prior agreements with respect thereto.\n(h) Notices. All notices hereunder shall be in writing and shall be deemed to have been duly given when delivered by messenger or by\novernight courier service (with confirmation of receipt) or by facsimile (upon confirmation of receipt), in each case as follows:\n(1)\nif to the Company:\nWebex Communications, Inc.\nc/o Pillsbury Winthrop Shaw Pittman LLP\n2475 Hanover Street\nPalo Alto, California 94304-1114\nFacsimile: (650) 233-4545\nAttn: Jorge A. del Calvo, Esq.\n(2)\nif to Cisco:\nCisco Systems, Inc.\n170 West Tasman Drive\nSan Jose, California 95134-1706\nFacsimile: (408) 525-4757\nAttn: General Counsel\nConfidentiality Agreement\nPage 6\n(i) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one instrument.\n[The remainder of this page is intentionally left blank.]\nConfidentiality Agreement\nPage 7\nIN WITNESS WHEREOF, the parties hereto have caused this Confidentiality Agreement to be executed and delivered as of the date first\nwritten above.\nWEBEX COMMUNICATIONS, INC.\nBy: /s/ David Farrington\nName: David Farrington\nTitle: Vice President, General Counsel\nCISCO SYSTEMS, INC.\nBy: /s/ Mark T. Gorman\nName: Mark T. Gorman\nTitle: Director, Mergers & Acquisitions EX-99.(E)(10) 8 dex99e10.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(10)\nCONFIDENTIALITY AGREEMENT\nCONFIDENTIALITY AGREEMENT (this “Agreement”), dated as of March 4, 2007, by and between Webex Communications, Inc., a\nDelaware corporation (including its subsidiaries, the “Company”), and Cisco Systems, Inc., a California corporation (including its subsidiaries,\n“Cisco”).\nWHEREAS, Cisco and the Company are engaging in discussions about a possible transaction between them (the “Transaction”) and in\nconnection with evaluating the Transaction, each party (the “Disclosing Party”) may disclose to the other party (the “Receiving Party”) certain\ninformation relating to the Disclosing Party which is non-public, confidential or proprietary in nature;\nNOW, THEREFORE, the parties hereby agree as follows:\n1. Confidentiality of Information. The Receiving Party and its Representatives (as such term is defined below) (i) will keep the Information (as\nsuch term is defined below) strictly confidential and will not (except as required by applicable law or stock exchange requirement, regulation or legal\nprocess, and only after compliance with paragraph 3 below), without the Disclosing Party’s prior written consent, disclose to any person (as such\nterm is defined below) any Information, and (ii) will not use any Information in any manner (whether for itself, any other person or otherwise) other\nthan solely in connection with its consideration of the Transaction. The Receiving Party further agrees to disclose the Information only to its\nRepresentatives who need to know the Information solely for the purpose of evaluating the Transaction, and who are informed by the Receiving\nParty of the confidential nature of the Information and agree to act in accordance with the terms of this Agreement. In addition, the Receiving Party\nand its Representatives shall take all reasonable actions and precautions to prevent the disclosure, use, copying, duplicating or reproducing of any\nInformation, as well as any information the disclosure of which is limited by the provisions of paragraph 2 below in any manner contrary to the\nprovisions of this Agreement. The term “Information” shall mean, with respect to the Disclosing Party in question, all confidential, proprietary or\nnon-public information (whether furnished before or after the date hereof and whether written, oral, electronic or otherwise) furnished by the\nDisclosing Party or its Representatives to the Receiving Party or its Representatives in connection with the Receiving Party’s evaluation of the\nTransaction. The term “Information” will not, however, include information which (i) is or becomes publicly available other than as a result of a\ndisclosure by the Receiving Party or its Representatives in violation of this Agreement, (ii) is or becomes available to the Receiving Party or any of\nits Representatives on a nonconfidential basis from a source (other than the Disclosing Party or any of its Representatives) which, to the Receiving\nParty’s knowledge is not prohibited from disclosing such information to the Receiving Party, (iii) is known to the Receiving Party or any of its\nRepresentatives prior to disclosure by the Disclosing Party or any of its Representatives, or (iv) is or has been independently developed by the\nReceiving Party without use of any information furnished to it by the Disclosing Party. The term “person” shall mean any natural person,\ncorporation, general partnership, limited partnership, limited liability company, proprietorship, other business organization, trust, union or\nassociation or any court, tribunal, arbitrator, authority, agency, commission, official or other instrumentality of any country or any domestic or\nforeign state, county, city or other political subdivision. The terms of confidentiality under this Agreement shall not be construed to limit either\nparty’s right to independently develop or acquire products without use of, or reference to, the other party’s Information. The Disclosing Party\nacknowledges that the Receiving Party may currently or in the future be developing information internally, or receiving information from other\npersons, that is similar to any Information. Accordingly, nothing in this Agreement shall be construed as a representation or agreement that the\nReceiving Party will not develop, or have developed for it, products, concepts, systems, or techniques that are similar to or compete with the\nConfidentiality Agreement\nPage 2\nproducts, concepts, systems or techniques contemplated by or embodied in any Information, provided that the Receiving Party does not violate any\nof its obligations under this Agreement in connection with such development. Further, each party hereto shall be free to use for any purpose any\ninformation in non-tangible form which may be retained in the unaided memories of persons who have had access to Information, including without\nlimitation ideas, concepts, know-how or techniques contained therein resulting from access to or work with any such Information, provided that such\nparty shall maintain the confidentiality of all such Information as provided herein. Neither party hereto shall have any obligation to limit or restrict\nthe assignment of such persons or to pay royalties for any work resulting from the use of any such information. Nothing in this paragraph 1 shall be\ndeemed to grant either party a license under or to any of the other party’s intellectual property rights. The term “Representative” shall mean, with\nrespect to the party in question, any of such party’s directors, officers, employees, affiliates (such term, as defined in the Securities Exchange Act of\n1934, as amended), representatives (including, without limitation, financial advisors, attorneys and accountants) and agents.\n2. Confidentiality of Transaction and Transaction Status. Without the prior written consent of the other party, neither Cisco nor the Company\nnor any of their respective Representatives will (except as set forth in the proviso below or as required by applicable law or stock exchange\nrequirement, regulation or legal process, and only after compliance with paragraph 3 below) disclose to any person any information regarding a\npossible Transaction or any information relating in any way to the Information, including, without limitation (i) that any investigations, discussions\nor negotiations are taking or have taken place concerning a possible Transaction, including the status thereof or the termination of such discussions\nor negotiations, (ii) any of the terms, conditions or other facts with respect to any such possible Transaction or its consideration of a possible\nTransaction, or (iii) that this Agreement exists, that Information exists or has been requested or made available or any opinion or view with respect to\nthe Transaction or the Information; provided, however, that the Company may disclose the existence of this Agreement and provide a copy thereof to\nthe counterparty (and such counterparty’s representatives) to an agreement relating to a Significant Event if such disclosure and provision is required\nby the terms of such agreement.\n3. Mandatory Requests from Governmental Agencies for Information. In the event that the Receiving Party or any of its Representatives are\nrequested or required by any government or governmental agency or authority (by oral questions, interrogatories, requests for information or\ndocuments, subpoena, civil investigative demand, any informal or formal investigation by any government or governmental agency or authority or\notherwise) to disclose any of the Information or any information the disclosure of which is limited by the provisions of paragraph 2 above\n(collectively, the “Compelled Information”), the Receiving Party will notify the Disclosing Party promptly in writing so that the Disclosing Party\nmay seek a protective order or other appropriate remedy or, in the Disclosing Party’s sole discretion, waive compliance with the terms of this\nAgreement. The Receiving Party and its Representatives agree not to oppose any action by the Disclosing Party to obtain a protective order or other\nappropriate remedy and shall cooperate fully with the Disclosing Party in connection therewith. In the event that no such protective order or other\nremedy is obtained, or that the Disclosing Party waives compliance with the terms of this Agreement or, in the absence of such protective order,\nother remedy or the waiver by the Disclosing Party and where the Receiving Party or its Representatives have been advised by counsel that is legally\ncompelled to disclose the Compelled Information, the Receiving Party and its Representatives will furnish only that portion of the Compelled\nInformation which the Receiving Party is advised by counsel is legally required and will exercise its reasonable efforts to obtain reliable assurance\nthat confidential treatment will be accorded such Compelled Information.\nConfidentiality Agreement\nPage 3\n4. Return of Information. At any time at the Disclosing Party’s written request, the Receiving Party and its Representatives agree to return\npromptly all Information to the Disclosing Party, and no copies, extracts or other reproductions of the Information shall be retained by the Receiving\nParty or its Representatives; provided, that any analyses, compilations, forecasts, studies, summaries, notes, data or other documents or materials\nprepared by the Receiving Party or its Representatives, in lieu of being returned to the Disclosing Party, may be destroyed by the Receiving Party\n(except to the extent such destruction is prohibited).\n5. No Obligation to Consummate Transaction. Each party hereto acknowledges and agrees that the other party has made no decision to pursue\nany Transaction and agrees that the other party will have the right in its sole discretion, without giving any reason therefor, at any time to terminate\ndiscussions concerning a possible Transaction or to elect not to pursue any such Transaction. In addition, each party hereto agrees that, except for the\nmatters specifically agreed to herein or in written agreements subsequently entered into between the parties, no contract or agreement providing for\nany Transaction involving the other party or any of its Representatives shall be deemed to exist, and the other party shall not be under any legal\nobligation of any kind whatsoever with respect to any such Transaction by virtue of this or any other written or oral expression with respect to such a\nTransaction by any of its Representatives, unless and until a definitive acquisition agreement or in written agreements subsequently entered into\nbetween the parties, if any, with respect to such Transaction has been executed and delivered by each such party.\n6. No Representations as to the Accuracy of the Information. The Receiving Party and its Representatives acknowledge that neither the\nDisclosing Party nor any of its Representatives makes any express or implied representation or warranty as to the accuracy or completeness of the\nInformation. The Receiving Party and its Representatives agree that they will be entitled to rely solely on such representations and warranties as may\nbe included in definitive agreements (if any) with respect to the Transaction, subject to such limitations and restrictions as may be contained therein.\n7. Standstill. Cisco agrees that, for a period commencing on the date hereof and ending on the earlier of (i) the date that is twelve (12) months\nfollowing the date of this Agreement or (ii) the occurrence of a Significant Event (as such terms is defined below), neither it nor any of its controlled\nsubsidiaries will, without the prior written consent of the Company: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by\npurchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of the Company; (ii) make, or participate in,\ndirectly or indirectly, any “solicitation” of “proxies” (as such terms are defined under the rules of the Securities and Exchange Commission) to vote,\nor seek to advise or influence any person with respect to the voting of, any voting securities of the Company; (iii) make any public announcement\nwith respect to any acquisition transaction involving the Company or its securities, or submit to the Company a proposal for any acquisition\ntransaction involving the Company or its securities in a manner reasonably likely to require the Company to make a public announcement with\nrespect to such proposal; (iv) form, join or participate in any “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended) in connection with any of the foregoing, or (v) instigate, encourage or assist any third party to do any of the foregoing. For purposes of\nthis letter agreement, “Significant Event” shall mean the entry by the Company into a definitive agreement providing for (x) any acquisition or\npurchase from the Company by any person or “group” (within the meaning of Section 13(d)(3) of the Exchange Act) of 50% or more of the then\noutstanding voting securities of the Company, (y) any merger, tender offer, consolidation, business combination or similar transaction involving the\nCompany pursuant to which the stockholders of the Company immediately\nConfidentiality Agreement\nPage 4\npreceding such transaction hold less than 50% of the outstanding voting securities of the surviving or resulting entity of such transaction and hold\nless than 50% of the outstanding voting securities of any entity that controls such surviving or resulting entity; or (z) any sale, lease or exchange of\nall or substantially all of the assets of the Company and its subsidiaries, taken as a whole.\n8. Securities Law Restrictions. Each party represents that it is aware, and agrees that it will advise its Representatives who are informed of the\nmatters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by\nany person who has received material, non-public information from the issuer of such securities and on the communication of such information to\nany other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such\ninformation.\n9. Non-Solicitation of Employees. Each Party hereto agrees that, without the prior written consent of the other Party, those of such first Party’s\nSpecified Employees (as such term is defined below) who have been directly involved in the evaluation of the Transaction will not, for a period of\ntwelve (12) months from the date hereof, directly solicit for employment with such Party or any of its subsidiaries any Specified Employee of the\nother Party; provided that the foregoing shall not preclude either Party from making any general solicitation for employees (through the engagement\nof search firms, public advertising or otherwise) not directed at the Specified Employees of the other Party or from hiring any person who responds\nto such a general solicitation. For purposes of this letter agreement, a “Specified Employee” of a Party means any senior executive (Vice President\nlevel or above) who is employed by such Party as of the date hereof or at any time hereafter and with respect to whom a Specified Employee of the\nother Party has learned the identity of such person either as a result of having had access to any Information in connection with the Transaction or\nhas first met such person in connection with the evaluation of the Transaction.\n10. Miscellaneous.\n(a) Injunctive Relief. It is agreed that the Disclosing Party would be irreparably injured by a breach of this Agreement by the Receiving\nParty or any of its Representatives, that monetary remedies would be inadequate to protect the Disclosing Party against any actual or\nthreatened breach of this Agreement by the Receiving Party or any of its Representatives, and, without prejudice to any other rights and\nremedies otherwise available to the Disclosing Party, the Receiving Party, on behalf of itself and its Representatives, agrees to the granting of\nequitable relief, including injunctive relief and specific performance, in favor of the Disclosing Party without proof of actual damages and\nwithout any need to secure or post any bond in connection therewith.\n(b) Severability. If any provision of this Agreement shall, for any reason, be adjudged by any court of competent jurisdiction to be\ninvalid or unenforceable, such judgment shall not affect, impair or invalidate the remainder of this Agreement but shall be confined in its\noperation to the provision of this Agreement directly involved in the controversy in which such judgment shall have been rendered.\n(c) Successors and Assigns. This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their\nrespective successors and assigns.\nConfidentiality Agreement\nPage 5\n(d) Modifications to Agreement; Waivers. No modifications of or changes to this Agreement or waiver of the terms and conditions hereof\nwill be binding upon the Company or Cisco, unless approved in writing and signed by both the Company and Cisco. It is further agreed that no\nfailure or delay in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n(e) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without\nregard to the principles of conflict of laws thereof. Each party (a) consents to submit itself to the personal jurisdiction of any federal court\nlocated in the State of Delaware or any Delaware state court in the event of any dispute of any kind or nature with respect to or arising out of\nthis Agreement, (b) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from such\ncourt, and (c) agrees that it will not bring any action with respect to or arising out of this Agreement in any court other than a federal court\nsitting in the State of Delaware or a Delaware state court.\n(f) Termination. Each party’s obligations hereunder with respect to Information shall terminate on the second anniversary of the date of\nthis Agreement; provided that all matters related thereto in respect of which a claim has been made or an action or proceeding has been\ninstituted on or prior to such date shall survive the expiration of such period until such claim, action or proceeding is finally resolved.\n(g) Entire Agreement. This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the\nsubject matter of this Agreement and supersedes all prior agreements with respect thereto.\n(h) Notices. All notices hereunder shall be in writing and shall be deemed to have been duly given when delivered by messenger or by\novernight courier service (with confirmation of receipt) or by facsimile (upon confirmation of receipt), in each case as follows:\n(1) if to the Company:\nWebex Communications, Inc.\nc/o Pillsbury Winthrop Shaw Pittman LLP\n2475 Hanover Street\nPalo Alto, California 94304-1114\nFacsimile: (650) 233-4545\nAttn: Jorge A. del Calvo, Esq.\n(2) if to Cisco:\nCisco Systems, Inc.\n170 West Tasman Drive\nSan Jose, California 95134-1706\nFacsimile: (408) 525-4757\nAttn: General Counsel\nConfidentiality Agreement\nPage 6\n(i) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one instrument.\n[The remainder of this page is intentionally left blank.]\nConfidentiality Agreement\nPage 7\nIN WITNESS WHEREOF, the parties hereto have caused this Confidentiality Agreement to be executed and delivered as of the date first\nwritten above.\nWEBEX COMMUNICATIONS, INC.\nBy: /s/ David Farrington\nName: David Farrington\nTitle: Vice President, General Counsel\nCISCO SYSTEMS, INC.\nBy: /s/ Mark T. Gorman\nName: Mark T. Gorman\nTitle: Director, Mergers & Acquisitions ac93a0cef3a3fe11e8b2b5699ca36ceb.pdf effective_date jurisdiction party term EX-10.2 3 ex10_2.htm EXHIBIT 10.2 ACCUREL NON-COMPETE AND NDA\nExhibit 10.2\nNON-COMPETITION AND NONDISCLOSURE AGREEMENT\nThis Non-Competition and Nondisclosure Agreement is entered into as of April 30, 2007 (the “Agreement Date”) among Accurel\nSystems International Corporation, a California corporation (the “Seller”), Implant Sciences Corporation, a Massachusetts corporation (the\n“Guarantor”) and Evans Analytical Group LLC, a Delaware limited liability company (the “Buyer”).\nWITNESSETH:\nWHEREAS, the Buyer, Seller and Guarantor have entered into an Asset Purchase Agreement, dated as of the Agreement Date, pursuant\nto which, among other things, the Buyer is acquiring substantially all of the assets of Seller (the “Purchase Agreement”);\nWHEREAS, in order to protect the value of the business of the Seller being acquired by the Buyer pursuant to the Purchase Agreement\n(the “Purchased Business”), Seller and Guarantor shall not compete with the Buyer and its respective Affiliates (as defined in the Purchase\nAgreement) in accordance with the terms and conditions hereof; and\nWHEREAS, the agreement of Seller and Guarantor not to compete with the Buyer and its Affiliates as provided herein is an integral\npart of the transactions contemplated by the Purchase Agreement, and without such agreements, Buyer would not have entered into the Purchase\nAgreement.\nNOW, THEREFORE, in consideration of the covenants and agreements contained herein, the payment of the purchase price under the\nPurchase Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties\nhereto, intending to be legally bound hereby, agree as follows:\n1. Certain Definitions. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Purchase\nAgreement; provided, however, that the following terms shall have the meanings set forth below irrespective of the meanings such terms may\nhave in the Purchase Agreement:\n(a) "Confidential Information" means all information heretofore developed or used by the Seller or any of its Affiliates relating to the Restricted\nBusiness (as defined below) operations, employees, customers and clients of the Seller, including, but not limited to, customer and client lists,\ncustomer or client orders, financial data, pricing information and price lists, business plans and market strategies and arrangements, all books,\nrecords, manuals, advertising materials, catalogues, correspondence, mailing lists, production data, sales materials and records, purchasing\nmaterials and records, personnel records, quality control records and procedures included in or relating to the Restricted Business or any of the\nassets of the Seller, and all trademarks, copyrights and patents and applications therefor, all trade secrets, inventions, processes, procedures,\nresearch records, market surveys and marketing know-how and other technical papers. The term "Confidential Information" also includes any\nother information heretofore or hereafter acquired by the Seller and deemed by it to be confidential.\n(b) The term "control", with respect to any person, means the power to direct the management and policies of such person, directly or indirectly,\nby or through stock ownership, agency or otherwise, or pursuant to or in connection with an agreement, arrangement or understanding (written or\noral) with one or more other persons by or through stock ownership, agency or otherwise; and the terms "controlling" and "controlled" have\nmeanings correlative to the foregoing.\n(c) The term "person" means an individual, corporation, partnership, joint venture, limited liability company, association, trust, unincorporated\norganization or other entity, including a government or political subdivision or an agency or instrumentality thereof.\n(d) "Restricted Business" means the Business of the Seller, including all services performed by or on behalf of the Seller for its customers.\n(e) "Restricted Period" means the period commencing on the date of this Agreement and ending on the date which is five (5) years from the date\nhereof.\n2. Non-competition. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor\nshall not:\n(a) directly or indirectly engage in, be employed by, own, manage, operate, provide financing to, control or participate in the ownership,\nmanagement or control of, or otherwise have an interest (whether, subject to Section 5, as a stockholder, director, officer, employee,\nrepresentative, subcontractor, partner, consultant, proprietor, agent or otherwise) in, or cause, authorize, aid or assist any other person to own,\nmanage, operate, provide financing to, control or otherwise have an interest in, any business or any person who is engaged in any business that\ndirectly or indirectly competes or intends to compete with the Restricted Business anywhere in the world, unless Seller or Guarantor purchase or\nown less than five percent (5%) of capital stock in a publicly held company; or\n(b) directly, indirectly or otherwise by letters, circulars or advertisements, and whether for itself or on behalf of any other person, canvass or\nsolicit or, directly or indirectly, cause or authorize to be solicited, or enter into or effect, or, directly or indirectly, cause or authorize to be entered\ninto or effected, any business or orders for businesses competing with the Restricted Business from any person who (i) at the time of the\nAgreement or within two years prior to the date of the Agreement, has been, a customer or client, or (ii) is an active prospect to be a customer or\nclient, in each case, of the Seller at the time of the Agreement.\n3. Non-Disclosure of Confidential Information. Seller and Guarantor acknowledge that it is the policy of the Buyer to maintain as secret and\nconfidential all Confidential Information, and the parties hereto recognize that Seller and Guarantor have acquired Confidential Information.\nSeller and Guarantor recognize that all such Confidential Information is and shall remain the sole property of the Buyer, free of any rights of\nSeller or Guarantor, and acknowledges that the Buyer and its Affiliates have a vested interest in assuring that all such Confidential Information\nremains secret and confidential. Therefore, the Seller and Guarantor agree that at all times from after the date hereof, they will not, directly or\nindirectly, without the prior written consent of the Buyer, disclose to any person, firm, company or other entity (other than the Buyer or any of its\nAffiliates) any Confidential Information, except to the extent that (i) any such Confidential Information becomes generally available to the public\nor trade, other than as a result of a breach by the Seller or Guarantor of this Section 3, or (ii) any such Confidential Information becomes\navailable to the Seller or Guarantor on a non-confidential basis from a source other than the Seller, Guarantor, Buyer or any of their Affiliates or\nadvisors; provided, that such source is not known by the Seller or Guarantor to be bound by a confidentiality agreement with, or other obligation\nof secrecy to, the Seller, Guarantor, Buyer or another party. In addition, it shall not be a breach of the confidentiality obligations hereof if the\nSeller or Guarantor is required by law or legal process to disclose any Confidential Information; provided, that in such case, the Seller or\nGuarantor shall (a) give the Buyer prompt notice that such disclosure is or may be required, and (b) cooperate with the Buyer, at the Buyer's\nexpense, in protecting, to the maximum extent legally permitted, the confidential or proprietary nature of the Confidential Information which\nmust be so disclosed. The obligations of the Seller and Guarantor under this Section 3 shall survive any termination of this Agreement.\n4. Non-Solicitation. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor\nshall not, directly, indirectly or otherwise by letters, circulars or advertisements, and whether for themselves or on behalf of any other person:\n(a) solicit or, directly or indirectly, cause to be solicited for employment, any persons who (i) are, at the time of solicitation of employment,\nemployees of the Seller, Buyer or any of their respective Affiliates, or (ii) are, at the time of solicitation of employment, sales representatives or\nemployees thereof, retained by the Buyer or any of its Affiliates; or\n(b) employ or, directly or indirectly, cause to be employed, any persons who (i) are, at the time of such action, employees of the Buyer or any of\nits Affiliates, or (ii) are, at the time of such action, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates;\nprovided, however, that this Section 4 shall not prohibit Seller or Guarantor from employing or soliciting the employment any person who (A) is\nan employee of Seller as of the Agreement Date and (B) is not offered employment by Buyer as of the Agreement Date.\n5. Right to Injunctive Relief. Seller and Guarantor acknowledge that any breach or threatened breach by it of any of the covenants or provisions\ncontained herein will result in irreparable and continuing harm to the Buyer for which the Buyer would not have adequate remedy at law.\nTherefore, Seller and Guarantor acknowledges and agrees that, in addition to any other remedy which the Buyer may have at law or in equity, the\nBuyer shall be entitled to injunctive relief or other equitable remedies in the event of any such breach or threatened breach. Seller and Guarantor\nfurther acknowledges and agrees that monetary damages would be insufficient to compensate the Buyer in the event of a breach by Seller or\nGuarantor of any of the covenants or provisions contained herein, and that in the event of a breach thereof, the Buyer shall be entitled to specific\nperformance of the obligations hereunder.\n6. Enforceability; Severability. If any provision of this Agreement shall be adjudicated to be invalid or unenforceable, then such provision shall\nbe deemed modified, as to duration, territory or otherwise, so as to be enforceable as similar as possible to the provision at issue, in order to\nrender the remainder of this Agreement valid and enforceable. The invalidity or unenforceability of any provision of this Agreement shall not\naffect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were\nomitted.\n7. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of Seller and its successors and assigns, and\nshall be binding and inure to the benefit of the Buyer and its successors and assigns.\n8. Entire Agreement. This Agreement, together with the Purchase Agreement and the Transaction Documents, contains the entire understanding\namong the parties hereto with respect to the subject matter hereof and supersedes all prior negotiations and understandings among the Buyer and\nSeller with respect hereto. This Agreement may not be amended or modified except by a written instrument signed by the parties hereto.\n9. Governing Law; Venue.\n(a) This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of Massachusetts,\nwithout giving effect to principles of conflicts of laws.\n(b) Unless otherwise explicitly provided in this Agreement, any Proceeding relating to this Agreement or the enforcement of any provision of\nthis Agreement may be brought or otherwise commenced in any state or federal court located in the County of Middlesex, Massachusetts. Each\nof Seller, Guarantor and Buyer:\n(i) expressly and irrevocably consents and submits to the jurisdiction of each state and federal court located in the County of Middlesex,\nMassachusetts and each appellate court located in the State of Massachusetts, in connection with any such Proceeding;\n(ii) agrees that each state and federal court located in the County of Santa Clara, California or Massachusetts shall be deemed to be a\nconvenient forum;\n(iii) agrees not to assert, by way of motion, as a defense or otherwise, in any such Proceeding commenced in any state or federal court\nlocated in the County of Santa Clara, California or Massachusetts any claim that such Party is not subject personally to the jurisdiction of such\ncourt, that such Proceeding has been brought in an inconvenient forum, that the venue of such Proceeding is improper or that this Agreement or\nthe subject matter of this Agreement may not be enforced in or by such court; and\n(iv) agrees that service in any action may be made by giving notice in accordance with Section 10.\n10. Notices. Any notice or other communication required or permitted to be delivered to any party shall be in writing and shall be deemed\nproperly delivered, given and received when delivered, by hand, by registered mail, by courier or express delivery service, by facsimile, or by e-\nmail to the address or facsimile number set forth beneath the name of such party below, or to such other address or facsimile number as such\nparty shall have specified in a written notice given to the other parties:\nif to the Seller or the Guarantor:\nImplant Sciences Corporation\n107 Audubon Road, #5\nWakefield, MA 01880-1246\nAttention:\nFacsimile: (781) 246-3561\nEmail:\n@implantsciences.com\nwith a copy to:\nEllenoff Grossman & Schole LLP\n370 Lexington Avenue\nNew York, NY 10017-6503\nAttention: Barry I. Grossman\nFacsimile: (212) 370-7889\nEmail:\nbigrossman@egsllp.com\nif to the Buyer:\nE vans Analytical Group LLC\n810 Kifer Road\nSunnyvale, CA 94086\nAttention: Thomas B. Pfeil\nFacsimile: (408) 530-3899\nE-mail: tpfeil@eaglabs.com\n11. Headings. The headings of sections and subsections of this Agreement are for convenience of reference only and are not to be considered in\nconstruing this Agreement.\n12. Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an\noriginal, but all of which, when taken together, shall constitute one and the same instrument.\nIN WITNESS WHEREOF, the parties hereto have caused this Non-Competition and Nondisclosure Agreement to be executed as of the\nday and year first above written.\nACCUREL SYSTEMS INTERNATIONAL CORPORATION\nBy:\nName:\nTitle:\nEVANS ANALYTICAL GROUP LLC\nBy:\nName:\nTitle:\nIMPLANT SCIENCES CORPORATION\nBy:\nName:\nTitle: EX-10.2 3 ex10_2.htm EXHIBIT 10.2 ACCUREL NON-COMPETE AND NDA\nExhibit 10.2\nNON-COMPETITION AND NONDISCLOSURE AGREEMENT\nThis Non-Competition and Nondisclosure Agreement is entered into as of April 30, 2007 (the “Agreement Date”) among Accurel\nSystems International Corporation, a California corporation (the “Seller”), Implant Sciences Corporation, a Massachusetts corporation (the\n“Guarantor”) and Evans Analytical Group LLC, a Delaware limited liability company (the “Buyer”).\nWITNESSETH:\nWHEREAS, the Buyer, Seller and Guarantor have entered into an Asset Purchase Agreement, dated as of the Agreement Date, pursuant\nto which, among other things, the Buyer is acquiring substantially all of the assets of Seller (the “Purchase Agreement”);\nWHEREAS, in order to protect the value of the business of the Seller being acquired by the Buyer pursuant to the Purchase Agreement\n(the “Purchased Business”), Seller and Guarantor shall not compete with the Buyer and its respective Affiliates (as defined in the Purchase\nAgreement) in accordance with the terms and conditions hereof; and\nWHEREAS, the agreement of Seller and Guarantor not to compete with the Buyer and its Affiliates as provided herein is an integral\npart of the transactions contemplated by the Purchase Agreement, and without such agreements, Buyer would not have entered into the Purchase\nAgreement.\nNOW, THEREFORE, in consideration of the covenants and agreements contained herein, the payment of the purchase price under the\nPurchase Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties\nhereto, intending to be legally bound hereby, agree as follows:\n1. Certain Definitions. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Purchase\nAgreement; provided, however, that the following terms shall have the meanings set forth below irrespective of the meanings such terms may\nhave in the Purchase Agreement:\n(a) "Confidential Information" means all information heretofore developed or used by the Seller or any of its Affiliates relating to the Restricted\nBusiness (as defined below) operations, employees, customers and clients of the Seller, including, but not limited to, customer and client lists,\ncustomer or client orders, financial data, pricing information and price lists, business plans and market strategies and arrangements, all books,\nrecords, manuals, advertising materials, catalogues, correspondence, mailing lists, production data, sales materials and records, purchasing\nmaterials and records, personnel records, quality control records and procedures included in or relating to the Restricted Business or any of the\nassets of the Seller, and all trademarks, copyrights and patents and applications therefor, all trade secrets, inventions, processes, procedures,\nresearch records, market surveys and marketing know-how and other technical papers. The term "Confidential Information" also includes any\nother information heretofore or hereafter acquired by the Seller and deemed by it to be confidential.\n(b) The term "control", with respect to any person, means the power to direct the management and policies of such person, directly or indirectly,\nby or through stock ownership, agency or otherwise, or pursuant to or in connection with an agreement, arrangement or understanding (written or\noral) with one or more other persons by or through stock ownership, agency or otherwise; and the terms "controlling" and "controlled" have\nmeanings correlative to the foregoing.\n(c) The term "person" means an individual, corporation, partnership, joint venture, limited liability company, association, trust, unincorporated\norganization or other entity, including a government or political subdivision or an agency or instrumentality thereof.\n(d) "Restricted Business" means the Business of the Seller, including all services performed by or on behalf of the Seller for its customers.\n(e) "Restricted Period" means the period commencing on the date of this Agreement and ending on the date which is five (5) years from the date\nhereof.\n2. Non-competition. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor\nshall not:\n(a) directly or indirectly engage in, be employed by, own, manage, operate, provide financing to, control or participate in the ownership,\nmanagement or control of, or otherwise have an interest (whether, subject to Section 5, as a stockholder, director, officer, employee,\nrepresentative, subcontractor, partner, consultant, proprietor, agent or otherwise) in, or cause, authorize, aid or assist any other person to own,\nmanage, operate, provide financing to, control or otherwise have an interest in, any business or any person who is engaged in any business that\ndirectly or indirectly competes or intends to compete with the Restricted Business anywhere in the world, unless Seller or Guarantor purchase or\nown less than five percent (5%) of capital stock in a publicly held company; or\n(b) directly, indirectly or otherwise by letters, circulars or advertisements, and whether for itself or on behalf of any other person, canvass or\nsolicit or, directly or indirectly, cause or authorize to be solicited, or enter into or effect, or, directly or indirectly, cause or authorize to be entered\ninto or effected, any business or orders for businesses competing with the Restricted Business from any person who (i) at the time of the\nAgreement or within two years prior to the date of the Agreement, has been, a customer or client, or (ii) is an active prospect to be a customer or\nclient, in each case, of the Seller at the time of the Agreement.\n3. Non-Disclosure of Confidential Information. Seller and Guarantor acknowledge that it is the policy of the Buyer to maintain as secret and\nconfidential all Confidential Information, and the parties hereto recognize that Seller and Guarantor have acquired Confidential Information.\nSeller and Guarantor recognize that all such Confidential Information is and shall remain the sole property of the Buyer, free of any rights of\nSeller or Guarantor, and acknowledges that the Buyer and its Affiliates have a vested interest in assuring that all such Confidential Information\nremains secret and confidential. Therefore, the Seller and Guarantor agree that at all times from after the date hereof, they will not, directly or\nindirectly, without the prior written consent of the Buyer, disclose to any person, firm, company or other entity (other than the Buyer or any of its\nAffiliates) any Confidential Information, except to the extent that (i) any such Confidential Information becomes generally available to the public\nor trade, other than as a result of a breach by the Seller or Guarantor of this Section 3, or (ii) any such Confidential Information becomes\navailable to the Seller or Guarantor on a non-confidential basis from a source other than the Seller, Guarantor, Buyer or any of their Affiliates or\nadvisors; provided, that such source is not known by the Seller or Guarantor to be bound by a confidentiality agreement with, or other obligation\nof secrecy to, the Seller, Guarantor, Buyer or another party. In addition, it shall not be a breach of the confidentiality obligations hereof if the\nSeller or Guarantor is required by law or legal process to disclose any Confidential Information; provided, that in such case, the Seller or\nGuarantor shall (a) give the Buyer prompt notice that such disclosure is or may be required, and (b) cooperate with the Buyer, at the Buyer's\nexpense, in protecting, to the maximum extent legally permitted, the confidential or proprietary nature of the Confidential Information which\nmust be so disclosed. The obligations of the Seller and Guarantor under this Section 3 shall survive any termination of this Agreement.\n4. Non-Solicitation. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor\nshall not, directly, indirectly or otherwise by letters, circulars or advertisements, and whether for themselves or on behalf of any other person:\n(a) solicit or, directly or indirectly, cause to be solicited for employment, any persons who (i) are, at the time of solicitation of employment,\nemployees of the Seller, Buyer or any of their respective Affiliates, or (ii) are, at the time of solicitation of employment, sales representatives or\nemployees thereof, retained by the Buyer or any of its Affiliates; or\n(b) employ or, directly or indirectly, cause to be employed, any persons who (i) are, at the time of such action, employees of the Buyer or any of\nits Affiliates, or (ii) are, at the time of such action, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates;\nprovided, however, that this Section 4 shall not prohibit Seller or Guarantor from employing or soliciting the employment any person who (A) is\nan employee of Seller as of the Agreement Date and (B) is not offered employment by Buyer as of the Agreement Date.\n5. Right to Injunctive Relief. Seller and Guarantor acknowledge that any breach or threatened breach by it of any of the covenants or provisions\ncontained herein will result in irreparable and continuing harm to the Buyer for which the Buyer would not have adequate remedy at law.\nTherefore, Seller and Guarantor acknowledges and agrees that, in addition to any other remedy which the Buyer may have at law or in equity, the\nBuyer shall be entitled to injunctive relief or other equitable remedies in the event of any such breach or threatened breach. Seller and Guarantor\nfurther acknowledges and agrees that monetary damages would be insufficient to compensate the Buyer in the event of a breach by Seller or\nGuarantor of any of the covenants or provisions contained herein, and that in the event of a breach thereof, the Buyer shall be entitled to specific\nperformance of the obligations hereunder.\n6. Enforceability; Severability. If any provision of this Agreement shall be adjudicated to be invalid or unenforceable, then such provision shall\nbe deemed modified, as to duration, territory or otherwise, so as to be enforceable as similar as possible to the provision at issue, in order to\nrender the remainder of this Agreement valid and enforceable. The invalidity or unenforceability of any provision of this Agreement shall not\naffect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were\nomitted.\n7. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of Seller and its successors and assigns, and\nshall be binding and inure to the benefit of the Buyer and its successors and assigns.\n8. Entire Agreement. This Agreement, together with the Purchase Agreement and the Transaction Documents, contains the entire understanding\namong the parties hereto with respect to the subject matter hereof and supersedes all prior negotiations and understandings among the Buyer and\nSeller with respect hereto. This Agreement may not be amended or modified except by a written instrument signed by the parties hereto.\n9. Governing Law; Venue.\n(a) This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of Massachusetts,\nwithout giving effect to principles of conflicts of laws.\n(b) Unless otherwise explicitly provided in this Agreement, any Proceeding relating to this Agreement or the enforcement of any provision of\nthis Agreement may be brought or otherwise commenced in any state or federal court located in the County of Middlesex, Massachusetts. Each\nof Seller, Guarantor and Buyer:\n(i) expressly and irrevocably consents and submits to the jurisdiction of each state and federal court located in the County of Middlesex,\nMassachusetts and each appellate court located in the State of Massachusetts, in connection with any such Proceeding;\n(ii) agrees that each state and federal court located in the County of Santa Clara, California or Massachusetts shall be deemed to be a\nconvenient forum;\n(iii) agrees not to assert, by way of motion, as a defense or otherwise, in any such Proceeding commenced in any state or federal court\nlocated in the County of Santa Clara, California or Massachusetts any claim that such Party is not subject personally to the jurisdiction of such\ncourt, that such Proceeding has been brought in an inconvenient forum, that the venue of such Proceeding is improper or that this Agreement or\nthe subject matter of this Agreement may not be enforced in or by such court; and\n(iv) agrees that service in any action may be made by giving notice in accordance with Section 10.\n10. Notices. Any notice or other communication required or permitted to be delivered to any party shall be in writing and shall be deemed\nproperly delivered, given and received when delivered, by hand, by registered mail, by courier or express delivery service, by facsimile, or by e-\nmail to the address or facsimile number set forth beneath the name of such party below, or to such other address or facsimile number as such\nparty shall have specified in a written notice given to the other parties:\nif to the Seller or the Guarantor:\nImplant Sciences Corporation\n107 Audubon Road, #5\nWakefield, MA 01880-1246\nAttention:\nFacsimile: (781) 246-3561\nEmail: @implantsciences.com\nwith a copy to:\nEllenoff Grossman & Schole LLP\n370 Lexington Avenue\nNew York, NY 10017-6503\nAttention: Barry I. Grossman\nFacsimile: (212) 370-7889\nEmail: bigrossman@egsllp.com\nif to the Buyer:\nE vans Analytical Group LLC\n810 Kifer Road\nSunnyvale, CA 94086\nAttention: Thomas B. Pfeil\nFacsimile: (408) 530-3899\nE-mail: tpfeil@eaglabs.com\n11. Headings. The headings of sections and subsections of this Agreement are for convenience of reference only and are not to be considered in\nconstruing this Agreement.\n12. Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an\noriginal, but all of which, when taken together, shall constitute one and the same instrument.\nIN WITNESS WHEREQF, the parties hereto have caused this Non-Competition and Nondisclosure Agreement to be executed as of the\nday and year first above written.\nACCUREL SYSTEMS INTERNATIONAL CORPORATION EVANS ANALYTICAL GROUP LLC\nBy: By:\nName: Name:\nTitle: Title:\nIMPLANT SCIENCES CORPORATION\nBy:\nName:\nTitle: EX-10.2 ex102.htm EXHIBIT 10.2 ACCUREL NON-COMPETE AND NDA\nExhibit 10.2\nNON-COMPETITION AND NONDISCLOSURE AGREEMENT\nThis Non-Competition and Nondisclosure Agreement is entered into as of April 30, 2007 (the "Agreement Date") among Accurel\nSystems International Corporation, a California corporation (the "Seller"), Implant Sciences Corporation, a Massachusetts corporation (the\n"Guarantor") and Evans Analytical Group LLC, a Delaware limited liability company (the "Buyer").\nWITNESSETH:\nWHEREAS, the Buyer, Seller and Guarantor have entered into an Asset Purchase Agreement, dated as of the Agreement Date, pursuant\nto which, among other things, the Buyer is acquiring substantially all of the assets of Seller (the "Purchase Agreement");\nWHEREAS, in order to protect the value of the business of the Seller being acquired by the Buyer pursuant to the Purchase Agreement\n(the "Purchased Business"), Seller and Guarantor shall not compete with the Buyer and its respective Affiliates (as defined in the Purchase\nAgreement) in accordance with the terms and conditions hereof; and\nWHEREAS, the agreement of Seller and Guarantor not to compete with the Buyer and its Affiliates as provided herein is an integral\npart of the transactions contemplated by the Purchase Agreement, and without such agreements, Buyer would not have entered into the Purchase\nAgreement.\nNOW, THEREFORE, in consideration of the covenants and agreements contained herein, the payment of the purchase price under the\nPurchase Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties\nhereto, intending to be legally bound hereby, agree as follows:\n1. Certain Definitions. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Purchase\nAgreement; provided, however, that the following terms shall have the meanings set forth below irrespective of the meanings such terms may\nhave in the Purchase Agreement:\n(a) "Confidential Information" means all information heretofore developed or used by the Seller or any of its Affiliates relating to the Restricted\nBusiness (as defined below) operations, employees, customers and clients of the Seller, including, but not limited to, customer and client lists,\ncustomer or client orders, financial data, pricing information and price lists, business plans and market strategies and arrangements, all books,\nrecords, manuals, advertising materials, catalogues, correspondence, mailing lists, production data, sales materials and records, purchasing\nmaterials and records, personnel records, quality control records and procedures included in or relating to the Restricted Business or any of the\nassets of the Seller, and all trademarks, copyrights and patents and applications therefor, all trade secrets, inventions, processes, procedures,\nresearch\nrecords,\nmarket\nsurveys\nand\nmarketing\nknow-how\nand\nother\ntechnical\npapers.\nThe\nterm\n"Confidential\nInformation"\nalso\nincludes\nany\nother information heretofore or hereafter acquired by the Seller and deemed by it to be confidential.\n(b)\nThe\nterm\n"control",\nwith\nrespect\nto\nany\nperson,\nmeans\nthe\npower\nto\ndirect\nthe\nmanagement\nand\npolicies\nof\nsuch\nperson,\ndirectly\nor\nindirectly,\nby or through stock ownership, agency or otherwise, or pursuant to or in connection with an agreement, arrangement or understanding (written or\noral) with one or more other persons by or through stock ownership, agency or otherwise; and the terms "controlling" and "controlled" have\nmeanings correlative to the foregoing.\n(c) The term "person" means an individual, corporation, partnership, joint venture, limited liability company, association, trust, unincorporated\norganization or other entity, including a government or political subdivision or an agency or instrumentality thereof.\n(d) "Restricted Business" means the Business of the Seller, including all services performed by or on behalf of the Seller for its customers.\n(e) "Restricted Period" means the period commencing on the date of this Agreement and ending on the date which is five (5) years from the date\nhereof.\n2. Non-competition. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor\nshall not:\n(a) directly or indirectly engage in, be employed by, own, manage, operate, provide financing to, control or participate in the ownership,\nmanagement or control of, or otherwise have an interest (whether, subject to Section 5, as a stockholder, director, officer, employee,\nrepresentative, subcontractor, partner, consultant, proprietor, agent or otherwise) in, or cause, authorize, aid or assist any other person to own,\nmanage,\noperate,\nprovide\nfinancing\nto,\ncontrol\nor\notherwise\nhave\nan\ninterest\nin,\nany\nbusiness\nor\nany\nperson\nwho\nis\nengaged\nin\nany\nbusiness\nthat\ndirectly or indirectly competes or intends to compete with the Restricted Business anywhere in the world, unless Seller or Guarantor purchase or\nown less than five percent (5%) of capital stock in a publicly held company; or\n(b) directly, indirectly or otherwise by letters, circulars or advertisements, and whether for itself or on behalf of any other person, canvass or\nsolicit or, directly or indirectly, cause or authorize to be solicited, or enter into or effect, or, directly or indirectly, cause or authorize to be entered\ninto or effected, any business or orders for businesses competing with the Restricted Business from any person who (i) at the time of\nthe\nAgreement or within two years prior to the date of the Agreement, has been, a customer or client, or (ii) is an active prospect to be a customer or\nclient, in each case, of the Seller at the time of the Agreement.\n3. Non-Disclosure of Confidential Information. Seller and Guarantor acknowledge that it is the policy of the Buyer to maintain as secret and\nconfidential all Confidential Information, and the parties hereto recognize that Seller and Guarantor have acquired Confidential Information.\nSeller and Guarantor recognize that all such Confidential Information is and shall remain the sole property of the Buyer, free of any rights of\nSeller or Guarantor, and acknowledges that the Buyer and its Affiliates have a vested interest in assuring that all such Confidential Information\nremains\nsecret\nand\nconfidential.\nTherefore,\nthe\nSeller\nand\nGuarantor\nagree\nthat\nat\nall\ntimes\nfrom\nafter\nthe\ndate\nhereof,\nthey\nwill\nnot,\ndirectly\nor\nindirectly, without the prior written consent of the Buyer, disclose to any person, firm, company or other entity (other than the Buyer or any of its\nAffiliates) any Confidential Information, except to the extent that (i) any such Confidential Information becomes generally available to the public\nor\ntrade,\nother\nthan\nas\na\nresult\nof\na\nbreach\nby\nthe\nSeller\nor\nGuarantor\nof\nthis\nSection\n3,\nor\n(ii)\nany\nsuch\nConfidential\nInformation\nbecomes\navailable to the Seller or Guarantor on a non-confidential basis from a source other than the Seller, Guarantor, Buyer or any of their Affiliates\nor\nadvisors; provided, that such source is not known by the Seller or Guarantor to be bound by a confidentiality agreement with, or other obligation\nof secrecy to, the Seller, Guarantor, Buyer or another party. In addition, it shall not be a breach of the confidentiality obligations hereof if\nthe\nSeller or Guarantor is required by law or legal process to disclose any Confidential Information; provided, that in such case, the Seller or\nGuarantor shall (a) give the Buyer prompt notice that such disclosure is or may be required, and (b) cooperate with the Buyer, at the Buyer's\nexpense, in protecting, to the maximum extent legally permitted, the confidential or proprietary nature of the Confidential Information which\nmust be so disclosed. The obligations of the Seller and Guarantor under this Section 3 shall survive any termination of this Agreement.\n4. Non-Solicitation. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor\nshall not, directly, indirectly or otherwise by letters, circulars or advertisements, and whether for themselves or on behalf of any other person:\n(a) solicit or, directly or indirectly, cause to be solicited for employment, any persons who (i) are, at the time of solicitation of employment,\nemployees of the Seller, Buyer or any of their respective Affiliates, or (ii) are, at the time of solicitation of employment, sales representatives or\nemployees thereof, retained by the Buyer or any of its Affiliates; or\n(b) employ or, directly or indirectly, cause to be employed, any persons who (i) are, at the time of such action, employees of the Buyer or any of\nits Affiliates, or (ii) are, at the time of such action, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates;\nprovided, however, that this Section 4 shall not prohibit Seller or Guarantor from employing or soliciting the employment any person who (A)\nis\nan employee of Seller as of the Agreement Date and (B) is not offered employment by Buyer as of the Agreement Date.\n5. Right to Injunctive Relief. Seller and Guarantor acknowledge that any breach or threatened breach by it of any of the covenants or provisions\ncontained herein will result in irreparable and continuing harm to the Buyer for which the Buyer would not have adequate remedy at law.\nTherefore, Seller and Guarantor acknowledges and agrees that, in addition to any other remedy which the Buyer may have at law or in equity, the\nBuyer shall be entitled to injunctive relief or other equitable remedies in the event of any such breach or threatened breach. Seller and Guarantor\nfurther acknowledges and agrees that monetary damages would be insufficient to compensate the Buyer in the event of a breach by Seller or\nGuarantor of any of the covenants or provisions contained herein, and that in the event of a breach thereof, the Buyer shall be entitled to specific\nperformance of the obligations hereunder.\n6. Enforceability; Severability. If any provision of this Agreement shall be adjudicated to be invalid or unenforceable, then such provision shall\nbe deemed modified, as to duration, territory or otherwise, so as to be enforceable as similar as possible to the provision at issue, in order to\nrender the remainder of this Agreement valid and enforceable. The invalidity or unenforceability of any provision of this Agreement shall not\naffect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were\nomitted.\n7. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of Seller and its successors and assigns, and\nshall be binding and inure to the benefit of the Buyer and its successors and assigns.\n8. Entire Agreement. This Agreement, together with the Purchase Agreement and the Transaction Documents, contains the entire understanding\namong the parties hereto with respect to the subject matter hereof and supersedes all prior negotiations and understandings among the Buyer and\nSeller with respect hereto. This Agreement may not be amended or modified except by a written instrument signed by the parties hereto.\n9. Governing Law; Venue.\n(a) This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of Massachusetts,\nwithout giving effect to principles of conflicts of laws.\n(b) Unless otherwise explicitly provided in this Agreement, any Proceeding relating to this Agreement or the enforcement of any provision of\nthis Agreement may be brought or otherwise commenced in any state or federal court located in the County of Middlesex, Massachusetts. Each\nof Seller, Guarantor and Buyer:\n(i) expressly and irrevocably consents and submits to the jurisdiction of each state and federal court located in the County of Middlesex,\nMassachusetts and each appellate court located in the State of Massachusetts, in connection with any such Proceeding;\n(ii) agrees that each state and federal court located in the County of Santa Clara, California or Massachusetts shall be deemed to be\na\nconvenient forum;\n(iii) agrees not to assert, by way of motion, as a defense or otherwise, in any such Proceeding commenced in any state or federal court\nlocated in the County of Santa Clara, California or Massachusetts any claim that such Party is not subject personally to the jurisdiction of such\ncourt, that such Proceeding has been brought in an inconvenient forum, that the venue of such Proceeding is improper or that this Agreement or\nthe subject matter of this Agreement may not be enforced in or by such court; and\n(iv) agrees that service in any action may be made by giving notice in accordance with Section 10.\n10. Notices. Any notice or other communication required or permitted to be delivered to any party shall be in writing and shall be deemed\nproperly delivered, given and received when delivered, by hand, by registered mail, by courier or express delivery service, by facsimile, or by e-\nmail to the address or facsimile number set forth beneath the name of such party below, or to such other address or facsimile number as such\nparty shall have specified in a written notice given to the other parties:\nif to the Seller or the Guarantor:\nImplant Sciences Corporation\n107 Audubon Road, #5\nWakefield, MA 01880-1246\nAttention:\nFacsimile: (781) 246-3561\nEmail:\n@implantsciences.com\nwith a copy to:\nEllenoff Grossman & Schole LLP\n370 Lexington Avenue\nNew York, NY 10017-6503\nAttention: Barry I. Grossman\nFacsimile: (212) 370-7889\nEmail: bigrossman@egsllp.com\nif to the Buyer:\nE vans Analytical Group LLC\n810 Kifer Road\nSunnyvale, CA 94086\nAttention: Thomas B. Pfeil\nFacsimile: (408) 530-3899\nE-mail: tpfeil@eaglabs.com\n11. Headings. The headings of sections and subsections of this Agreement are for convenience of reference only and are not to be considered in\nconstruing this Agreement.\n12.\nExecution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an\noriginal, but all of which, when taken together, shall constitute one and the same instrument.\nIN WITNESS WHEREOF, the parties hereto have caused this Non-Competition and Nondisclosure Agreement to be executed as of the\nday and year first above written.\nACCUREL SYSTEMS INTERNATIONAL CORPORATION\nEVANS ANALYTICAL GROUP LLC\nBy:\nBy:\nName:\nName:\nTitle:\nTitle:\nIMPLANT SCIENCES CORPORATION\nBy:\nName:\nTitle: EX-10.2 3 ex10_2.htm EXHIBIT 10.2 ACCUREL NON-COMPETE AND NDA\nExhibit 10.2\nNON-COMPETITION AND NONDISCLOSURE AGREEMENT\nThis Non-Competition and Nondisclosure Agreement is entered into as of April 30, 2007 (the “Agreement Date”) among Accurel\nSystems International Corporation, a California corporation (the “Seller”), Implant Sciences Corporation, a Massachusetts corporation (the\n“Guarantor”) and Evans Analytical Group LLC, a Delaware limited liability company (the “Buyer”).\nWITNESSETH:\nWHEREAS, the Buyer, Seller and Guarantor have entered into an Asset Purchase Agreement, dated as of the Agreement Date, pursuant\nto which, among other things, the Buyer is acquiring substantially all of the assets of Seller (the “Purchase Agreement”);\nWHEREAS, in order to protect the value of the business of the Seller being acquired by the Buyer pursuant to the Purchase Agreement\n(the “Purchased Business”), Seller and Guarantor shall not compete with the Buyer and its respective Affiliates (as defined in the Purchase\nAgreement) in accordance with the terms and conditions hereof; and\nWHEREAS, the agreement of Seller and Guarantor not to compete with the Buyer and its Affiliates as provided herein is an integral\npart of the transactions contemplated by the Purchase Agreement, and without such agreements, Buyer would not have entered into the Purchase\nAgreement.\nNOW, THEREFORE, in consideration of the covenants and agreements contained herein, the payment of the purchase price under the\nPurchase Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties\nhereto, intending to be legally bound hereby, agree as follows:\n1. Certain Definitions. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Purchase\nAgreement; provided, however, that the following terms shall have the meanings set forth below irrespective of the meanings such terms may\nhave in the Purchase Agreement:\n(a) "Confidential Information" means all information heretofore developed or used by the Seller or any of its Affiliates relating to the Restricted\nBusiness (as defined below) operations, employees, customers and clients of the Seller, including, but not limited to, customer and client lists,\ncustomer or client orders, financial data, pricing information and price lists, business plans and market strategies and arrangements, all books,\nrecords, manuals, advertising materials, catalogues, correspondence, mailing lists, production data, sales materials and records, purchasing\nmaterials and records, personnel records, quality control records and procedures included in or relating to the Restricted Business or any of the\nassets of the Seller, and all trademarks, copyrights and patents and applications therefor, all trade secrets, inventions, processes, procedures,\nresearch records, market surveys and marketing know-how and other technical papers. The term "Confidential Information" also includes any\nother information heretofore or hereafter acquired by the Seller and deemed by it to be confidential.\n(b) The term "control", with respect to any person, means the power to direct the management and policies of such person, directly or indirectly,\nby or through stock ownership, agency or otherwise, or pursuant to or in connection with an agreement, arrangement or understanding (written or\noral) with one or more other persons by or through stock ownership, agency or otherwise; and the terms "controlling" and "controlled" have\nmeanings correlative to the foregoing.\n(c) The term "person" means an individual, corporation, partnership, joint venture, limited liability company, association, trust, unincorporated\norganization or other entity, including a government or political subdivision or an agency or instrumentality thereof.\n(d) "Restricted Business" means the Business of the Seller, including all services performed by or on behalf of the Seller for its customers.\n(e) "Restricted Period" means the period commencing on the date of this Agreement and ending on the date which is five (5) years from the date\nhereof.\n2. Non-competition. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor\nshall not:\n(a) directly or indirectly engage in, be employed by, own, manage, operate, provide financing to, control or participate in the ownership,\nmanagement or control of, or otherwise have an interest (whether, subject to Section 5, as a stockholder, director, officer, employee,\nrepresentative, subcontractor, partner, consultant, proprietor, agent or otherwise) in, or cause, authorize, aid or assist any other person to own,\nmanage, operate, provide financing to, control or otherwise have an interest in, any business or any person who is engaged in any business that\ndirectly or indirectly competes or intends to compete with the Restricted Business anywhere in the world, unless Seller or Guarantor purchase or\nown less than five percent (5%) of capital stock in a publicly held company; or\n(b) directly, indirectly or otherwise by letters, circulars or advertisements, and whether for itself or on behalf of any other person, canvass or\nsolicit or, directly or indirectly, cause or authorize to be solicited, or enter into or effect, or, directly or indirectly, cause or authorize to be entered\ninto or effected, any business or orders for businesses competing with the Restricted Business from any person who (i) at the time of the\nAgreement or within two years prior to the date of the Agreement, has been, a customer or client, or (ii) is an active prospect to be a customer or\nclient, in each case, of the Seller at the time of the Agreement.\n3. Non-Disclosure of Confidential Information. Seller and Guarantor acknowledge that it is the policy of the Buyer to maintain as secret and\nconfidential all Confidential Information, and the parties hereto recognize that Seller and Guarantor have acquired Confidential Information.\nSeller and Guarantor recognize that all such Confidential Information is and shall remain the sole property of the Buyer, free of any rights of\nSeller or Guarantor, and acknowledges that the Buyer and its Affiliates have a vested interest in assuring that all such Confidential Information\nremains secret and confidential. Therefore, the Seller and Guarantor agree that at all times from after the date hereof, they will not, directly or\nindirectly, without the prior written consent of the Buyer, disclose to any person, firm, company or other entity (other than the Buyer or any of its\nAffiliates) any Confidential Information, except to the extent that (i) any such Confidential Information becomes generally available to the public\nor trade, other than as a result of a breach by the Seller or Guarantor of this Section 3, or (ii) any such Confidential Information becomes\navailable to the Seller or Guarantor on a non-confidential basis from a source other than the Seller, Guarantor, Buyer or any of their Affiliates or\nadvisors; provided, that such source is not known by the Seller or Guarantor to be bound by a confidentiality agreement with, or other obligation\nof secrecy to, the Seller, Guarantor, Buyer or another party. In addition, it shall not be a breach of the confidentiality obligations hereof if the\nSeller or Guarantor is required by law or legal process to disclose any Confidential Information; provided, that in such case, the Seller or\nGuarantor shall (a) give the Buyer prompt notice that such disclosure is or may be required, and (b) cooperate with the Buyer, at the Buyer's\nexpense, in protecting, to the maximum extent legally permitted, the confidential or proprietary nature of the Confidential Information which\nmust be so disclosed. The obligations of the Seller and Guarantor under this Section 3 shall survive any termination of this Agreement.\n4. Non-Solicitation. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor\nshall not, directly, indirectly or otherwise by letters, circulars or advertisements, and whether for themselves or on behalf of any other person:\n(a) solicit or, directly or indirectly, cause to be solicited for employment, any persons who (i) are, at the time of solicitation of employment,\nemployees of the Seller, Buyer or any of their respective Affiliates, or (ii) are, at the time of solicitation of employment, sales representatives or\nemployees thereof, retained by the Buyer or any of its Affiliates; or\n(b) employ or, directly or indirectly, cause to be employed, any persons who (i) are, at the time of such action, employees of the Buyer or any of\nits Affiliates, or (ii) are, at the time of such action, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates;\nprovided, however, that this Section 4 shall not prohibit Seller or Guarantor from employing or soliciting the employment any person who (A) is\nan employee of Seller as of the Agreement Date and (B) is not offered employment by Buyer as of the Agreement Date.\n5. Right to Injunctive Relief. Seller and Guarantor acknowledge that any breach or threatened breach by it of any of the covenants or provisions\ncontained herein will result in irreparable and continuing harm to the Buyer for which the Buyer would not have adequate remedy at law.\nTherefore, Seller and Guarantor acknowledges and agrees that, in addition to any other remedy which the Buyer may have at law or in equity, the\nBuyer shall be entitled to injunctive relief or other equitable remedies in the event of any such breach or threatened breach. Seller and Guarantor\nfurther acknowledges and agrees that monetary damages would be insufficient to compensate the Buyer in the event of a breach by Seller or\nGuarantor of any of the covenants or provisions contained herein, and that in the event of a breach thereof, the Buyer shall be entitled to specific\nperformance of the obligations hereunder.\n6. Enforceability; Severability. If any provision of this Agreement shall be adjudicated to be invalid or unenforceable, then such provision shall\nbe deemed modified, as to duration, territory or otherwise, so as to be enforceable as similar as possible to the provision at issue, in order to\nrender the remainder of this Agreement valid and enforceable. The invalidity or unenforceability of any provision of this Agreement shall not\naffect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were\nomitted.\n7. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of Seller and its successors and assigns, and\nshall be binding and inure to the benefit of the Buyer and its successors and assigns.\n8. Entire Agreement. This Agreement, together with the Purchase Agreement and the Transaction Documents, contains the entire understanding\namong the parties hereto with respect to the subject matter hereof and supersedes all prior negotiations and understandings among the Buyer and\nSeller with respect hereto. This Agreement may not be amended or modified except by a written instrument signed by the parties hereto.\n9. Governing Law; Venue.\n(a) This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of Massachusetts,\nwithout giving effect to principles of conflicts of laws.\n(b) Unless otherwise explicitly provided in this Agreement, any Proceeding relating to this Agreement or the enforcement of any provision of\nthis Agreement may be brought or otherwise commenced in any state or federal court located in the County of Middlesex, Massachusetts. Each\nof Seller, Guarantor and Buyer:\n(i) expressly and irrevocably consents and submits to the jurisdiction of each state and federal court located in the County of Middlesex,\nMassachusetts and each appellate court located in the State of Massachusetts, in connection with any such Proceeding;\n(ii) agrees that each state and federal court located in the County of Santa Clara, California or Massachusetts shall be deemed to be a\nconvenient forum;\n(iii) agrees not to assert, by way of motion, as a defense or otherwise, in any such Proceeding commenced in any state or federal court\nlocated in the County of Santa Clara, California or Massachusetts any claim that such Party is not subject personally to the jurisdiction of such\ncourt, that such Proceeding has been brought in an inconvenient forum, that the venue of such Proceeding is improper or that this Agreement or\nthe subject matter of this Agreement may not be enforced in or by such court; and\n(iv) agrees that service in any action may be made by giving notice in accordance with Section 10.\n10. Notices. Any notice or other communication required or permitted to be delivered to any party shall be in writing and shall be deemed\nproperly delivered, given and received when delivered, by hand, by registered mail, by courier or express delivery service, by facsimile, or by e-\nmail to the address or facsimile number set forth beneath the name of such party below, or to such other address or facsimile number as such\nparty shall have specified in a written notice given to the other parties:\nif to the Seller or the Guarantor:\nImplant Sciences Corporation\n107 Audubon Road, #5\nWakefield, MA 01880-1246\nAttention:\nFacsimile: (781) 246-3561\nEmail:\n@implantsciences.com\nwith a copy to:\nEllenoff Grossman & Schole LLP\n370 Lexington Avenue\nNew York, NY 10017-6503\nAttention: Barry I. Grossman\nFacsimile: (212) 370-7889\nEmail:\nbigrossman@egsllp.com\nif to the Buyer:\nE vans Analytical Group LLC\n810 Kifer Road\nSunnyvale, CA 94086\nAttention: Thomas B. Pfeil\nFacsimile: (408) 530-3899\nE-mail: tpfeil@eaglabs.com\n11. Headings. The headings of sections and subsections of this Agreement are for convenience of reference only and are not to be considered in\nconstruing this Agreement.\n12. Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an\noriginal, but all of which, when taken together, shall constitute one and the same instrument.\nIN WITNESS WHEREOF, the parties hereto have caused this Non-Competition and Nondisclosure Agreement to be executed as of the\nday and year first above written.\nACCUREL SYSTEMS INTERNATIONAL CORPORATION\nBy:\nName:\nTitle:\nEVANS ANALYTICAL GROUP LLC\nBy:\nName:\nTitle:\nIMPLANT SCIENCES CORPORATION\nBy:\nName:\nTitle: af344c9a1d0fc128bcab1737a6b7d0ec.pdf effective_date jurisdiction party term EX-10.1 2 d244670dex101.htm CONFIDENTIAL SEPARATION AGREEMENT\nExhibit 10.1\nCONFIDENTIAL SEPARATION AGREEMENT\nAND GENERAL RELEASE OF ALL CLAIMS\nThis Confidential Separation Agreement and General Release of All Claims (“Separation Agreement”) is made by and between Life\nTechnologies Corporation, and any affiliates, subsidiaries, and merged (predecessor) entities (collectively the “Company”) and Bernd Brust\n(“Employee”) with respect to the following facts:\nA. Employee has been employed by the Company as a Head of Molecular Medicine.\nB. Employee’s employment will cease effective October 25, 2011 (“Separation Date”). The Company wishes to reach an amicable separation\nwith Employee and assist Employee’s transition to other employment. For the sake of clarity, the termination of Employee’s employment on the\nSeparation Date is not intended to create a termination of Service (as that term is defined in the Life Technologies 2009 Equity Incentive Plan).\nC. Employee and Company entered into an Indemnification Agreement dated March 23, 2005 (“Indemnification Agreement”), which is\nincorporated into this Separation Agreement by reference. The parties intend that the Indemnification Agreement shall remain in full force and\neffect, notwithstanding the terms of this Separation Agreement and the Consultancy Agreement that is attached hereto as Attachment A.\nD. The parties desire to settle all claims and issues that have been, or could have been, raised in relation to Employee’s employment with the\nCompany and arising out of or in any way related to the acts, transactions or occurrences between Employee, on the one hand and the Company on\nthe other hand, to date, including, but not limited to, Employee’s employment with the Company or the termination of that employment, on the terms\nset forth below.\nTHEREFORE, in consideration of the promises and mutual agreements hereinafter set forth, it is agreed by and between the undersigned as\nfollows:\n1. Severance Package. If Employee executes this Separation Agreement, does not revoke it, and returns it to the Company by the deadline\nstated in Paragraph 19, the Company agrees to provide Employee with the following payments and benefits (“Severance Package”). Employee\nacknowledges and agrees that Employee is not otherwise entitled to such Severance Package, and that this Severance Package constitutes adequate\nlegal consideration for the promises and representations made by Employee in this Separation Agreement.\n1.1 . Consultancy. The Company will enter into a consultancy arrangement with Employee for a period up to, and not extending beyond,\nDecember 31, 2011 (“Consultancy Period”), at a rate of $5,000 per month. Employee understands and agrees that Employee must satisfy any\nCompany-required prerequisites to becoming a consultant, including without limitation, executing a consulting agreement with the Company,\nsubstantially similar to the form attached as Attachment A. As a consultant, Employee will be eligible to vest in those equity grants with vesting\ndates that occur during the Consultancy Period. However, Employee understands and agrees that any equity grants that do not vest during the\nConsultancy Period will be forfeited in accordance with the terms of the governing grant agreements and Company plan documents. Employee\nacknowledges and agrees that during the Consultancy Period, Employee’s relationship with the Company will be that of an independent contractor,\nnot an employee of the Company. Employee further understands and agrees that if, at any time during\nBrust, Bernd\nPage1of7\nthe Consultancy Period, Employee decides to perform consulting or other services for, or engage in or intend to engage in an employment\nrelationship with another company, Employee shall notify the Company prior to accepting such service and secure Company’s written approval. The\nCompany reserves the right to terminate the consultancy agreement in accordance with the terms of the consulting agreement, which will result in\nEmployee becoming ineligible to receive any further pay or other benefits associated with the consultancy.\n1.2 . Continuation of Group Health Benefits. The Company agrees to continue through the end of the month in which Employee’s\nSeparation Date occurs, the same medical and dental coverage that was in effect immediately prior to the Separation Date. In addition, the Company\nwill pay for the monthly premiums required to continue Employee’s group health insurance coverage for an additional two (2) months, provided\nEmployee elects to continue such benefits and remains eligible to receive such benefits in accordance with the applicable provisions of the\nConsolidated Omnibus Budget Reconciliation Act of 1985.\n1.3 . Outplacement Services. The Company agrees to provide Employee with outplacement assistance, in an amount and level decided by\nCompany, for nine (9) months. To remain eligible for Outplacement Services, Employee must commence the Outplacement Services within 60 days\nafter the completion of the Consultancy Period, otherwise the benefits will expire. In no event will Employee receive a cash payment or other\nconsideration in lieu of the Outplacement Services.\n2. Accrued and Vested Benefits. The parties agree that Employee shall receive any and all benefits due to Employee upon termination of\nemployment in accordance with Life Technologies’ policies and benefits plans, including, without limitation, accrued but unused vacation pay, if\napplicable, and any vested pension or other vested retirement benefits.\n3. General Release.\n3.1 . Except for the claims identified in the last sentence of this Paragraph 3.1, Employee unconditionally, irrevocably and absolutely\nreleases (i.e., “gives up”) and discharges the Company and any parent and subsidiary corporations, divisions and affiliated corporations, partnerships\nor other affiliated entities of the Company, past and present, including Invitrogen Corporation, Applera Corporation, and Applied Biosystems, Inc.,\nas well as the Company’s employees, officers, directors, agents, shareholders, successors and assigns (collectively, “Released Parties”), from all\nknown and unknown claims that Employee may presently have related in any way to the transactions or occurrences between Employee and any\nReleased Party. This general release includes, but is not limited to, Employee’s employment with the Company, the termination of Employee’s\nemployment, and all other losses, liabilities, claims, charges, demands and causes of action, known or unknown, suspected or unsuspected, arising\ndirectly or indirectly out of or in any way connected with Employee’s employment with the Company. This release is intended to have the broadest\npossible application and includes, but is not limited to, any tort, contract, common law, constitutional or other statutory claims arising under federal,\nstate or local law, including, but not limited to, alleged violations of the Worker Adjustment and Retraining Notification Act, 29 U.S .C. § 2101, et\nseq.; Title VII of the Civil Rights Act of 1964, 42 U.S .C. § 2000e, et seq., as amended; the Equal Pay Act, 29 U.S.C. § 206, as amended; the\nAmericans with Disabilities Act, 42 U.S.C. § 12101, et seq., as amended; the Age Discrimination in Employment Act of 1967, 29 U.S .C. § 621, et\nseq., as amended; the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq., as amended; the California Labor Code and Fair\nEmployment and Housing Act, and the anti-discrimination laws of the state in which Employee was employed; all claims for reprisal or retaliation\nunder federal or state law;\nBrust, Bernd\nPage2of7\nany claims for back pay, front pay, liquidated damages, compensatory or punitive damages, and injunctive relief; and all claims for attorneys’ fees,\ncosts and expenses. However, this general release is not intended to bar or release any claims that, by law or statute, may not be waived, such as\nclaims for workers’ compensation benefits, any challenge to the validity of Employee’s release of claims under the Age Discrimination in\nEmployment Act of 1967, as amended, as set forth in this Separation Agreement and unemployment insurance benefits.\n3.2 . Employee acknowledges that Employee later may discover facts or law different from, or in addition to, the facts or law that\nEmployee knows or believes to be true at the time Employee released the claims described in this Separation Agreement. Employee agrees,\nnonetheless, that this Separation Agreement and the release contained in it shall be and remain effective in all respects notwithstanding such different\nor additional facts or the discovery of them.\n3.3 . Employee declares and represents that Employee intends this Separation Agreement to be complete and not subject to any claim of\nmistake, and that the release herein expresses a full and complete release of all claims, known and unknown, suspected or unsuspected and,\nregardless of the adequacy or inadequacy of the consideration, Employee intends the release herein to be final and complete. Employee executes this\nSeparation Agreement and, where applicable, with the full knowledge that this Separation Agreement’s general release covers all possible claims\n(other than those claims specifically excepted from the release) against the Released Parties, to the fullest extent permitted by law.\n3.4 . Employee expressly waives Employee’s right to recovery of any type, including damages or reinstatement, in any administrative or\ncourt action, whether state or federal, and whether brought by Employee or on Employee’s behalf, related in any way to the matters released herein.\n4. California Civil Code Section 1542 Waiver. Employee intentionally releases claims that Employee does not know he or she might have and\nthat, with hindsight, Employee might regret having released. Employee expressly acknowledges and agrees that all rights under Section 1542 of the\nCalifornia Civil Code are expressly waived. That section provides:\nA GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN\nHIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE\nMATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.\n5. Representation Concerning Filing of Legal Actions. Employee represents that, as of the date Employee signed this Separation Agreement,\nEmployee has not filed any lawsuits, charges, complaints, petitions, claims or other accusatory pleadings against the Company or any Released Party\nin any court or with any governmental agency.\n6. Nondisparagement. Employee agrees that Employee will not make any voluntary statements, written or oral, or cause or encourage others to\nmake any such statements that defame, disparage or in any way criticize the personal and/or business reputations, practices or conduct of the\nCompany or any Released Party.\nBrust, Bernd\nPage3of7\n7. Confidentiality and Return of Company Property.\n7.1 . Confidential Separation Information. Employee agrees that the terms and conditions of this Separation Agreement and any\ndiscussions between Employee and the Company or any Released Party that led to the terms and conditions of this Separation Agreement\n(collectively referred to as the “Confidential Separation Information”) are intended to remain confidential between Employee and the Company\nand/or such Released Party. Employee further agrees that Employee will not disclose the Confidential Separation Information to any other persons,\nexcept that Employee may disclose such information to Employee’s immediate family members and to Employee’s attorney(s) and/or accountant(s),\nif any, to the extent needed for legal advice or income tax reporting purposes. When releasing this information to any such person, Employee shall\nadvise the person receiving the information of its confidential nature and treatment as such. Employee, and anyone to whom the Confidential\nSeparation Information has been disclosed, will not respond to, or in any way participate in or contribute to, any public discussion, notice or other\npublicity concerning the Confidential Separation Information. Without limiting the generality of the foregoing, Employee specifically agrees that\nneither Employee, Employee’s immediate family, Employee’s attorney, nor Employee’s accountant, if any, shall disclose the Confidential Separation\nInformation to any current, former or prospective employee of the Company. Nothing in this section will preclude Employee from disclosing\ninformation required in response to a subpoena duly issued by a court of law or a government agency having jurisdiction or power to compel such\ndisclosure, or from giving full, truthful and cooperative answers in response to a duly issued subpoena.\n7.2 . Confidential or Proprietary Information. Employee also agrees and represents that Employee has not and will not use, misuse,\nremove from the Company’s premises without permission, make unauthorized copies of or disclose any confidential or proprietary information of\nthe Company or any affiliated or related entities, including but not limited to, their trade secrets, copyrighted information, customer lists, any\ninformation encompassed in any research and development reports, work in progress, drawings, software, computer files or models, designs, plans,\nproposals, marketing and sales programs, financial projections, and all concepts or ideas, materials or information related to the business or sales of\nthe Company and any affiliated or related entities. Employee acknowledges signing either: (i) Invitrogen’s Information and Technology Agreement\nand Trade Secrets Policy; (ii) Applied Biosystems Conflict of Interest and Confidentiality Agreement; and/or (iii) Life Technologies’ Information\nand Technology Agreement and Confidential Information and Trade Secrets Agreement (collectively referred to as the “Confidentiality\nAgreements”) and agrees that the terms and conditions of any and all such agreements (including those signed prior to the merger or acquisition of\nany former employer with the Company) are expressly incorporated herein by reference, and survive the termination of Employee’s employment.\nEmployee also understands and agrees that Employee’s obligations under any Insider Trading policy extend beyond Employee’s employment with\nthe Company.\n7.3 . Return of Company Property. Employee understands and agrees that as a condition of receiving the Severance Package described in\nParagraph 1, all Company property must be returned to the Company on or before the Separation Date. By signing this Separation Agreement,\nEmployee represents and warrants that Employee will return to the Company, on or before the Separation Date, all Company property, including but\nnot limited to all confidential and proprietary information, as described in Paragraph 7.2 above, and all materials and documents containing trade\nsecrets and copyrighted materials, including all copies and excerpts of the same.\nBrust, Bernd\nPage4of7\n7.4. Promise Not to Solicit. To prevent Employee from inevitably breaking the promises Employee has just made in Paragraph 7.2 above,\nEmployee further agrees that, for twelve (12) months from the Separation Date (a) as to any customer or supplier of the Company or its affiliates\nwith whom Employee had dealings or about whom Employee acquired proprietary information during Employee’s employment, Employee will not\nsolicit or attempt to solicit the customer or supplier to do business with any person or entity to the detriment of the Company where such solicitation\nuses the confidential or proprietary information of the Company; and (b) Employee will not solicit for employment any person who is, or within the\npreceding six (6) months was, an officer, manager, employee, or consultant of the Company or its affiliates, unless the individual was no longer\nemployed by the Company before Employee’s solicitation.\n8. Cooperation. Employee agrees that Employee will fully cooperate with Company in connection with any claims, lawsuits, or proceedings\nthat relate in any manner to Employee’s conduct or duties at Company or that are based on facts about which Employee obtained personal\nknowledge while employed at Company. Any reasonable out-of-pocket expenses incurred by Employee associated with such cooperation will be\npaid for or reimbursed by the Company.\n9. Enforcement. If Employee breaches any of the terms in Paragraphs 6 or 7 above or their subparts, the Company will immediately cease\nproviding the Severance Package described in Paragraph 1 above, to the extent those payments and benefits have not yet been provided, to the fullest\nextent permitted by law. This shall in no way limit the Company’s right to pursue all legal and equitable remedies available to it as a result of\nEmployee’s breach of the Separation Agreement, to the fullest extent permitted by law.\n10. No Admissions. By entering into this Separation Agreement, the Company and any Released Party make no admission that they have\nengaged, or are now engaging, in any wrongdoing. The parties understand and acknowledge that this Separation Agreement is not an admission of\nliability and shall not be used or construed as such in any legal or administrative proceeding.\n11. No Other Severance Benefits. Employee acknowledges and agrees that the Severance Package provided pursuant to this Agreement is in\nlieu of any other severance benefits to which Employee may be eligible under any other agreement and/or severance plan or practice (including but\nnot limited to the Life Technologies Corporation Executive Officer Severance Plan) and Employee waives any and all rights to such other severance\nbenefits.\n12. Representation and Promise. Employee has not suffered any job-related wrongs or injuries, such as any type of discrimination, for which\nEmployee might still be entitled to compensation or relief in the future. Employee has properly reported any and all job-related wrongs or injuries for\nwhich Employee might still be entitled to compensation or relief, such as an injury for which Employee might receive a workers’ compensation\naward in the future. Employee has properly reported all hours that Employee has worked and Employee has been paid all wages, overtime,\ncommissions, compensation, benefits, and other amounts that the Company or any Released Party should have paid Employee in the past.\n13. Severability. In the event any provision of this Separation Agreement shall be found unenforceable by an arbitrator or a court of competent\njurisdiction, the provision shall be deemed modified to the extent necessary to allow enforceability of the provision as so limited, it being intended\nthat the parties shall receive the benefits contemplated herein to the fullest\nBrust, Bernd\nPage5of7\nextent permitted by law. If a deemed modification is not satisfactory in the judgment of such arbitrator or court, the unenforceable provision shall be\ndeemed deleted, and the validity and enforceability of the remaining provisions shall not be affected thereby.\n14. Applicable Law. The validity, interpretation and performance of this Separation Agreement shall be construed and interpreted according to\nthe laws of the United States of America and the state of California.\n15. Binding on Successors. The parties agree that this Separation Agreement shall be binding on, and inure to the benefit of, Employee’s and\nthe Company’s successors, heirs and/or assigns.\n16. Full Defense. This Separation Agreement may be pled as a full and complete defense to, and may be used as a basis for an injunction\nagainst, any action, suit or other proceeding that may be prosecuted, instituted or attempted by Employee in breach hereof.\n17. Good Faith. The parties agree to do all things necessary and to execute all further documents necessary and appropriate to carry out and\neffectuate the terms and purposes of this Separation Agreement.\n18. Entire Agreement/Modification. This Separation Agreement and its attachment(s), including the Indemnification Agreement and the\nsurviving provisions of the Confidentiality Agreements referenced in Paragraph 7.2 above, is intended to be the entire agreement between the parties\nrelating to the termination of Employee’s employment and any claims or future rights that Employee may have with respect to the Company and any\nReleased Party. As such, this Separation Agreement and the incorporated Confidentiality Agreements supersede and cancel any and all other and\nprior agreements, written or oral, and represent the entirety of the agreements between Employee and the Company or its affiliates, including any\npredecessor or merged entities, regarding this subject matter. It is agreed that there are no collateral agreements or representations, written or oral,\nregarding the terms and conditions of Employee’s separation of employment with the Company and settlement of all claims between the parties\nother than those set forth in this Separation Agreement, the Indemnification Agreement, and the surviving provisions of the Confidentiality\nAgreements. This Separation Agreement may be amended only by a written instrument executed by all parties hereto.\n19. The Older Workers’ Benefit Protection Act. This Separation Agreement is intended to satisfy the requirements of the Older Workers’\nBenefit Protection Act, 29 U.S.C. § 626(f) (“OWBPA”). Employee is advised to consult with an attorney before executing this Separation\nAgreement.\n19.1. Acknowledgments/Time to Consider. Employee acknowledges and agrees that (a) Employee has read and understands the terms of\nthis Separation Agreement; (b) this Separation Agreement advises Employee in writing to consult with an attorney before executing this Separation\nAgreement; (c) Employee has obtained and considered such legal counsel as Employee deems necessary; (d) Employee has been given at least\ntwenty-one (21) days to consider whether or not to enter into this Separation Agreement (although Employee may elect not to use the full\nconsideration period at Employee’s option); (e) and that by signing this Separation Agreement, Employee acknowledges that Employee does so\nfreely, knowingly, and voluntarily. Employee agrees that any changes made to this Separation Agreement, whether material or not material, made\nprior to Employee’s signing this Separation Agreement will not restart the time period to review and consider it. If Employee elects to sign this\nBrust, Bernd\nPage6of7\nSeparation Agreement, Employee must return it no later than the close of business on the twenty-first (21st) day after receiving this agreement to the\nCompany at the following address: Lara de Leon, Life Technologies Corporation, 5791 Van Allen Way, Carlsbad, CA 92008.\n19.2. Revocation/Effective Date. Employee may revoke his or her acceptance of this Separation Agreement at any time during the seven\n(7) days after signing it. To be effective, Employee’s revocation must be made in writing and returned to the Company at the address provided in the\nabove Paragraph 19.1, by the close of business on the seventh day after it was signed. If Employee does not revoke his or her acceptance in this\nmanner within the seven (7) day period after signing the Separation Agreement, then Employee’s acceptance of this Separation Agreement shall\nbecome binding and enforceable on the eighth day after Employee signs this Separation Agreement (“Effective Date”). The Severance Package shall\nbecome due and payable in accordance with the terms and conditions described in Paragraph 1 above and its subparts.\n19.3. Preserved Rights of Employee. This Separation Agreement does not waive or release any rights or claims that Employee may have\nunder the Age Discrimination in Employment Act that arise after the execution of this Separation Agreement. In addition, this Separation Agreement\ndoes not prohibit Employee from challenging the validity of this Agreement’s waiver and release of claims under the Age Discrimination in\nEmployment Act of 1967, as amended.\nDated: October 24, 2011\nBy: /s/ Bernd Brust\nBernd Brust (“Employee”)\nON BEHALF OF\nLIFE TECHNOLOGIES CORPORATION\nDated: October 24, 2011\nBy: /s/ Pete Leddy\nIts: SVP, Human Resources\nBrust, Bernd\nPage7of7 EX-10.1 2 d244670dex101.htm CONFIDENTIAL SEPARATION AGREEMENT\nExhibit 10.1\nCONFIDENTIAL SEPARATION AGREEMENT\nAND GENERAL RELEASE OF ALL CLAIMS\nThis Confidential Separation Agreement and General Release of All Claims (“Separation Agreement”) is made by and between Life\nTechnologies Corporation, and any affiliates, subsidiaries, and merged (predecessor) entities (collectively the “Company”) and Bernd Brust\n(“Employee”) with respect to the following facts:\nA. Employee has been employed by the Company as a Head of Molecular Medicine.\nB. Employee’s employment will cease effective October 25, 2011 (“Separation Date”). The Company wishes to reach an amicable separation\nwith Employee and assist Employee’s transition to other employment. For the sake of clarity, the termination of Employee’s employment on the\nSeparation Date is not intended to create a termination of Service (as that term is defined in the Life Technologies 2009 Equity Incentive Plan).\nC. Employee and Company entered into an Indemnification Agreement dated March 23, 2005 (“Indemnification Agreement”), which is\nincorporated into this Separation Agreement by reference. The parties intend that the Indemnification Agreement shall remain in full force and\neffect, notwithstanding the terms of this Separation Agreement and the Consultancy Agreement that is attached hereto as Attachment A.\nD. The parties desire to settle all claims and issues that have been, or could have been, raised in relation to Employee’s employment with the\nCompany and arising out of or in any way related to the acts, transactions or occurrences between Employee, on the one hand and the Company on\nthe other hand, to date, including, but not limited to, Employee’s employment with the Company or the termination of that employment, on the terms\nset forth below.\nTHEREFORE, in consideration of the promises and mutual agreements hereinafter set forth, it is agreed by and between the undersigned as\nfollows:\n1. Severance Package. If Employee executes this Separation Agreement, does not revoke it, and returns it to the Company by the deadline\nstated in Paragraph 19, the Company agrees to provide Employee with the following payments and benefits (“Severance Package”). Employee\nacknowledges and agrees that Employee is not otherwise entitled to such Severance Package, and that this Severance Package constitutes adequate\nlegal consideration for the promises and representations made by Employee in this Separation Agreement.\n1.1. Consultancy. The Company will enter into a consultancy arrangement with Employee for a period up to, and not extending beyond,\nDecember 31, 2011 (“Consultancy Period”), at a rate of $5,000 per month. Employee understands and agrees that Employee must satisfy any\nCompany-required prerequisites to becoming a consultant, including without limitation, executing a consulting agreement with the Company,\nsubstantially similar to the form attached as Attachment A. As a consultant, Employee will be eligible to vest in those equity grants with vesting\ndates that occur during the Consultancy Period. However, Employee understands and agrees that any equity grants that do not vest during the\nConsultancy Period will be forfeited in accordance with the terms of the governing grant agreements and Company plan documents. Employee\nacknowledges and agrees that during the Consultancy Period, Employee’s relationship with the Company will be that of an independent contractor,\nnot an employee of the Company. Employee further understands and agrees that if, at any time during\nBrust, Bernd Page 1 of 7\nthe Consultancy Period, Employee decides to perform consulting or other services for, or engage in or intend to engage in an employment\nrelationship with another company, Employee shall notify the Company prior to accepting such service and secure Company’s written approval. The\nCompany reserves the right to terminate the consultancy agreement in accordance with the terms of the consulting agreement, which will result in\nEmployee becoming ineligible to receive any further pay or other benefits associated with the consultancy.\n1.2. Continuation of Group Health Benefits. The Company agrees to continue through the end of the month in which Employee’s\nSeparation Date occurs, the same medical and dental coverage that was in effect immediately prior to the Separation Date. In addition, the Company\nwill pay for the monthly premiums required to continue Employee’s group health insurance coverage for an additional two (2) months, provided\nEmployee elects to continue such benefits and remains eligible to receive such benefits in accordance with the applicable provisions of the\nConsolidated Omnibus Budget Reconciliation Act of 1985.\n1.3. Outplacement Services. The Company agrees to provide Employee with outplacement assistance, in an amount and level decided by\nCompany, for nine (9) months. To remain eligible for Outplacement Services, Employee must commence the Outplacement Services within 60 days\nafter the completion of the Consultancy Period, otherwise the benefits will expire. In no event will Employee receive a cash payment or other\nconsideration in lieu of the Outplacement Services.\n2. Accrued and Vested Benefits. The parties agree that Employee shall receive any and all benefits due to Employee upon termination of\nemployment in accordance with Life Technologies’ policies and benefits plans, including, without limitation, accrued but unused vacation pay;, if\napplicable, and any vested pension or other vested retirement benefits.\n3. General Release.\n3.1. Except for the claims identified in the last sentence of this Paragraph 3.1, Employee unconditionally, irrevocably and absolutely\nreleases (i.e., “gives up”) and discharges the Company and any parent and subsidiary corporations, divisions and affiliated corporations, partnerships\nor other affiliated entities of the Company, past and present, including Invitrogen Corporation, Applera Corporation, and Applied Biosystems, Inc.,\nas well as the Company’s employees, officers, directors, agents, shareholders, successors and assigns (collectively, “Released Parties”), from all\nknown and unknown claims that Employee may presently have related in any way to the transactions or occurrences between Employee and any\nReleased Party. This general release includes, but is not limited to, Employee’s employment with the Company, the termination of Employee’s\nemployment, and all other losses, liabilities, claims, charges, demands and causes of action, known or unknown, suspected or unsuspected, arising\ndirectly or indirectly out of or in any way connected with Employee’s employment with the Company. This release is intended to have the broadest\npossible application and includes, but is not limited to, any tort, contract, common law, constitutional or other statutory claims arising under federal,\nstate or local law, including, but not limited to, alleged violations of the Worker Adjustment and Retraining Notification Act, 29 U.S.C. § 2101, et\nseq.; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended; the Equal Pay Act, 29 U.S.C. § 206, as amended; the\nAmericans with Disabilities Act, 42 U.S.C. § 12101, et seq., as amended; the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et\nseq., as amended; the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq., as amended; the California Labor Code and Fair\nEmployment and Housing Act, and the anti-discrimination laws of the state in which Employee was employed; all claims for reprisal or retaliation\nunder federal or state law;\nBrust, Bernd Page 2 of 7\nany claims for back pay, front pay, liquidated damages, compensatory or punitive damages, and injunctive relief; and all claims for attorneys’ fees,\ncosts and expenses. However, this general release is not intended to bar or release any claims that, by law or statute, may not be waived, such as\nclaims for workers’ compensation benefits, any challenge to the validity of Employee’s release of claims under the Age Discrimination in\nEmployment Act of 1967, as amended, as set forth in this Separation Agreement and unemployment insurance benefits.\n3.2. Employee acknowledges that Employee later may discover facts or law different from, or in addition to, the facts or law that\nEmployee knows or believes to be true at the time Employee released the claims described in this Separation Agreement. Employee agrees,\nnonetheless, that this Separation Agreement and the release contained in it shall be and remain effective in all respects notwithstanding such different\nor additional facts or the discovery of them.\n3.3. Employee declares and represents that Employee intends this Separation Agreement to be complete and not subject to any claim of\nmistake, and that the release herein expresses a full and complete release of all claims, known and unknown, suspected or unsuspected and,\nregardless of the adequacy or inadequacy of the consideration, Employee intends the release herein to be final and complete. Employee executes this\nSeparation Agreement and, where applicable, with the full knowledge that this Separation Agreement’s general release covers all possible claims\n(other than those claims specifically excepted from the release) against the Released Parties, to the fullest extent permitted by law.\n3.4. Employee expressly waives Employee’s right to recovery of any type, including damages or reinstatement, in any administrative or\ncourt action, whether state or federal, and whether brought by Employee or on Employee’s behalf, related in any way to the matters released herein.\n4. California Civil Code Section 1542 Waiver. Employee intentionally releases claims that Employee does not know he or she might have and\nthat, with hindsight, Employee might regret having released. Employee expressly acknowledges and agrees that all rights under Section 1542 of the\nCalifornia Civil Code are expressly waived. That section provides:\nA GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN\nHIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE\nMATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.\n5. Representation Concerning Filing of L.egal Actions. Employee represents that, as of the date Employee signed this Separation Agreement,\nEmployee has not filed any lawsuits, charges, complaints, petitions, claims or other accusatory pleadings against the Company or any Released Party\nin any court or with any governmental agency.\n6. Nondisparagement. Employee agrees that Employee will not make any voluntary statements, written or oral, or cause or encourage others to\nmake any such statements that defame, disparage or in any way criticize the personal and/or business reputations, practices or conduct of the\nCompany or any Released Party.\nBrust, Bernd Page 3 of 7\n7.1. Confidential Separation Information. Employee agrees that the terms and conditions of this Separation Agreement and any\ndiscussions between Employee and the Company or any Released Party that led to the terms and conditions of this Separation Agreement\n(collectively referred to as the “Confidential Separation Information™) are intended to remain confidential between Employee and the Company\nand/or such Released Party. Employee further agrees that Employee will not disclose the Confidential Separation Information to any other persons,\nexcept that Employee may disclose such information to Employee’s immediate family members and to Employee’s attorney(s) and/or accountant(s),\nif any, to the extent needed for legal advice or income tax reporting purposes. When releasing this information to any such person, Employee shall\nadvise the person receiving the information of its confidential nature and treatment as such. Employee, and anyone to whom the Confidential\nSeparation Information has been disclosed, will not respond to, or in any way participate in or contribute to, any public discussion, notice or other\npublicity concerning the Confidential Separation Information. Without limiting the generality of the foregoing, Employee specifically agrees that\nneither Employee, Employee’s immediate family, Employee’s attorney, nor Employee’s accountant, if any, shall disclose the Confidential Separation\nInformation to any current, former or prospective employee of the Company. Nothing in this section will preclude Employee from disclosing\ninformation required in response to a subpoena duly issued by a court of law or a government agency having jurisdiction or power to compel such\ndisclosure, or from giving full, truthful and cooperative answers in response to a duly issued subpoena.\n7.2. Confidential or Proprietary Information. Employee also agrees and represents that Employee has not and will not use, misuse,\nremove from the Company’s premises without permission, make unauthorized copies of or disclose any confidential or proprietary information of\nthe Company or any affiliated or related entities, including but not limited to, their trade secrets, copyrighted information, customer lists, any\ninformation encompassed in any research and development reports, work in progress, drawings, software, computer files or models, designs, plans,\nproposals, marketing and sales programs, financial projections, and all concepts or ideas, materials or information related to the business or sales of\nthe Company and any affiliated or related entities. Employee acknowledges signing either: (i) Invitrogen’s Information and Technology Agreement\nand Trade Secrets Policy; (ii) Applied Biosystems Conflict of Interest and Confidentiality Agreement; and/or (iii) Life Technologies’ Information\nand Technology Agreement and Confidential Information and Trade Secrets Agreement (collectively referred to as the “Confidentiality\nAgreements™”) and agrees that the terms and conditions of any and all such agreements (including those signed prior to the merger or acquisition of\nany former employer with the Company) are expressly incorporated herein by reference, and survive the termination of Employee’s employment.\nEmployee also understands and agrees that Employee’s obligations under any Insider Trading policy extend beyond Employee’s employment with\nthe Company.\nParagraph 1, all Company property must be returned to the Company on or before the Separation Date. By signing this Separation Agreement,\nEmployee represents and warrants that Employee will return to the Company, on or before the Separation Date, all Company property, including but\nnot limited to all confidential and proprietary information, as described in Paragraph 7.2 above, and all materials and documents containing trade\nsecrets and copyrighted materials, including all copies and excerpts of the same.\nBrust, Bernd Page 4 of 7\n7.4. Promise Not to Solicit. To prevent Employee from inevitably breaking the promises Employee has just made in Paragraph 7.2 above,\nEmployee further agrees that, for twelve (12) months from the Separation Date (a) as to any customer or supplier of the Company or its affiliates\nwith whom Employee had dealings or about whom Employee acquired proprietary information during Employee’s employment, Employee will not\nsolicit or attempt to solicit the customer or supplier to do business with any person or entity to the detriment of the Company where such solicitation\nuses the confidential or proprietary information of the Company; and (b) Employee will not solicit for employment any person who is, or within the\npreceding six (6) months was, an officer, manager, employee, or consultant of the Company or its affiliates, unless the individual was no longer\nemployed by the Company before Employee’s solicitation.\n8. Cooperation. Employee agrees that Employee will fully cooperate with Company in connection with any claims, lawsuits, or proceedings\nthat relate in any manner to Employee’s conduct or duties at Company or that are based on facts about which Employee obtained personal\nknowledge while employed at Company. Any reasonable out-of-pocket expenses incurred by Employee associated with such cooperation will be\npaid for or reimbursed by the Company.\n \n9. Enforcement. If Employee breaches any of the terms in Paragraphs 6 or 7 above or their subparts, the Company will immediately cease\nproviding the Severance Package described in Paragraph 1 above, to the extent those payments and benefits have not yet been provided, to the fullest\nextent permitted by law. This shall in no way limit the Company’s right to pursue all legal and equitable remedies available to it as a result of\nEmployee’s breach of the Separation Agreement, to the fullest extent permitted by law.\n10. No Admissions. By entering into this Separation Agreement, the Company and any Released Party make no admission that they have\nengaged, or are now engaging, in any wrongdoing. The parties understand and acknowledge that this Separation Agreement is not an admission of\nliability and shall not be used or construed as such in any legal or administrative proceeding.\n11. No Other Severance Benefits. Employee acknowledges and agrees that the Severance Package provided pursuant to this Agreement is in\nlieu of any other severance benefits to which Employee may be eligible under any other agreement and/or severance plan or practice (including but\nnot limited to the Life Technologies Corporation Executive Officer Severance Plan) and Employee waives any and all rights to such other severance\nbenefits.\n12. Representation and Promise. Employee has not suffered any job-related wrongs or injuries, such as any type of discrimination, for which\nEmployee might still be entitled to compensation or relief in the future. Employee has properly reported any and all job-related wrongs or injuries for\nwhich Employee might still be entitled to compensation or relief, such as an injury for which Employee might receive a workers’ compensation\naward in the future. Employee has properly reported all hours that Employee has worked and Employee has been paid all wages, overtime,\ncommissions, compensation, benefits, and other amounts that the Company or any Released Party should have paid Employee in the past.\n13. Severability. In the event any provision of this Separation Agreement shall be found unenforceable by an arbitrator or a court of competent\njurisdiction, the provision shall be deemed modified to the extent necessary to allow enforceability of the provision as so limited, it being intended\nthat the parties shall receive the benefits contemplated herein to the fullest\nBrust, Bernd Page 5 of 7\nextent permitted by law. If a deemed modification is not satisfactory in the judgment of such arbitrator or court, the unenforceable provision shall be\ndeemed deleted, and the validity and enforceability of the remaining provisions shall not be affected thereby.\n14. Applicable Law. The validity, interpretation and performance of this Separation Agreement shall be construed and interpreted according to\nthe laws of the United States of America and the state of California.\n15. Binding on Successors. The parties agree that this Separation Agreement shall be binding on, and inure to the benefit of, Employee’s and\nthe Company’s successors, heirs and/or assigns.\n16. Full Defense. This Separation Agreement may be pled as a full and complete defense to, and may be used as a basis for an injunction\nagainst, any action, suit or other proceeding that may be prosecuted, instituted or attempted by Employee in breach hereof.\n17. Good Faith. The parties agree to do all things necessary and to execute all further documents necessary and appropriate to carry out and\neffectuate the terms and purposes of this Separation Agreement.\n18. Entire Agreement/Modification. This Separation Agreement and its attachment(s), including the Indemnification Agreement and the\nsurviving provisions of the Confidentiality Agreements referenced in Paragraph 7.2 above, is intended to be the entire agreement between the parties\nrelating to the termination of Employee’s employment and any claims or future rights that Employee may have with respect to the Company and any\nReleased Party. As such, this Separation Agreement and the incorporated Confidentiality Agreements supersede and cancel any and all other and\nprior agreements, written or oral, and represent the entirety of the agreements between Employee and the Company or its affiliates, including any\npredecessor or merged entities, regarding this subject matter. It is agreed that there are no collateral agreements or representations, written or oral,\nregarding the terms and conditions of Employee’s separation of employment with the Company and settlement of all claims between the parties\nother than those set forth in this Separation Agreement, the Indemnification Agreement, and the surviving provisions of the Confidentiality\nAgreements. This Separation Agreement may be amended only by a written instrument executed by all parties hereto.\n19. The Older Workers’ Benefit Protection Act. This Separation Agreement is intended to satisfy the requirements of the Older Workers’\nBenefit Protection Act, 29 U.S.C. § 626(f) (“OWBPA”). Employee is advised to consult with an attorney before executing this Separation\nAgreement.\n19.1. Acknowledgments/Time to Consider. Employee acknowledges and agrees that (a) Employee has read and understands the terms of\nthis Separation Agreement; (b) this Separation Agreement advises Employee in writing to consult with an attorney before executing this Separation\nAgreement; (c) Employee has obtained and considered such legal counsel as Employee deems necessary; (d) Employee has been given at least\ntwenty-one (21) days to consider whether or not to enter into this Separation Agreement (although Employee may elect not to use the full\nconsideration period at Employee’s option); (e) and that by signing this Separation Agreement, Employee acknowledges that Employee does so\nfreely, knowingly, and voluntarily. Employee agrees that any changes made to this Separation Agreement, whether material or not material, made\nprior to Employee’s signing this Separation Agreement will not restart the time period to review and consider it. If Employee elects to sign this\nBrust, Bernd Page 6 of 7\nSeparation Agreement, Employee must return it no later than the close of business on the twenty-first (21st) day after receiving this agreement to the\nCompany at the following address: Lara de Leon, Life Technologies Corporation, 5791 Van Allen Way, Carlsbad, CA 92008.\n19.2. Revocation/Effective Date. Employee may revoke his or her acceptance of this Separation Agreement at any time during the seven\n(7) days after signing it. To be effective, Employee’s revocation must be made in writing and returned to the Company at the address provided in the\nabove Paragraph 19.1, by the close of business on the seventh day after it was signed. If Employee does not revoke his or her acceptance in this\nmanner within the seven (7) day period after signing the Separation Agreement, then Employee’s acceptance of this Separation Agreement shall\nbecome binding and enforceable on the eighth day after Employee signs this Separation Agreement (“Effective Date”). The Severance Package shall\nbecome due and payable in accordance with the terms and conditions described in Paragraph 1 above and its subparts.\n19.3. Preserved Rights of Employee. This Separation Agreement does not waive or release any rights or claims that Employee may have\nunder the Age Discrimination in Employment Act that arise after the execution of this Separation Agreement. In addition, this Separation Agreement\ndoes not prohibit Employee from challenging the validity of this Agreement’s waiver and release of claims under the Age Discrimination in\nEmployment Act of 1967, as amended.\nDated: October 24, 2011 By: /s/ Bernd Brust\nBernd Brust (“Employee”)\nON BEHALF OF\nLIFE TECHNOLOGIES CORPORATION\nDated: October 24, 2011 By: /s/ Pete Leddy\nIts: SVP, Human Resources\nBrust, Bernd Page 7 of 7 EX-10.1 2 d244670dex101.htm CONFIDENTIAL SEPARATION AGREEMENT\nExhibit 10.1\nCONFIDENTIAL SEPARATION AGREEMENT\nAND GENERAL RELEASE OF ALL CLAIMS\nThis Confidential Separation Agreement and General Release of All Claims ("Separation Agreement") is made by and between Life\nTechnologies Corporation, and any affiliates, subsidiaries, and merged (predecessor) entities (collectively the "Company") and Bernd Brust\n("Employee") with respect to the following facts:\nA. Employee has been employed by the Company as a Head of Molecular Medicine.\nB. Employee's employment will cease effective October 25, 2011 ("Separation Date"). The Company wishes to reach an amicable separation\nwith Employee and assist Employee's transition to other employment. For the sake of clarity, the termination of Employee's employment on the\nSeparation Date is not intended to create a termination of Service (as that term is defined in the Life Technologies 2009 Equity Incentive Plan).\nC. Employee and Company entered into an Indemnification Agreement dated March 23, 2005 ("Indemnification Agreement"), which\nis\nincorporated into this Separation Agreement by reference. The parties intend that the Indemnification Agreement shall remain in full force and\neffect, notwithstanding the terms of this Separation Agreement and the Consultancy Agreement that is attached hereto as Attachment A.\nD. The parties desire to settle all claims and issues that have been, or could have been, raised in relation to Employee's employment with the\nCompany and arising out of or in any way related to the acts, transactions or occurrences between Employee, on the one hand and the Company on\nthe other hand, to date, including, but not limited to, Employee's employment with the Company or the termination of that employment, on the terms\nset forth below.\nTHEREFORE, in consideration of the promises and mutual agreements hereinafter set forth, it is agreed by and between the undersigned as\nfollows:\n1. Severance Package. If Employee executes this Separation Agreement, does not revoke it, and returns it to the Company by the deadline\nstated in Paragraph 19, the Company agrees to provide Employee with the following payments and benefits ("Severance Package"). Employee\nacknowledges and agrees that Employee is not otherwise entitled to such Severance Package, and that this Severance Package constitutes adequate\nlegal consideration for the promises and representations made by Employee in this Separation Agreement.\n1.1. Consultancy. The Company will enter into a consultancy arrangement with Employee for a period up to, and not extending beyond,\nDecember 31, 2011 ("Consultancy Period"), at a rate of $5,000 per month. Employee understands and agrees that Employee must satisfy any\nCompany-required prerequisites to becoming a consultant, including without limitation, executing a consulting agreement with the Company,\nsubstantially similar to the form attached as Attachment A. As a consultant, Employee will be eligible to vest in those equity grants with vesting\ndates that occur during the Consultancy Period. However, Employee understands and agrees that any equity grants that do not vest during the\nConsultancy Period will be forfeited in accordance with the terms of the governing grant agreements and Company plan documents. Employee\nacknowledges and agrees that during the Consultancy Period, Employee's relationship with the Company will be that of an independent contractor,\nnot an employee of the Company. Employee further understands and agrees that if, at any time during\nBrust, Bernd\nPage 1 of 7\nthe Consultancy Period, Employee decides to perform consulting or other services for, or engage in or intend to engage in an employment\nrelationship with another company, Employee shall notify the Company prior to accepting such service and secure Company's written approval. The\nCompany reserves the right to terminate the consultancy agreement in accordance with the terms of the consulting agreement, which will result\nin\nEmployee becoming ineligible to receive any further pay or other benefits associated with the consultancy.\n1.2. Continuation of Group Health Benefits. The Company agrees to continue through the end of the month in which Employee's\nSeparation Date occurs, the same medical and dental coverage that was in effect immediately prior to the Separation Date. In addition, the Company\nwill pay for the monthly premiums required to continue Employee's group health insurance coverage for an additional two (2) months, provided\nEmployee elects to continue such benefits and remains eligible to receive such benefits in accordance with the applicable provisions of the\nConsolidated Omnibus Budget Reconciliation Act of 1985.\n1.3. Qutplacement Services. The Company agrees to provide Employee with outplacement assistance, in an amount and level decided by\nCompany, for nine (9) months. To remain eligible for Outplacement Services, Employee must commence the Outplacement Services within 60 days\nafter the completion of the Consultancy Period, otherwise the benefits will expire. In no event will Employee receive a cash payment or other\nconsideration in lieu of the Outplacement Services.\n2. Accrued and Vested Benefits. The parties agree that Employee shall receive any and all benefits due to Employee upon termination of\nemployment in accordance with Life Technologies' policies and benefits plans, including, without limitation, accrued but unused vacation pay, if\napplicable, and any vested pension or other vested retirement benefits.\n3. General Release.\n3.1. Except for the claims identified in the last sentence of this Paragraph 3.1, Employee unconditionally, irrevocably and absolutely\nreleases (i.e., "gives up") and discharges the Company and any parent and subsidiary corporations, divisions and affiliated corporations, partnerships\nor other affiliated entities of the Company, past and present, including Invitrogen Corporation, Applera Corporation, and Applied Biosystems, Inc.,\nas well as the Company's employees, officers, directors, agents, shareholders, successors and assigns (collectively, "Released Parties") from all\nknown and unknown claims that Employee may presently have related in any way to the transactions or occurrences between Employee and any\nReleased Party. This general release includes, but is not limited to, Employee's employment with the Company, the termination of Employee's\nemployment, and all other losses, liabilities, claims, charges, demands and causes of action, known or unknown, suspected or unsuspected, arising\ndirectly or indirectly out of or in any way connected with Employee's employment with the Company. This release is intended to have the\nbroadest\npossible application and includes, but is not limited to, any tort, contract, common law, constitutional or other statutory claims arising under federal,\nstate or local law, including, but not limited to, alleged violations of the Worker Adjustment and Retraining Notification Act, 29 U.S.C. 8 2101, et\nseq.; Title VII of the Civil Rights Act of 1964, 42 U.S.C. 8 2000e, et seq., as amended; the Equal Pay Act, 29 U.S.C. 8 206, as amended; the\nAmericans with Disabilities Act, 42 U.S.C. 8 12101, et seq., as amended; the Age Discrimination in Employment Act of 1967, 29 U.S.C. 8 621, et\nseq., as amended; the Employee Retirement Income Security Act, 29 U.S.C. 8 1001 et seq., as amended; the California Labor Code and Fair\nEmployment and Housing Act, and the anti-discrimination laws of the state in which Employee was employed; all claims for reprisal or retaliation\nunder federal or state law;\nBrust, Bernd\nPage 2 of 7\nany claims for back pay, front pay, liquidated damages, compensatory or punitive damages, and injunctive relief; and all claims for attorneys' fees,\ncosts and expenses. However, this general release is not intended to bar or release any claims that, by law or statute, may not be waived, such as\nclaims for workers' compensation benefits, any challenge to the validity of Employee's release of claims under the Age Discrimination in\nEmployment Act of 1967, as amended, as set forth in this Separation Agreement and unemployment insurance benefits.\n3.2. Employee acknowledges that Employee later may discover facts or law different from, or in addition to, the facts or law that\nEmployee knows or believes to be true at the time Employee released the claims described in this Separation Agreement. Employee agrees,\nnonetheless, that this Separation Agreement and the release contained in it shall be and remain effective in all respects notwithstanding such different\nor additional facts or the discovery of them.\n3.3. Employee declares and represents that Employee intends this Separation Agreement to be complete and not subject to any claim of\nmistake, and that the release herein expresses a full and complete release of all claims, known and unknown, suspected or unsuspected and,\nregardless of the adequacy or inadequacy of the consideration, Employee intends the release herein to be final and complete. Employee executes this\nSeparation Agreement and, where applicable, with the full knowledge that this Separation Agreement's general release covers all possible claims\n(other than those claims specifically excepted from the release) against the Released Parties, to the fullest extent permitted by law.\n3.4. Employee expressly waives Employee's right to recovery of any type, including damages or reinstatement, in any administrative or\ncourt action, whether state or federal, and whether brought by Employee or on Employee's behalf, related in any way to the matters released herein.\n4. California Civil Code Section 1542 Waiver. Employee intentionally releases claims that Employee does not know he or she might have and\nthat, with hindsight, Employee might regret having released. Employee expressly acknowledges and agrees that all rights under Section 1542 of the\nCalifornia Civil Code are expressly waived. That section provides:\nA GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN\nHIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE\nMATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.\n5. Representation Concerning Filing of Legal Actions. Employee represents that, as of the date Employee signed this Separation Agreement,\nEmployee has not filed any lawsuits, charges, complaints, petitions, claims or other accusatory pleadings against the Company or any Released Party\nin any court or with any governmental agency.\n6.\nNondisparagement. Employee agrees that Employee will not make any voluntary statements, written or oral, or cause or encourage others to\nmake any such statements that defame, disparage or in any way criticize the personal and/or business reputations, practices or conduct of the\nCompany or any Released Party.\nBrust, Bernd\nPage 3 of 7\n7. Confidentiality and Return of Company. Property..\n7.1. Confidential Separation Information. Employee agrees that the terms and conditions of this Separation Agreement and any\ndiscussions between Employee and the Company or any Released Party that led to the terms and conditions of this Separation Agreement\n(collectively referred to as the "Confidential Separation Information") are intended to remain confidential between Employee and the Company\nand/or\nsuch\nReleased\nParty.\nEmployee\nfurther\nagrees\nthat\nEmployee\nwill\nnot\ndisclose\nthe\nConfidential\nSeparation\nInformation\nto\nany\nother\npersons,\nexcept that Employee may disclose such information to Employee's immediate family members and to Employee's attorney(s) and/or accountant(s),\nif any, to the extent needed for legal advice or income tax reporting purposes. When releasing this information to any such person, Employee shall\nadvise the person receiving the information of its confidential nature and treatment as such. Employee, and anyone to whom the Confidential\nSeparation Information has been disclosed, will not respond to, or in any way participate in or contribute to, any public discussion, notice or other\npublicity concerning the Confidential Separation Information. Without limiting the generality of the foregoing, Employee specifically agrees that\nneither Employee, Employee's immediate family, Employee's attorney, nor Employee's accountant, if any, shall disclose the Confidential Separation\nInformation to any current, former or prospective employee of the Company. Nothing in this section will preclude Employee from disclosing\ninformation required in response to a subpoena duly issued by a court of law or a government agency having jurisdiction or power to compel such\ndisclosure, or from giving full, truthful and cooperative answers in response to a duly issued subpoena.\n7.2. Confidential or Proprietary. Information. Employee also agrees and represents that Employee has not and will not use, misuse,\nremove from the Company's premises without permission, make unauthorized copies of or disclose any confidential or proprietary information of\nthe Company or any affiliated or related entities, including but not limited to, their trade secrets, copyrighted information, customer lists, any\ninformation encompassed in any research and development reports, work in progress, drawings, software, computer files or models, designs, plans,\nproposals, marketing and sales programs, financial projections, and all concepts or ideas, materials or information related to the business or sales\nof\nthe Company and any affiliated or related entities. Employee acknowledges signing either: (i) Invitrogen's Information and Technology Agreement\nand Trade Secrets Policy; (ii) Applied Biosystems Conflict of Interest and Confidentiality Agreement; and/or (iii) Life Technologies' Information\nand Technology Agreement and Confidential Information and Trade Secrets Agreement (collectively referred to as the "Confidentiality\nAgreements") and agrees that the terms and conditions of any and all such agreements (including those signed prior to the merger or acquisition of\nany former employer with the Company) are expressly incorporated herein by reference, and survive the termination of Employee's employment.\nEmployee also understands and agrees that Employee's obligations under any Insider Trading policy extend beyond Employee's employment with\nthe Company.\n7.3. Return of Company Property.. Employee understands and agrees that as a condition of receiving the Severance Package described in\nParagraph 1, all Company property must be returned to the Company on or before the Separation Date. By signing this Separation Agreement,\nEmployee represents and warrants that Employee will return to the Company, on or before the Separation Date, all Company property, including but\nnot limited to all confidential and proprietary information, as described in Paragraph 7.2 above, and all materials and documents containing\ntrade\nsecrets and copyrighted materials, including all copies and excerpts of the same.\nBrust, Bernd\nPage 4 of 7\n7.4. Promise Not to Solicit. To prevent Employee from inevitably breaking the promises Employee has just made in Paragraph 7.2 above,\nEmployee further agrees that, for twelve (12) months from the Separation Date (a) as to any customer or supplier of the Company or its affiliates\nwith whom Employee had dealings or about whom Employee acquired proprietary information during Employee's employment, Employee will not\nsolicit or attempt to solicit the customer or supplier to do business with any person or entity to the detriment of the Company where such solicitation\nuses the confidential or proprietary information of the Company; and (b) Employee will not solicit for employment any person who is, or within the\npreceding six (6) months was, an officer, manager, employee, or consultant of the Company or its affiliates, unless the individual was no longer\nemployed by the Company before Employee's solicitation.\n8. Cooperation. Employee agrees that Employee will fully cooperate with Company in connection with any claims, lawsuits, or proceedings\nthat relate in any manner to Employee's conduct or duties at Company or that are based on facts about which Employee obtained personal\nknowledge while employed at Company. Any reasonable out-of-pocket expenses incurred by Employee associated with such cooperation will be\npaid for or reimbursed by the Company.\n9. Enforcement. If Employee breaches any of the terms in Paragraphs 6 or 7 above or their subparts, the Company will immediately cease\nproviding the Severance Package described in Paragraph 1 above, to the extent those payments and benefits have not yet been provided, to the fullest\nextent permitted by law. This shall in no way limit the Company's right to pursue all legal and equitable remedies available to it as a result of\nEmployee's breach of the Separation Agreement, to the fullest extent permitted by law.\n10. No Admissions. By entering into this Separation Agreement, the Company and any Released Party make no admission that they have\nengaged, or are now engaging, in any wrongdoing. The parties understand and acknowledge that this Separation Agreement is not an admission\nof\nliability and shall not be used or construed as such in any legal or administrative proceeding.\n11. No Other Severance Benefits. Employee acknowledges and agrees that the Severance Package provided pursuant to this Agreement is\nin\nlieu of any other severance benefits to which Employee may be eligible under any other agreement and/or severance plan or practice (including but\nnot limited to the Life Technologies Corporation Executive Officer Severance Plan) and Employee waives any and all rights to such other severance\nbenefits.\n12. Representation and Promise. Employee has not suffered any job-related wrongs or injuries, such as any type of discrimination, for which\nEmployee might still be entitled to compensation or relief in the future. Employee has properly reported any and all job-related wrongs or injuries\nfor\nwhich Employee might still be entitled to compensation or relief, such as an injury for which Employee might receive a workers' compensation\naward in the future. Employee has properly reported all hours that Employee has worked and Employee has been paid all wages, overtime,\ncommissions, compensation, benefits, and other amounts that the Company or any Released Party should have paid Employee in the past.\n13. Severability.. In the event any provision of this Separation Agreement shall be found unenforceable by an arbitrator or a court of competent\njurisdiction, the provision shall be deemed modified to the extent necessary to allow enforceability of the provision as so limited, it being intended\nthat the parties shall receive the benefits contemplated herein to the fullest\nBrust, Bernd\nPage 5 of 7\nextent permitted by law. If a deemed modification is not satisfactory in the judgment of such arbitrator or court, the unenforceable provision shall be\ndeemed deleted, and the validity and enforceability of the remaining provisions shall not be affected thereby.\n14. Applicable Law. The validity, interpretation and performance of this Separation Agreement shall be construed and interpreted according to\nthe laws of the United States of America and the state of California.\n15. Binding on Successors The parties agree that this Separation Agreement shall be binding on, and inure to the benefit of, Employee's and\nthe Company's successors, heirs and/or assigns.\n16. Full Defense. This Separation Agreement may be pled as a full and complete defense to, and may be used as a basis for an injunction\nagainst, any action, suit or other proceeding that may be prosecuted, instituted or attempted by Employee in breach hereof.\n17. Good Faith. The parties agree to do all things necessary and to execute all further documents necessary and appropriate to carry out and\neffectuate the terms and purposes of this Separation Agreement.\n18. Entire Agreement/Modification This Separation Agreement and its attachment(s), including the Indemnification Agreement and the\nsurviving provisions of the Confidentiality Agreements referenced in Paragraph 7.2 above, is intended to be the entire agreement between the parties\nrelating to the termination of Employee's employment and any claims or future rights that Employee may have with respect to the Company and any\nReleased Party. As such, this Separation Agreement and the incorporated Confidentiality Agreements supersede and cancel any and all other and\nprior agreements, written or oral, and represent the entirety of the agreements between Employee and the Company or its affiliates, including any\npredecessor or merged entities, regarding this subject matter. It is agreed that there are no collateral agreements or representations, written or oral,\nregarding the terms and conditions of Employee's separation of employment with the Company and settlement of all claims between the parties\nother than those set forth in this Separation Agreement, the Indemnification Agreement, and the surviving provisions of the Confidentiality\nAgreements. This Separation Agreement may be amended only by a written instrument executed by all parties hereto.\n19. The Older Workers' Benefit Protection Act. This Separation Agreement is intended to satisfy the requirements of the Older Workers'\nBenefit Protection Act, 29 U.S.C. S 626(f) ("OWBPA"). Employee is advised to consult with an attorney before executing this Separation\nAgreement.\n19.1. Acknowledgments/Time to Consider. Employee acknowledges and agrees that (a) Employee has read and understands the terms of\nthis Separation Agreement; (b) this Separation Agreement advises Employee in writing to consult with an attorney before executing this Separation\nAgreement; (c) Employee has obtained and considered such legal counsel as Employee deems necessary; (d) Employee has been given at least\ntwenty-one (21) days to consider whether or not to enter into this Separation Agreement (although Employee may elect not to use the full\nconsideration period at Employee's option); (e) and that by signing this Separation Agreement, Employee acknowledges that Employee does\nso\nfreely, knowingly, and voluntarily. Employee agrees that any changes made to this Separation Agreement, whether material or not material, made\nprior to Employee's signing this Separation Agreement will not restart the time period to review and consider it. If Employee elects to sign this\nBrust, Bernd\nPage 6 of 7\nSeparation Agreement, Employee must return it no later than the close of business on the twenty-first (21st) day after receiving this agreement to the\nCompany at the following address: Lara de Leon, Life Technologies Corporation, 5791 Van Allen Way, Carlsbad, CA 92008.\n19.2. Revocation/Effective Date. Employee may revoke his or her acceptance of this Separation Agreement at any time during the seven\n(7) days after signing it. To be effective, Employee's revocation must be made in writing and returned to the Company at the address provided in the\nabove\nParagraph 19.1, by the close of business on the seventh day after it was signed. If Employee does not revoke his or her acceptance in this\nmanner within the seven (7) day period after signing the Separation Agreement, then Employee's acceptance of this Separation Agreement shall\nbecome binding and enforceable on the eighth day after Employee signs this Separation Agreement ("Effective Date"). The Severance Package shall\nbecome due and payable in accordance with the terms and conditions described in Paragraph 1 above and its subparts.\n19.3. Preserved Rights of Employee. This Separation Agreement does not waive or release any rights or claims that Employee may have\nunder the Age Discrimination in Employment Act that arise after the execution of this Separation Agreement. In addition, this Separation Agreement\ndoes not prohibit Employee from challenging the validity of this Agreement's waiver and release of claims under the Age Discrimination in\nEmployment Act of 1967, as amended.\nDated: October 24, 2011\nBy: /s/ Bernd Brust\nBernd Brust ("Employee")\nON BEHALF OF\nLIFE TECHNOLOGIES CORPORATION\nDated: October 24, 2011\nBy: /s/ Pete Leddy\nIts: SVP, Human Resources\nBrust, Bernd\nPage 7 of 7 EX-10.1 2 d244670dex101.htm CONFIDENTIAL SEPARATION AGREEMENT\nExhibit 10.1\nCONFIDENTIAL SEPARATION AGREEMENT\nAND GENERAL RELEASE OF ALL CLAIMS\nThis Confidential Separation Agreement and General Release of All Claims (“Separation Agreement”) is made by and between Life\nTechnologies Corporation, and any affiliates, subsidiaries, and merged (predecessor) entities (collectively the “Company”) and Bernd Brust\n(“Employee”) with respect to the following facts:\nA. Employee has been employed by the Company as a Head of Molecular Medicine.\nB. Employee’s employment will cease effective October 25, 2011 (“Separation Date”). The Company wishes to reach an amicable separation\nwith Employee and assist Employee’s transition to other employment. For the sake of clarity, the termination of Employee’s employment on the\nSeparation Date is not intended to create a termination of Service (as that term is defined in the Life Technologies 2009 Equity Incentive Plan).\nC. Employee and Company entered into an Indemnification Agreement dated March 23, 2005 (“Indemnification Agreement”), which is\nincorporated into this Separation Agreement by reference. The parties intend that the Indemnification Agreement shall remain in full force and\neffect, notwithstanding the terms of this Separation Agreement and the Consultancy Agreement that is attached hereto as Attachment A.\nD. The parties desire to settle all claims and issues that have been, or could have been, raised in relation to Employee’s employment with the\nCompany and arising out of or in any way related to the acts, transactions or occurrences between Employee, on the one hand and the Company on\nthe other hand, to date, including, but not limited to, Employee’s employment with the Company or the termination of that employment, on the terms\nset forth below.\nTHEREFORE, in consideration of the promises and mutual agreements hereinafter set forth, it is agreed by and between the undersigned as\nfollows:\n1. Severance Package. If Employee executes this Separation Agreement, does not revoke it, and returns it to the Company by the deadline\nstated in Paragraph 19, the Company agrees to provide Employee with the following payments and benefits (“Severance Package”). Employee\nacknowledges and agrees that Employee is not otherwise entitled to such Severance Package, and that this Severance Package constitutes adequate\nlegal consideration for the promises and representations made by Employee in this Separation Agreement.\n1.1 . Consultancy. The Company will enter into a consultancy arrangement with Employee for a period up to, and not extending beyond,\nDecember 31, 2011 (“Consultancy Period”), at a rate of $5,000 per month. Employee understands and agrees that Employee must satisfy any\nCompany-required prerequisites to becoming a consultant, including without limitation, executing a consulting agreement with the Company,\nsubstantially similar to the form attached as Attachment A. As a consultant, Employee will be eligible to vest in those equity grants with vesting\ndates that occur during the Consultancy Period. However, Employee understands and agrees that any equity grants that do not vest during the\nConsultancy Period will be forfeited in accordance with the terms of the governing grant agreements and Company plan documents. Employee\nacknowledges and agrees that during the Consultancy Period, Employee’s relationship with the Company will be that of an independent contractor,\nnot an employee of the Company. Employee further understands and agrees that if, at any time during\nBrust, Bernd\nPage1of7\nthe Consultancy Period, Employee decides to perform consulting or other services for, or engage in or intend to engage in an employment\nrelationship with another company, Employee shall notify the Company prior to accepting such service and secure Company’s written approval. The\nCompany reserves the right to terminate the consultancy agreement in accordance with the terms of the consulting agreement, which will result in\nEmployee becoming ineligible to receive any further pay or other benefits associated with the consultancy.\n1.2 . Continuation of Group Health Benefits. The Company agrees to continue through the end of the month in which Employee’s\nSeparation Date occurs, the same medical and dental coverage that was in effect immediately prior to the Separation Date. In addition, the Company\nwill pay for the monthly premiums required to continue Employee’s group health insurance coverage for an additional two (2) months, provided\nEmployee elects to continue such benefits and remains eligible to receive such benefits in accordance with the applicable provisions of the\nConsolidated Omnibus Budget Reconciliation Act of 1985.\n1.3 . Outplacement Services. The Company agrees to provide Employee with outplacement assistance, in an amount and level decided by\nCompany, for nine (9) months. To remain eligible for Outplacement Services, Employee must commence the Outplacement Services within 60 days\nafter the completion of the Consultancy Period, otherwise the benefits will expire. In no event will Employee receive a cash payment or other\nconsideration in lieu of the Outplacement Services.\n2. Accrued and Vested Benefits. The parties agree that Employee shall receive any and all benefits due to Employee upon termination of\nemployment in accordance with Life Technologies’ policies and benefits plans, including, without limitation, accrued but unused vacation pay, if\napplicable, and any vested pension or other vested retirement benefits.\n3. General Release.\n3.1 . Except for the claims identified in the last sentence of this Paragraph 3.1, Employee unconditionally, irrevocably and absolutely\nreleases (i.e., “gives up”) and discharges the Company and any parent and subsidiary corporations, divisions and affiliated corporations, partnerships\nor other affiliated entities of the Company, past and present, including Invitrogen Corporation, Applera Corporation, and Applied Biosystems, Inc.,\nas well as the Company’s employees, officers, directors, agents, shareholders, successors and assigns (collectively, “Released Parties”), from all\nknown and unknown claims that Employee may presently have related in any way to the transactions or occurrences between Employee and any\nReleased Party. This general release includes, but is not limited to, Employee’s employment with the Company, the termination of Employee’s\nemployment, and all other losses, liabilities, claims, charges, demands and causes of action, known or unknown, suspected or unsuspected, arising\ndirectly or indirectly out of or in any way connected with Employee’s employment with the Company. This release is intended to have the broadest\npossible application and includes, but is not limited to, any tort, contract, common law, constitutional or other statutory claims arising under federal,\nstate or local law, including, but not limited to, alleged violations of the Worker Adjustment and Retraining Notification Act, 29 U.S .C. § 2101, et\nseq.; Title VII of the Civil Rights Act of 1964, 42 U.S .C. § 2000e, et seq., as amended; the Equal Pay Act, 29 U.S.C. § 206, as amended; the\nAmericans with Disabilities Act, 42 U.S.C. § 12101, et seq., as amended; the Age Discrimination in Employment Act of 1967, 29 U.S .C. § 621, et\nseq., as amended; the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq., as amended; the California Labor Code and Fair\nEmployment and Housing Act, and the anti-discrimination laws of the state in which Employee was employed; all claims for reprisal or retaliation\nunder federal or state law;\nBrust, Bernd\nPage2of7\nany claims for back pay, front pay, liquidated damages, compensatory or punitive damages, and injunctive relief; and all claims for attorneys’ fees,\ncosts and expenses. However, this general release is not intended to bar or release any claims that, by law or statute, may not be waived, such as\nclaims for workers’ compensation benefits, any challenge to the validity of Employee’s release of claims under the Age Discrimination in\nEmployment Act of 1967, as amended, as set forth in this Separation Agreement and unemployment insurance benefits.\n3.2 . Employee acknowledges that Employee later may discover facts or law different from, or in addition to, the facts or law that\nEmployee knows or believes to be true at the time Employee released the claims described in this Separation Agreement. Employee agrees,\nnonetheless, that this Separation Agreement and the release contained in it shall be and remain effective in all respects notwithstanding such different\nor additional facts or the discovery of them.\n3.3 . Employee declares and represents that Employee intends this Separation Agreement to be complete and not subject to any claim of\nmistake, and that the release herein expresses a full and complete release of all claims, known and unknown, suspected or unsuspected and,\nregardless of the adequacy or inadequacy of the consideration, Employee intends the release herein to be final and complete. Employee executes this\nSeparation Agreement and, where applicable, with the full knowledge that this Separation Agreement’s general release covers all possible claims\n(other than those claims specifically excepted from the release) against the Released Parties, to the fullest extent permitted by law.\n3.4 . Employee expressly waives Employee’s right to recovery of any type, including damages or reinstatement, in any administrative or\ncourt action, whether state or federal, and whether brought by Employee or on Employee’s behalf, related in any way to the matters released herein.\n4. California Civil Code Section 1542 Waiver. Employee intentionally releases claims that Employee does not know he or she might have and\nthat, with hindsight, Employee might regret having released. Employee expressly acknowledges and agrees that all rights under Section 1542 of the\nCalifornia Civil Code are expressly waived. That section provides:\nA GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN\nHIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE\nMATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.\n5. Representation Concerning Filing of Legal Actions. Employee represents that, as of the date Employee signed this Separation Agreement,\nEmployee has not filed any lawsuits, charges, complaints, petitions, claims or other accusatory pleadings against the Company or any Released Party\nin any court or with any governmental agency.\n6. Nondisparagement. Employee agrees that Employee will not make any voluntary statements, written or oral, or cause or encourage others to\nmake any such statements that defame, disparage or in any way criticize the personal and/or business reputations, practices or conduct of the\nCompany or any Released Party.\nBrust, Bernd\nPage3of7\n7. Confidentiality and Return of Company Property.\n7.1 . Confidential Separation Information. Employee agrees that the terms and conditions of this Separation Agreement and any\ndiscussions between Employee and the Company or any Released Party that led to the terms and conditions of this Separation Agreement\n(collectively referred to as the “Confidential Separation Information”) are intended to remain confidential between Employee and the Company\nand/or such Released Party. Employee further agrees that Employee will not disclose the Confidential Separation Information to any other persons,\nexcept that Employee may disclose such information to Employee’s immediate family members and to Employee’s attorney(s) and/or accountant(s),\nif any, to the extent needed for legal advice or income tax reporting purposes. When releasing this information to any such person, Employee shall\nadvise the person receiving the information of its confidential nature and treatment as such. Employee, and anyone to whom the Confidential\nSeparation Information has been disclosed, will not respond to, or in any way participate in or contribute to, any public discussion, notice or other\npublicity concerning the Confidential Separation Information. Without limiting the generality of the foregoing, Employee specifically agrees that\nneither Employee, Employee’s immediate family, Employee’s attorney, nor Employee’s accountant, if any, shall disclose the Confidential Separation\nInformation to any current, former or prospective employee of the Company. Nothing in this section will preclude Employee from disclosing\ninformation required in response to a subpoena duly issued by a court of law or a government agency having jurisdiction or power to compel such\ndisclosure, or from giving full, truthful and cooperative answers in response to a duly issued subpoena.\n7.2 . Confidential or Proprietary Information. Employee also agrees and represents that Employee has not and will not use, misuse,\nremove from the Company’s premises without permission, make unauthorized copies of or disclose any confidential or proprietary information of\nthe Company or any affiliated or related entities, including but not limited to, their trade secrets, copyrighted information, customer lists, any\ninformation encompassed in any research and development reports, work in progress, drawings, software, computer files or models, designs, plans,\nproposals, marketing and sales programs, financial projections, and all concepts or ideas, materials or information related to the business or sales of\nthe Company and any affiliated or related entities. Employee acknowledges signing either: (i) Invitrogen’s Information and Technology Agreement\nand Trade Secrets Policy; (ii) Applied Biosystems Conflict of Interest and Confidentiality Agreement; and/or (iii) Life Technologies’ Information\nand Technology Agreement and Confidential Information and Trade Secrets Agreement (collectively referred to as the “Confidentiality\nAgreements”) and agrees that the terms and conditions of any and all such agreements (including those signed prior to the merger or acquisition of\nany former employer with the Company) are expressly incorporated herein by reference, and survive the termination of Employee’s employment.\nEmployee also understands and agrees that Employee’s obligations under any Insider Trading policy extend beyond Employee’s employment with\nthe Company.\n7.3 . Return of Company Property. Employee understands and agrees that as a condition of receiving the Severance Package described in\nParagraph 1, all Company property must be returned to the Company on or before the Separation Date. By signing this Separation Agreement,\nEmployee represents and warrants that Employee will return to the Company, on or before the Separation Date, all Company property, including but\nnot limited to all confidential and proprietary information, as described in Paragraph 7.2 above, and all materials and documents containing trade\nsecrets and copyrighted materials, including all copies and excerpts of the same.\nBrust, Bernd\nPage4of7\n7.4. Promise Not to Solicit. To prevent Employee from inevitably breaking the promises Employee has just made in Paragraph 7.2 above,\nEmployee further agrees that, for twelve (12) months from the Separation Date (a) as to any customer or supplier of the Company or its affiliates\nwith whom Employee had dealings or about whom Employee acquired proprietary information during Employee’s employment, Employee will not\nsolicit or attempt to solicit the customer or supplier to do business with any person or entity to the detriment of the Company where such solicitation\nuses the confidential or proprietary information of the Company; and (b) Employee will not solicit for employment any person who is, or within the\npreceding six (6) months was, an officer, manager, employee, or consultant of the Company or its affiliates, unless the individual was no longer\nemployed by the Company before Employee’s solicitation.\n8. Cooperation. Employee agrees that Employee will fully cooperate with Company in connection with any claims, lawsuits, or proceedings\nthat relate in any manner to Employee’s conduct or duties at Company or that are based on facts about which Employee obtained personal\nknowledge while employed at Company. Any reasonable out-of-pocket expenses incurred by Employee associated with such cooperation will be\npaid for or reimbursed by the Company.\n9. Enforcement. If Employee breaches any of the terms in Paragraphs 6 or 7 above or their subparts, the Company will immediately cease\nproviding the Severance Package described in Paragraph 1 above, to the extent those payments and benefits have not yet been provided, to the fullest\nextent permitted by law. This shall in no way limit the Company’s right to pursue all legal and equitable remedies available to it as a result of\nEmployee’s breach of the Separation Agreement, to the fullest extent permitted by law.\n10. No Admissions. By entering into this Separation Agreement, the Company and any Released Party make no admission that they have\nengaged, or are now engaging, in any wrongdoing. The parties understand and acknowledge that this Separation Agreement is not an admission of\nliability and shall not be used or construed as such in any legal or administrative proceeding.\n11. No Other Severance Benefits. Employee acknowledges and agrees that the Severance Package provided pursuant to this Agreement is in\nlieu of any other severance benefits to which Employee may be eligible under any other agreement and/or severance plan or practice (including but\nnot limited to the Life Technologies Corporation Executive Officer Severance Plan) and Employee waives any and all rights to such other severance\nbenefits.\n12. Representation and Promise. Employee has not suffered any job-related wrongs or injuries, such as any type of discrimination, for which\nEmployee might still be entitled to compensation or relief in the future. Employee has properly reported any and all job-related wrongs or injuries for\nwhich Employee might still be entitled to compensation or relief, such as an injury for which Employee might receive a workers’ compensation\naward in the future. Employee has properly reported all hours that Employee has worked and Employee has been paid all wages, overtime,\ncommissions, compensation, benefits, and other amounts that the Company or any Released Party should have paid Employee in the past.\n13. Severability. In the event any provision of this Separation Agreement shall be found unenforceable by an arbitrator or a court of competent\njurisdiction, the provision shall be deemed modified to the extent necessary to allow enforceability of the provision as so limited, it being intended\nthat the parties shall receive the benefits contemplated herein to the fullest\nBrust, Bernd\nPage5of7\nextent permitted by law. If a deemed modification is not satisfactory in the judgment of such arbitrator or court, the unenforceable provision shall be\ndeemed deleted, and the validity and enforceability of the remaining provisions shall not be affected thereby.\n14. Applicable Law. The validity, interpretation and performance of this Separation Agreement shall be construed and interpreted according to\nthe laws of the United States of America and the state of California.\n15. Binding on Successors. The parties agree that this Separation Agreement shall be binding on, and inure to the benefit of, Employee’s and\nthe Company’s successors, heirs and/or assigns.\n16. Full Defense. This Separation Agreement may be pled as a full and complete defense to, and may be used as a basis for an injunction\nagainst, any action, suit or other proceeding that may be prosecuted, instituted or attempted by Employee in breach hereof.\n17. Good Faith. The parties agree to do all things necessary and to execute all further documents necessary and appropriate to carry out and\neffectuate the terms and purposes of this Separation Agreement.\n18. Entire Agreement/Modification. This Separation Agreement and its attachment(s), including the Indemnification Agreement and the\nsurviving provisions of the Confidentiality Agreements referenced in Paragraph 7.2 above, is intended to be the entire agreement between the parties\nrelating to the termination of Employee’s employment and any claims or future rights that Employee may have with respect to the Company and any\nReleased Party. As such, this Separation Agreement and the incorporated Confidentiality Agreements supersede and cancel any and all other and\nprior agreements, written or oral, and represent the entirety of the agreements between Employee and the Company or its affiliates, including any\npredecessor or merged entities, regarding this subject matter. It is agreed that there are no collateral agreements or representations, written or oral,\nregarding the terms and conditions of Employee’s separation of employment with the Company and settlement of all claims between the parties\nother than those set forth in this Separation Agreement, the Indemnification Agreement, and the surviving provisions of the Confidentiality\nAgreements. This Separation Agreement may be amended only by a written instrument executed by all parties hereto.\n19. The Older Workers’ Benefit Protection Act. This Separation Agreement is intended to satisfy the requirements of the Older Workers’\nBenefit Protection Act, 29 U.S.C. § 626(f) (“OWBPA”). Employee is advised to consult with an attorney before executing this Separation\nAgreement.\n19.1. Acknowledgments/Time to Consider. Employee acknowledges and agrees that (a) Employee has read and understands the terms of\nthis Separation Agreement; (b) this Separation Agreement advises Employee in writing to consult with an attorney before executing this Separation\nAgreement; (c) Employee has obtained and considered such legal counsel as Employee deems necessary; (d) Employee has been given at least\ntwenty-one (21) days to consider whether or not to enter into this Separation Agreement (although Employee may elect not to use the full\nconsideration period at Employee’s option); (e) and that by signing this Separation Agreement, Employee acknowledges that Employee does so\nfreely, knowingly, and voluntarily. Employee agrees that any changes made to this Separation Agreement, whether material or not material, made\nprior to Employee’s signing this Separation Agreement will not restart the time period to review and consider it. If Employee elects to sign this\nBrust, Bernd\nPage6of7\nSeparation Agreement, Employee must return it no later than the close of business on the twenty-first (21st) day after receiving this agreement to the\nCompany at the following address: Lara de Leon, Life Technologies Corporation, 5791 Van Allen Way, Carlsbad, CA 92008.\n19.2. Revocation/Effective Date. Employee may revoke his or her acceptance of this Separation Agreement at any time during the seven\n(7) days after signing it. To be effective, Employee’s revocation must be made in writing and returned to the Company at the address provided in the\nabove Paragraph 19.1, by the close of business on the seventh day after it was signed. If Employee does not revoke his or her acceptance in this\nmanner within the seven (7) day period after signing the Separation Agreement, then Employee’s acceptance of this Separation Agreement shall\nbecome binding and enforceable on the eighth day after Employee signs this Separation Agreement (“Effective Date”). The Severance Package shall\nbecome due and payable in accordance with the terms and conditions described in Paragraph 1 above and its subparts.\n19.3. Preserved Rights of Employee. This Separation Agreement does not waive or release any rights or claims that Employee may have\nunder the Age Discrimination in Employment Act that arise after the execution of this Separation Agreement. In addition, this Separation Agreement\ndoes not prohibit Employee from challenging the validity of this Agreement’s waiver and release of claims under the Age Discrimination in\nEmployment Act of 1967, as amended.\nDated: October 24, 2011\nBy: /s/ Bernd Brust\nBernd Brust (“Employee”)\nON BEHALF OF\nLIFE TECHNOLOGIES CORPORATION\nDated: October 24, 2011\nBy: /s/ Pete Leddy\nIts: SVP, Human Resources\nBrust, Bernd\nPage7of7 b20bcd63938e6e0ec5128ece060d9748.pdf effective_date jurisdiction party term EX-99.(D)(G) 16 d440115dex99dg.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(G)\nConfidentiality Agreement\nThis Mutual Confidentiality Agreement (the “Agreement”), dated as of October 15, 2012 and effective as of September 20, 2012 (the “Effective\nDate”), by and between Contran Corporation, a Delaware corporation (“Contran”), and Precision Castparts Corp. (“PCP”), an Oregon corporation\n(collectively the “Parties” and individually a “Party”).\nContran and its affiliates are stockholders of Titanium Metals Corporation (“Timet”), a Delaware corporation. The Parties to this Agreement are\nengaged in discussions about a potential acquisition by PCP of shares of Timet owned by Contran and its affiliates (the “Potential Transaction”) and\ndesire to establish and set forth their respective obligations with respect to discussions relating to the Potential Transaction.\nIn consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the\nParties mutually agree that, without the other Party’s prior written consent, neither Party will, and will cause its directors, officers, employees, agents\nand representatives (collectively, “Representatives”) not to, disclose to any person other than (i) their respective Representatives and (ii) Timet and\nits Representatives, that discussions or negotiations are taking place concerning a Possible Transaction or any terms, conditions, status or other facts\nwith respect to a Proposed Transaction, unless such disclosure is required by law.\nCONTRAN CORPORATION\nBy: /s/ J. Mark Hollingsworth\nName: J. Mark Hollingsworth\nTitle: Vice President and General Counsel\nPRECISION CASTPARTS CORP.\nBy: /s/ Roger A. Cooke\nName: Roger A. Cooke\nTitle: Senior Vice President and General Counsel EX-99.(D)(G) 16 d440115dex99dg.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(G)\nConfidentiality Agreement\nThis Mutual Confidentiality Agreement (the “Agreement”), dated as of October 15, 2012 and effective as of September 20, 2012 (the “Effective\nDate”), by and between Contran Corporation, a Delaware corporation (“Contran”), and Precision Castparts Corp. (“PCP”), an Oregon corporation\n(collectively the “Parties” and individually a “Party”).\nContran and its affiliates are stockholders of Titanium Metals Corporation (“Timet”), a Delaware corporation. The Parties to this Agreement are\nengaged in discussions about a potential acquisition by PCP of shares of Timet owned by Contran and its affiliates (the “Potential Transaction”) and\ndesire to establish and set forth their respective obligations with respect to discussions relating to the Potential Transaction.\nIn consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the\nParties mutually agree that, without the other Party’s prior written consent, neither Party will, and will cause its directors, officers, employees, agents\nand representatives (collectively, “Representatives”) not to, disclose to any person other than (i) their respective Representatives and (ii) Timet and\nits Representatives, that discussions or negotiations are taking place concerning a Possible Transaction or any terms, conditions, status or other facts\nwith respect to a Proposed Transaction, unless such disclosure is required by law.\nCONTRAN CORPORATION\nBy: /s/ J. Mark Hollingsworth\nName: J. Mark Hollingsworth\nTitle: Vice President and General Counsel\nPRECISION CASTPARTS CORP.\nBy: /s/ Roger A. Cooke\nName: Roger A. Cooke\nTitle: Senior Vice President and General Counsel EX-99.(D)(G) 16 d440115dex99dg.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(G)\nConfidentiality Agreemen\nThis Mutual Confidentiality Agreement (the "Agreement"), dated as of October 15, 2012 and effective as of September 20, 2012 (the "Effective\nDate"), by and between Contran Corporation, a Delaware corporation ("Contran"), and Precision Castparts Corp. ("PCP"), an Oregon corporation\n(collectively the "Parties" and individually a "Party").\nContran and its affiliates are stockholders of Titanium Metals Corporation ("Timet"), a Delaware corporation. The Parties to this Agreement are\nengaged in discussions about a potential acquisition by PCP of shares of Timet owned by Contran and its affiliates (the "Potential Transaction")\nand\ndesire to establish and set forth their respective obligations with respect to discussions relating to the Potential Transaction.\nIn consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the\nParties mutually agree that, without the other Party's prior written consent, neither Party will, and will cause its directors, officers, employees, agents\nand representatives (collectively, "Representatives") not to, disclose to any person other than (i) their respective Representatives and (ii) Timet and\nits Representatives, that discussions or negotiations are taking place concerning a Possible Transaction or any terms, conditions, status or other facts\nwith respect to a Proposed Transaction, unless such disclosure is required by law.\nCONTRAN CORPORATION\nBy:\n/s/ J. Mark Hollingsworth\nName: J. Mark Hollingsworth\nTitle: Vice President and General Counsel\nPRECISION CASTPARTS CORP.\nBy: /s/ Roger A. Cooke\nName: Roger A. Cooke\nTitle: Senior Vice President and General Counsel EX-99.(D)(G) 16 d440115dex99dg.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(G)\nConfidentiality Agreement\nThis Mutual Confidentiality Agreement (the “Agreement”), dated as of October 15, 2012 and effective as of September 20, 2012 (the “Effective\nDate”), by and between Contran Corporation, a Delaware corporation (“Contran”), and Precision Castparts Corp. (“PCP”), an Oregon corporation\n(collectively the “Parties” and individually a “Party”).\nContran and its affiliates are stockholders of Titanium Metals Corporation (“Timet”), a Delaware corporation. The Parties to this Agreement are\nengaged in discussions about a potential acquisition by PCP of shares of Timet owned by Contran and its affiliates (the “Potential Transaction”) and\ndesire to establish and set forth their respective obligations with respect to discussions relating to the Potential Transaction.\nIn consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the\nParties mutually agree that, without the other Party’s prior written consent, neither Party will, and will cause its directors, officers, employees, agents\nand representatives (collectively, “Representatives”) not to, disclose to any person other than (i) their respective Representatives and (ii) Timet and\nits Representatives, that discussions or negotiations are taking place concerning a Possible Transaction or any terms, conditions, status or other facts\nwith respect to a Proposed Transaction, unless such disclosure is required by law.\nCONTRAN CORPORATION\nBy: /s/ J. Mark Hollingsworth\nName: J. Mark Hollingsworth\nTitle: Vice President and General Counsel\nPRECISION CASTPARTS CORP.\nBy: /s/ Roger A. Cooke\nName: Roger A. Cooke\nTitle: Senior Vice President and General Counsel b443bb48b9961da261c46fad8d9e84b0.pdf effective_date jurisdiction party term EX-10.1 2 d166304dex101.htm EX-10.1\nExhibit 10.1\nMarch 15, 2016\nCONFIDENTIALITY AGREEMENT\nPierre Mestre\nChairman and President\nOrchestra-Prémaman, S.A.\nZAC Saint-Antoine\n200 avenue des Tamaris\n34130 SAINT AUNES\nFrance\nEmail: pmestre@orchestra-premaman.com\nDear Sirs:\nPRIVATE AND CONFIDENTIAL\nIn connection with Orchestra-Prémaman, S.A.’s (“you” or “your”) proposal of a possible transaction (the “Transaction”) involving Destination\nMaternity Corporation (the “Company”), the Company and its Representatives (as defined below), including Guggenheim Securities, LLC\n(“Guggenheim”), will make available to you certain information which is non-public, confidential or proprietary in nature.\n1. By execution of this letter agreement (the “Agreement”), you agree, subject to the terms and conditions hereof, to treat confidentially any such\ninformation that you or your Representatives are provided by or on behalf of the Company (collectively, the “Evaluation Material”). The term\n“Evaluation Material” shall also include all reports, analyses, notes or other information that are based on, contain or reflect any Evaluation\nMaterial (“Notes”). The term “Evaluation Material” does not include information that (i) is now or becomes generally available to the public\nother than as a result of a disclosure by you or any of your Representatives in violation of this Agreement, (ii) was available to you prior to the\ndisclosure of such Evaluation Material to you pursuant to this Agreement, provided that you do not know or have a reasonable basis to believe\nthat the source of such information is bound by a confidentiality obligation owed to the Company with respect to such information, (iii) becomes\navailable to you on from a source other than the Company or any of its Representatives, provided that you do not know or have a reasonable\nbasis to believe that such source is bound by a confidentiality obligation owed to the Company with respect to such information, or (iv) is or was\nindependently developed by you or any of your Representatives without use of or reference to the Evaluation Material. In addition, the term\n“Evaluation Material” does not include the fact that discussions or negotiations with the Company and its Representatives are or were taking\nplace concerning a possible Transaction, that you have received Evaluation Material (without disclosing the nature or content of such Evaluation\nMaterial) or that you are evaluating a possible Transaction. The term “Representative” means, as to any person, such person’s Affiliates (as\ndefined below) and its and their respective directors, officers, employees, attorneys, accountants, bankers, financial sources, agents,\nrepresentatives and advisors. As used herein, the term “Affiliate” shall have the meaning set forth in Rule 12b-2 promulgated by the Securities\nand Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Company agrees\nthat, as promptly as practicable, it will (i) provide you with the Evaluation Material set forth on Annex A hereto (the\nOrchestra-Prémaman, S.A.\nMarch 15, 2016\nPage 2\n“Agreed Evaluation Material”), and (ii) use reasonable best efforts (including by providing reasonable access during normal business hours to the\nexecutive officers of the Company, provided that such access shall not disrupt the operations of the Company) to provide you with such\nadditional documents and information as you may reasonably request.\n2. You agree that, except as otherwise set forth in this Agreement, you will not use the Evaluation Material for any purpose other than evaluating,\nnegotiating, documenting, pursuing or consummating a possible Transaction (whether in a negotiated transaction or otherwise). You agree not to\ndisclose any Evaluation Material to any person, except that you may disclose Evaluation Material to your Representatives (who will be informed\nby you of the confidential nature of the Evaluation Material and will agree to be bound by the terms of this Agreement that are applicable to your\nRepresentatives) who are participating in your evaluation, negotiation, documentation, pursuit or consummation of a possible Transaction\n(whether in a negotiated transaction or otherwise) or who otherwise have a reasonable need to review the Evaluation Material for the purpose of\nevaluating, negotiating, documenting, pursuing or consummating a possible Transaction (whether in a negotiated transaction or otherwise). You\nagree (a) to undertake commercially reasonable precautions, consistent with the precautions you take to safeguard your own confidential and\nsensitive information, to safeguard and protect the confidentiality of the Evaluation Material and (b) not to authorize or direct your\nRepresentatives to make any disclosure or use of the Evaluation Material in violation of this Agreement. You shall be responsible for any breach\nby your Representatives of the terms of this Agreement that are applicable to your Representatives. Notwithstanding anything to the contrary in\nthis Agreement, so long as no Evaluation Material is revealed thereby, you may publicly disclose any price you are prepared to offer, any\ntransaction structure you are proposing to use and the results of any regulatory (including antitrust) analysis relating to the Transaction.\n3. You agree that, without the consent of the Company, you and your Representatives will not disclose information regarding specific discussions\nor negotiations that have taken place concerning a possible Transaction or any of the specific terms or conditions that have been discussed,\nexcept to the extent you are advised by your counsel that you are required to do so under applicable law, rule, or regulation. Notwithstanding\nanything to the contrary in this Agreement, you may publicly disclose any letter or other communication from you or your Representatives to the\nCompany’s Board of Directors regarding any offer or proposal in respect of a Transaction as long as such letter does not disclose Evaluation\nMaterial. The Company acknowledges and agrees that you will amend your Schedule 13D to reflect that the parties have entered into this\nAgreement (and that this Agreement itself will be disclosed) and that the parties intend to explore a possible Transaction. The Company further\nagrees that the obligations set forth in Section 5 hereof do not apply to any disclosure made pursuant to Section 2 or this Section 3.\n4. You understand and agree that neither the Company nor any of its Representatives have made or make any representation or warranty,\nexpressed or implied, as to the accuracy or completeness of the Evaluation Material or shall have any liability whatsoever to you or any of your\nRepresentatives relating to or resulting from the use or content of the Evaluation Material. You further understand and agree that, except as\notherwise provided in the last sentence of Section 1 hereof, neither the Company nor any of its Representatives is under any obligation to make\nany particular information available to you or to supplement or update any Evaluation Material previously provided.\n5. If you or any of your Representatives are requested or required to disclose any Evaluation Material pursuant to any applicable law, the\nrequirements of any regulatory authority or stock exchange listing rules, or in connection with any legal process or proceeding, you will, to the\nextent legally permitted, give the Company prompt written notice of such request or requirement and reasonably cooperate with the Company for\nit to seek\nOrchestra-Prémaman, S.A.\nMarch 15, 2016\nPage 3\na protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained, you or your\nRepresentatives will disclose only that portion of the Evaluation Material which, upon the written advice of your counsel and, to the extent\nlegally permitted, after notifying the Company, is legally required to be disclosed. Notwithstanding the foregoing, you will not be permitted to\ndisclose any Evaluation Material if the applicable law, requirements of any regulatory authority or stock exchange listing rules require such\ndisclosure by virtue of the fact that you have made or intend to make a transaction proposal or offer involving the Company or to solicit support\nfor any such proposal or offer from the Company’s stockholders.\n6. Prior to the expiration of a period of 60 days following the date hereof, neither the Company nor any of its Representatives may request that\nyou and your Representatives return to the Company or destroy all copies of the Evaluation Material and destroy all Notes. If, after the expiration\nof such period, the Company or Guggenheim requests in writing for any reason, you and your Representatives will, at your option, promptly\nreturn to the Company or destroy all copies of the Evaluation Material and destroy all Notes, in each case without retaining a copy thereof.\nNotwithstanding the foregoing, you and your Representatives shall (i) not be required to destroy electronic copies of the Evaluation Material or\nNotes that may be found in your or your Representatives’ files in accordance with your or their respective archival or back-up procedures or\nrecord retention policies, and (ii) be permitted to retain a copy of any Evaluation Material to the extent that such retention is as required by law,\nrule, regulation or professional obligations. Notwithstanding the return of the Evaluation Material and destruction of all Notes or the Company’s\nor Guggenheim’s request for such destruction, you and your Representatives will continue to be bound by your obligations of confidentiality and\nother obligations hereunder in accordance with the terms of this Agreement.\n7. You hereby acknowledge that you are aware, and that you will advise your Representatives, that the securities laws of the United States\nprohibit any person who is aware of material non-public information concerning the Company or a possible Transaction involving the Company\nfrom purchasing or selling the Company’s securities or from communicating such information to any other person under circumstances in which\nit is reasonably foreseeable that such person is likely to purchase or sell such securities.\n8. Until March 22, 2016, and thereafter as long as the Agreed Evaluation Material is actually provided to you in accordance with the terms of this\nAgreement, you agree that during the Restricted Period (as defined below), you will not, and will cause your Affiliates and Representatives\nacting on your behalf not to, directly or indirectly, without the prior written consent of the Company’s Board of Directors or an authorized\ncommittee thereof: (i) engage in, or advise, encourage, or influence any person with respect to, any “solicitation” of “proxies” or “consents” or\nbecome a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) of proxies or consents, in each\ncase, with respect to the election or removal of directors the Company; (ii) submit any stockholder proposal (pursuant to Rule 14a-8 promulgated\nby the SEC under the Exchange Act or otherwise) or any notice of nomination or other business for consideration, or nominate any candidate for\nelection to the Board other than as expressly permitted by this Agreement; (iii) encourage any person to submit nominations in furtherance of a\n“contested solicitation” for the election or removal of directors with respect to the Company; or (iv) seek to call, or to request the calling of, a\nspecial meeting of the stockholders of the Company; provided that (a) any disclosure or activity expressly permitted pursuant to the terms of this\nAgreement will not be prevented by the foregoing restrictions, (b) you are free to request representation on the Company’s Board of Directors at\nany time after you have filed an amendment to your Schedule 13D relating to the Company indicating that you are no longer seeking to acquire\ncontrol of the Company (provided you have not thereafter made another filing with the SEC reflecting a change in that intention), and (c) you are\nfree to vote any shares that you own however you wish. For purposes of this Agreement, the “Restricted Period” shall mean the period beginning\non the date hereof and ending on the earlier of (a) January 1, 2017, and (b) the date, if any, (1) that the Company enters into an\nOrchestra-Prémaman, S.A.\nMarch 15, 2016\nPage 4\nagreement with any third party providing for any merger, consolidation, business combination, asset sale or other extraordinary transaction that\nwould result in the conversion of more than 50% of the Company’s outstanding common equity or the sale of 50% or more of the Company’s\nassets, (2) that the Board recommends in favor of, or publicly takes a neutral position with respect to, any tender or exchange offer by any third\nparty for more than 50% of the Company’s outstanding equity securities, or (3) on which a majority of the members of the Board as of the date\nhereof cease to be directors of the Company. In addition, notwithstanding any other provision of this Agreement, nothing herein shall prevent\nyou or your Affiliates from acquiring securities of, or entering into business combination with, any person who beneficially owns any securities\nof the Company as long as the purpose of such transaction is not to circumvent the restrictions set forth in this Section 8.\n9. You agree that (i) the Company and Guggenheim shall be free to conduct a process respecting a possible Transaction as they in their sole\ndiscretion shall determine (including negotiating with any prospective transaction party and entering into definitive agreements without prior\nnotice to you or any other person), (ii) any procedures relating to a possible Transaction may be changed at any time without notice to you or any\nother person, and (iii) the Company shall have the right to reject or accept any potential transaction party, proposal or offer, or to terminate\ndiscussions and negotiations with you, at any time for any reason whatsoever, in its sole discretion.\n10. You further agree that this Agreement only creates obligations between the parties hereto with respect to the matters specifically agreed to\nherein, and further that this Agreement does not obligate the parties hereto or any of their respective Affiliates to negotiate or enter into a\ndefinitive agreement with respect to any Transaction or to consummate any Transaction.\n11. You agree that all (i) communications with the Company or its directors and officers regarding a possible Transaction, (ii) requests for\nadditional information regarding a possible Transaction, (iii) requests for facility tours or management meetings, and (iv) discussions or\nquestions regarding procedures relating to a possible Transaction will be submitted or directed exclusively to Guggenheim; provided, however,\nthat you may make any offer, proposal or request for waiver directly to the Company’s Board of Directors and engage in discussions and\nnegotiations with the Company’s Board of Directors and its Representatives regarding any such offer, proposal or request.\n12. You agree that, until January 1, 2017, neither you nor any of your Affiliates will, directly or indirectly, without the Company’s prior written\nconsent, solicit for employment any employees of the Company or any of its subsidiaries with whom you have had contact or who were\nintroduced to you during the period of your investigation of the Company in an executive or management level position. The preceding sentence\ndoes not, however, prohibit you or your Affiliates from making general solicitations for employment by means of advertisements, public notices,\nrecruiting agencies or internal or external websites or job search engines or, directly or indirectly, hiring any person who (i) responds thereto,\n(ii) contacts you or your Affiliates on their own initiative without prior solicitation by or on behalf of you or your Affiliates, or (iii) ceases to be\nemployed by the Company without prior solicitation by or on behalf of you or your Affiliates.\n13. Neither you nor your Representatives or any other person acting on your behalf will, directly or indirectly, without the prior written consent\nof the Company’s Board of Directors or an authorized committee thereof, provide information pertaining to or otherwise engage in any\ndiscussions with any executive officer or director of the Company (i) regarding employment with you, your Affiliates or the Company following\nthe consummation of a Transaction or (ii) regarding compensation, equity awards or other employee benefits that may be offered in connection\nwith the employment of such person by you, your Affiliates or the Company following the consummation of a Transaction.\nOrchestra-Prémaman, S.A.\nMarch 15, 2016\nPage 5\n14. Each party hereto agrees that money damages may not be a sufficient remedy for any breach of this Agreement by the other party or it\nRepresentatives and that, in addition to all other remedies that may be available to such party, each party shall be entitled to seek specific\nperformance and injunctive or other equitable relief as a remedy for any such breach. If any provision or portion of this Agreement is determined\nby a court of competent jurisdiction to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of this\nAgreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law.\n15. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware. Each party hereto\nhereby irrevocably and unconditionally submits to the exclusive jurisdiction of any State or Federal court sitting in Delaware over any suit,\naction or proceeding arising out of or relating to this Agreement. Each party hereto hereby irrevocably and unconditionally waive any objection\nto the placing of venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding\nbrought in any such court has been brought in an inconvenient forum.\n16. This Agreement may be executed in two or more counterparts, each of which will be deemed to be an original copy of this Agreement, and\nall of which, when taken together, shall be deemed to constitute one and the same agreement. The exchange of copies of this Agreement and of\nsignature pages by facsimile transmission or electronic mail in .pdf or similar format shall constitute effective execution and delivery of this\nAgreement as to the parties. For purposes of this Agreement any reference to “written” or “in writing” shall be deemed to include\ncorrespondence by signed letter or facsimile or by e-mail.\n17. During the Restricted Period, (i) the Company agrees to refrain from, and to cause its officers and directors to refrain from, any derogatory or\ndefamatory statements or communications concerning you or any of your officers or directors, and (ii) you agree to refrain from, and to cause\nyour officers and directors to refrain from, any derogatory or defamatory statements or communications concerning the Company or any of its\nofficers or directors.\n18. Unless otherwise provided herein, this Agreement shall terminate on the earlier of (i) the date of entry into of a definitive agreement\nregarding a Transaction with you, and (ii) January 1, 2017.\nIf you are in agreement with the foregoing, please so indicate by signing, dating and returning one copy of this Agreement, which will constitute\nour agreement with respect to the matters set forth herein.\nVery truly yours,\nDestination Maternity Corporation\nBy: /s/ Anthony M. Romano\nAnthony M. Romano\nPresident and Chief Executive Officer\nOrchestra-Prémaman, S.A.\nMarch 15, 2016\nPage 6\nConfirmed and Agreed to:\nOrchestra-Prémaman, S.A.\nBy: /s/ Pierre Mestre\nPierre Mestre, Chairman and President EX-10.1 2 d166304dex101.htm EX-10.1\nExhibit 10.1\nMarch 15, 2016\nCONFIDENTIALITY AGREEMENT\nPierre Mestre\nChairman and President\nOrchestra-Prémaman, S.A.\nZAC Saint-Antoine\n200 avenue des Tamaris\n34130 SAINT AUNES\nFrance\nEmail: pmestre@orchestra-premaman.com\nDear Sirs:\nPRIVATE AND CONFIDENTIAL\nIn connection with Orchestra-Prémaman, S.A.’s (“you” or “your”) proposal of a possible transaction (the “Transaction”) involving Destination\nMaternity Corporation (the “Company”), the Company and its Representatives (as defined below), including Guggenheim Securities, LL.C\n(“Guggenheim”), will make available to you certain information which is non-public, confidential or proprietary in nature.\n1. By execution of this letter agreement (the “Agreement”), you agree, subject to the terms and conditions hereof, to treat confidentially any such\ninformation that you or your Representatives are provided by or on behalf of the Company (collectively, the “Evaluation Material”). The term\n“Evaluation Material” shall also include all reports, analyses, notes or other information that are based on, contain or reflect any Evaluation\nMaterial (“Notes”). The term “Evaluation Material” does not include information that (i) is now or becomes generally available to the public\nother than as a result of a disclosure by you or any of your Representatives in violation of this Agreement, (ii) was available to you prior to the\ndisclosure of such Evaluation Material to you pursuant to this Agreement, provided that you do not know or have a reasonable basis to believe\nthat the source of such information is bound by a confidentiality obligation owed to the Company with respect to such information, (iii) becomes\navailable to you on from a source other than the Company or any of its Representatives, provided that you do not know or have a reasonable\nbasis to believe that such source is bound by a confidentiality obligation owed to the Company with respect to such information, or (iv) is or was\nindependently developed by you or any of your Representatives without use of or reference to the Evaluation Material. In addition, the term\n“Evaluation Material” does not include the fact that discussions or negotiations with the Company and its Representatives are or were taking\nplace concerning a possible Transaction, that you have received Evaluation Material (without disclosing the nature or content of such Evaluation\nMaterial) or that you are evaluating a possible Transaction. The term “Representative” means, as to any person, such person’s Affiliates (as\ndefined below) and its and their respective directors, officers, employees, attorneys, accountants, bankers, financial sources, agents,\nrepresentatives and advisors. As used herein, the term “Affiliate” shall have the meaning set forth in Rule 12b-2 promulgated by the Securities\nand Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Company agrees\nthat, as promptly as practicable, it will (i) provide you with the Evaluation Material set forth on Annex A hereto (the\nOrchestra-Prémaman, S.A.\nMarch 15, 2016\nPage 2\n“Agreed Evaluation Material”), and (ii) use reasonable best efforts (including by providing reasonable access during normal business hours to the\nexecutive officers of the Company, provided that such access shall not disrupt the operations of the Company) to provide you with such\nadditional documents and information as you may reasonably request.\n2. You agree that, except as otherwise set forth in this Agreement, you will not use the Evaluation Material for any purpose other than evaluating,\nnegotiating, documenting, pursuing or consummating a possible Transaction (whether in a negotiated transaction or otherwise). You agree not to\ndisclose any Evaluation Material to any person, except that you may disclose Evaluation Material to your Representatives (who will be informed\nby you of the confidential nature of the Evaluation Material and will agree to be bound by the terms of this Agreement that are applicable to your\nRepresentatives) who are participating in your evaluation, negotiation, documentation, pursuit or consummation of a possible Transaction\n(whether in a negotiated transaction or otherwise) or who otherwise have a reasonable need to review the Evaluation Material for the purpose of\nevaluating, negotiating, documenting, pursuing or consummating a possible Transaction (whether in a negotiated transaction or otherwise). You\nagree (a) to undertake commercially reasonable precautions, consistent with the precautions you take to safeguard your own confidential and\nsensitive information, to safeguard and protect the confidentiality of the Evaluation Material and (b) not to authorize or direct your\nRepresentatives to make any disclosure or use of the Evaluation Material in violation of this Agreement. You shall be responsible for any breach\nby your Representatives of the terms of this Agreement that are applicable to your Representatives. Notwithstanding anything to the contrary in\nthis Agreement, so long as no Evaluation Material is revealed thereby, you may publicly disclose any price you are prepared to offer, any\ntransaction structure you are proposing to use and the results of any regulatory (including antitrust) analysis relating to the Transaction.\n3. You agree that, without the consent of the Company, you and your Representatives will not disclose information regarding specific discussions\nor negotiations that have taken place concerning a possible Transaction or any of the specific terms or conditions that have been discussed,\nexcept to the extent you are advised by your counsel that you are required to do so under applicable law, rule, or regulation. Notwithstanding\nanything to the contrary in this Agreement, you may publicly disclose any letter or other communication from you or your Representatives to the\nCompany’s Board of Directors regarding any offer or proposal in respect of a Transaction as long as such letter does not disclose Evaluation\nMaterial. The Company acknowledges and agrees that you will amend your Schedule 13D to reflect that the parties have entered into this\nAgreement (and that this Agreement itself will be disclosed) and that the parties intend to explore a possible Transaction. The Company further\nagrees that the obligations set forth in Section 5 hereof do not apply to any disclosure made pursuant to Section 2 or this Section 3.\n4. You understand and agree that neither the Company nor any of its Representatives have made or make any representation or warranty,\nexpressed or implied, as to the accuracy or completeness of the Evaluation Material or shall have any liability whatsoever to you or any of your\nRepresentatives relating to or resulting from the use or content of the Evaluation Material. You further understand and agree that, except as\notherwise provided in the last sentence of Section 1 hereof, neither the Company nor any of its Representatives is under any obligation to make\nany particular information available to you or to supplement or update any Evaluation Material previously provided.\n5. If you or any of your Representatives are requested or required to disclose any Evaluation Material pursuant to any applicable law, the\nrequirements of any regulatory authority or stock exchange listing rules, or in connection with any legal process or proceeding, you will, to the\nextent legally permitted, give the Company prompt written notice of such request or requirement and reasonably cooperate with the Company for\nit to seek\nOrchestra-Prémaman, S.A.\nMarch 15, 2016\nPage 3\na protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained, you or your\nRepresentatives will disclose only that portion of the Evaluation Material which, upon the written advice of your counsel and, to the extent\nlegally permitted, after notifying the Company, is legally required to be disclosed. Notwithstanding the foregoing, you will not be permitted to\ndisclose any Evaluation Material if the applicable law, requirements of any regulatory authority or stock exchange listing rules require such\ndisclosure by virtue of the fact that you have made or intend to make a transaction proposal or offer involving the Company or to solicit support\nfor any such proposal or offer from the Company’s stockholders.\n6. Prior to the expiration of a period of 60 days following the date hereof, neither the Company nor any of its Representatives may request that\nyou and your Representatives return to the Company or destroy all copies of the Evaluation Material and destroy all Notes. If, after the expiration\nof such period, the Company or Guggenheim requests in writing for any reason, you and your Representatives will, at your option, promptly\nreturn to the Company or destroy all copies of the Evaluation Material and destroy all Notes, in each case without retaining a copy thereof.\nNotwithstanding the foregoing, you and your Representatives shall (i) not be required to destroy electronic copies of the Evaluation Material or\nNotes that may be found in your or your Representatives’ files in accordance with your or their respective archival or back-up procedures or\nrecord retention policies, and (ii) be permitted to retain a copy of any Evaluation Material to the extent that such retention is as required by law,\nrule, regulation or professional obligations. Notwithstanding the return of the Evaluation Material and destruction of all Notes or the Company’s\nor Guggenheim’s request for such destruction, you and your Representatives will continue to be bound by your obligations of confidentiality and\nother obligations hereunder in accordance with the terms of this Agreement.\n7. You hereby acknowledge that you are aware, and that you will advise your Representatives, that the securities laws of the United States\nprohibit any person who is aware of material non-public information concerning the Company or a possible Transaction involving the Company\nfrom purchasing or selling the Company’s securities or from communicating such information to any other person under circumstances in which\nit is reasonably foreseeable that such person is likely to purchase or sell such securities.\n8. Until March 22, 2016, and thereafter as long as the Agreed Evaluation Material is actually provided to you in accordance with the terms of this\nAgreement, you agree that during the Restricted Period (as defined below), you will not, and will cause your Affiliates and Representatives\nacting on your behalf not to, directly or indirectly, without the prior written consent of the Company’s Board of Directors or an authorized\ncommittee thereof: (i) engage in, or advise, encourage, or influence any person with respect to, any “solicitation” of “proxies” or “consents” or\nbecome a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) of proxies or consents, in each\ncase, with respect to the election or removal of directors the Company; (ii) submit any stockholder proposal (pursuant to Rule 14a-8 promulgated\nby the SEC under the Exchange Act or otherwise) or any notice of nomination or other business for consideration, or nominate any candidate for\nelection to the Board other than as expressly permitted by this Agreement; (iii) encourage any person to submit nominations in furtherance of a\n“contested solicitation” for the election or removal of directors with respect to the Company; or (iv) seek to call, or to request the calling of, a\nspecial meeting of the stockholders of the Company; provided that (a) any disclosure or activity expressly permitted pursuant to the terms of this\nAgreement will not be prevented by the foregoing restrictions, (b) you are free to request representation on the Company’s Board of Directors at\nany time after you have filed an amendment to your Schedule 13D relating to the Company indicating that you are no longer seeking to acquire\ncontrol of the Company (provided you have not thereafter made another filing with the SEC reflecting a change in that intention), and (c) you are\nfree to vote any shares that you own however you wish. For purposes of this Agreement, the “Restricted Period” shall mean the period beginning\non the date hereof and ending on the earlier of (a) January 1, 2017, and (b) the date, if any, (1) that the Company enters into an\nOrchestra-Prémaman, S.A.\nMarch 15, 2016\nPage 4\nagreement with any third party providing for any merger, consolidation, business combination, asset sale or other extraordinary transaction that\nwould result in the conversion of more than 50% of the Company’s outstanding common equity or the sale of 50% or more of the Company’s\nassets, (2) that the Board recommends in favor of, or publicly takes a neutral position with respect to, any tender or exchange offer by any third\nparty for more than 50% of the Company’s outstanding equity securities, or (3) on which a majority of the members of the Board as of the date\nhereof cease to be directors of the Company. In addition, notwithstanding any other provision of this Agreement, nothing herein shall prevent\nyou or your Affiliates from acquiring securities of, or entering into business combination with, any person who beneficially owns any securities\nof the Company as long as the purpose of such transaction is not to circumvent the restrictions set forth in this Section 8.\n9. You agree that (i) the Company and Guggenheim shall be free to conduct a process respecting a possible Transaction as they in their sole\ndiscretion shall determine (including negotiating with any prospective transaction party and entering into definitive agreements without prior\nnotice to you or any other person), (ii) any procedures relating to a possible Transaction may be changed at any time without notice to you or any\nother person, and (iii) the Company shall have the right to reject or accept any potential transaction party, proposal or offer, or to terminate\ndiscussions and negotiations with you, at any time for any reason whatsoever, in its sole discretion.\n10. You further agree that this Agreement only creates obligations between the parties hereto with respect to the matters specifically agreed to\nherein, and further that this Agreement does not obligate the parties hereto or any of their respective Affiliates to negotiate or enter into a\ndefinitive agreement with respect to any Transaction or to consummate any Transaction.\n11. You agree that all (i) communications with the Company or its directors and officers regarding a possible Transaction, (ii) requests for\nadditional information regarding a possible Transaction, (iii) requests for facility tours or management meetings, and (iv) discussions or\nquestions regarding procedures relating to a possible Transaction will be submitted or directed exclusively to Guggenheim; provided, however,\nthat you may make any offer, proposal or request for waiver directly to the Company’s Board of Directors and engage in discussions and\nnegotiations with the Company’s Board of Directors and its Representatives regarding any such offer, proposal or request.\n12. You agree that, until January 1, 2017, neither you nor any of your Affiliates will, directly or indirectly, without the Company’s prior written\nconsent, solicit for employment any employees of the Company or any of its subsidiaries with whom you have had contact or who were\nintroduced to you during the period of your investigation of the Company in an executive or management level position. The preceding sentence\ndoes not, however, prohibit you or your Affiliates from making general solicitations for employment by means of advertisements, public notices,\nrecruiting agencies or internal or external websites or job search engines or, directly or indirectly, hiring any person who (i) responds thereto,\n(ii) contacts you or your Affiliates on their own initiative without prior solicitation by or on behalf of you or your Affiliates, or (iii) ceases to be\nemployed by the Company without prior solicitation by or on behalf of you or your Affiliates.\n13. Neither you nor your Representatives or any other person acting on your behalf will, directly or indirectly, without the prior written consent\nof the Company’s Board of Directors or an authorized committee thereof, provide information pertaining to or otherwise engage in any\ndiscussions with any executive officer or director of the Company (i) regarding employment with you, your Affiliates or the Company following\nthe consummation of a Transaction or (ii) regarding compensation, equity awards or other employee benefits that may be offered in connection\nwith the employment of such person by you, your Affiliates or the Company following the consummation of a Transaction.\nOrchestra-Prémaman, S.A.\nMarch 15, 2016\nPage 5\n14. Each party hereto agrees that money damages may not be a sufficient remedy for any breach of this Agreement by the other party or it\nRepresentatives and that, in addition to all other remedies that may be available to such party, each party shall be entitled to seek specific\nperformance and injunctive or other equitable relief as a remedy for any such breach. If any provision or portion of this Agreement is determined\nby a court of competent jurisdiction to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of this\nAgreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law.\n15. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware. Each party hereto\nhereby irrevocably and unconditionally submits to the exclusive jurisdiction of any State or Federal court sitting in Delaware over any suit,\naction or proceeding arising out of or relating to this Agreement. Each party hereto hereby irrevocably and unconditionally waive any objection\nto the placing of venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding\nbrought in any such court has been brought in an inconvenient forum.\n16. This Agreement may be executed in two or more counterparts, each of which will be deemed to be an original copy of this Agreement, and\nall of which, when taken together, shall be deemed to constitute one and the same agreement. The exchange of copies of this Agreement and of\nsignature pages by facsimile transmission or electronic mail in .pdf or similar format shall constitute effective execution and delivery of this\nAgreement as to the parties. For purposes of this Agreement any reference to “written” or “in writing” shall be deemed to include\ncorrespondence by signed letter or facsimile or by e-mail.\n17. During the Restricted Period, (i) the Company agrees to refrain from, and to cause its officers and directors to refrain from, any derogatory or\ndefamatory statements or communications concerning you or any of your officers or directors, and (ii) you agree to refrain from, and to cause\nyour officers and directors to refrain from, any derogatory or defamatory statements or communications concerning the Company or any of its\nofficers or directors.\n18. Unless otherwise provided herein, this Agreement shall terminate on the earlier of (i) the date of entry into of a definitive agreement\nregarding a Transaction with you, and (ii) January 1, 2017.\nIf you are in agreement with the foregoing, please so indicate by signing, dating and returning one copy of this Agreement, which will constitute\nour agreement with respect to the matters set forth herein.\nVery truly yours,\nDestination Maternity Corporation\nBy: /s/ Anthony M. Romano\nAnthony M. Romano\nPresident and Chief Executive Officer\nOrchestra-Prémaman, S.A.\nMarch 15, 2016\nPage 6\nConfirmed and Agreed to:\nOrchestra-Prémaman, S.A.\nBy: /s/ Pierre Mestre\nPierre Mestre, Chairman and President EX-10.1 2 d166304dex101.htm EX-10.1\nExhibit 10.1\nMarch 15, 2016\nCONFIDENTIALITY AGREEMENT\nPierre Mestre\nChairman and President\nOrchestra-Premaman, S.A.\nZAC Saint-Antoine\n200 avenue des Tamaris\n34130 SAINT AUNES\nFrance\nEmail:pmestre@orchestra-premaman.com\nDear Sirs:\nPRIVATE AND CONFIDENTIAL\nIn connection with Orchestra-Premaman, S.A.'s ("you" or "your") proposal of a possible transaction (the "Transaction") involving Destination\nMaternity Corporation (the "Company"), the Company and its Representatives (as defined below), including Guggenheim Securities, LLC\n("Guggenheim"), will make available to you certain information which is non-public, confidential or proprietary in nature.\n1. By execution of this letter agreement (the "Agreement"), you agree, subject to the terms and conditions hereof, to treat confidentially any such\ninformation that you or your Representatives are provided by or on behalf of the Company (collectively, the "Evaluation Material"). The term\n"Evaluation Material" shall also include all reports, analyses, notes or other information that are based on, contain or reflect any Evaluation\nMaterial ("Notes"). The term "Evaluation Material" does not include information that (i) is now or becomes generally available to the public\nother than as a result of a disclosure by you or any of your Representatives in violation of this Agreement, (ii) was available to you prior to the\ndisclosure of such Evaluation Material to you pursuant to this Agreement, provided that you do not know or have a reasonable basis to believe\nthat\nthe\nsource\nof\nsuch information is bound by a confidentiality obligation owed to the Company with respect to such information, (iii) becomes\navailable to you on from a source other than the Company or any of its Representatives, provided that you do not know or have a reasonable\nbasis to believe that such source is bound by a confidentiality obligation owed to the Company with respect to such information, or (iv) is or\nwas\nindependently developed by you or any of your Representatives without use of or reference to the Evaluation Material. In addition, the term\n"Evaluation Material" does not include the fact that discussions or negotiations with the Company and its Representatives are or were taking\nplace concerning a possible Transaction, that you have received Evaluation Material (without disclosing the nature or content of such Evaluation\nMaterial) or that you are evaluating a possible Transaction. The term "Representative" means, as to any person, such person's Affiliates (as\ndefined below) and its and their respective directors, officers, employees, attorneys, accountants, bankers, financial sources, agents,\nrepresentatives and advisors. As used herein, the term "Affiliate" shall have the meaning set forth in Rule 12b-2 promulgated by the Securities\nand Exchange Commission (the "SEC") under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). The Company agrees\nthat, as promptly as practicable, it will (i) provide you with the Evaluation Material set forth on Annex A hereto (the\nOrchestra-Premaman, S.A.\nMarch 15, 2016\nPage 2\n"Agreed Evaluation Material"), and (ii) use reasonable best efforts (including by providing reasonable access during normal business hours to the\nexecutive officers of the Company, provided that such access shall not disrupt the operations of the Company) to provide you with such\nadditional documents and information as you may reasonably request.\n2. You agree that, except as otherwise set forth in this Agreement, you will not use the Evaluation Material for any purpose other than evaluating,\nnegotiating, documenting, pursuing or consummating a possible Transaction (whether in a negotiated transaction or otherwise). You agree not to\ndisclose any Evaluation Material to any person, except that you may disclose Evaluation Material to your Representatives (who will be informed\nby you of the confidential nature of the Evaluation Material and will agree to be bound by the terms of this Agreement that are applicable to your\nRepresentatives) who are participating in your evaluation, negotiation, documentation, pursuit or consummation of a possible Transaction\n(whether in a negotiated transaction or otherwise) or who otherwise have a reasonable need to review the Evaluation Material for the purpose of\nevaluating, negotiating, documenting, pursuing or consummating a possible Transaction (whether in a negotiated transaction or otherwise). You\nagree (a) to undertake commercially reasonable precautions, consistent with the precautions you take to safeguard your own confidential and\nsensitive information, to safeguard and protect the confidentiality of the Evaluation Material and (b) not to authorize or direct your\nRepresentatives to make any disclosure or use of the Evaluation Material in violation of this Agreement. You shall be responsible for any breach\nby your Representatives of the terms of this Agreement that are applicable to your Representatives. Notwithstanding anything to the contrary in\nthis Agreement, so long as no Evaluation Material is revealed thereby, you may publicly disclose any price you are prepared to offer, any\ntransaction structure you are proposing to use and the results of any regulatory (including antitrust) analysis relating to the Transaction.\n3. You agree that, without the consent of the Company, you and your Representatives will not disclose information regarding specific discussions\nor negotiations that have taken place concerning a possible Transaction or any of the specific terms or conditions that have been discussed,\nexcept to the extent you are advised by your counsel that you are required to do so under applicable law, rule, or regulation. Notwithstanding\nanything to the contrary in this Agreement, you may publicly disclose any letter or other communication from you or your Representatives\nto\nthe\nCompany's Board of Directors regarding any offer or proposal in respect of a Transaction as long as such letter does not disclose Evaluation\nMaterial. The Company acknowledges and agrees that you will amend your Schedule 13D to reflect that the parties have entered into this\nAgreement (and that this Agreement itself will be disclosed) and that the parties intend to explore a possible Transaction. The Company further\nagrees that the obligations set forth in Section 5 hereof do not apply to any disclosure made pursuant to Section 2 or this Section 3.\n4. You understand and agree that neither the Company nor any of its Representatives have made or make any representation or warranty,\nexpressed or implied, as to the accuracy or completeness of the Evaluation Material or shall have any liability whatsoever to you or any of your\nRepresentatives relating to or resulting from the use or content of the Evaluation Material. You further understand and agree that, except as\notherwise provided in the last sentence of Section 1 hereof, neither the Company nor any of its Representatives is under any obligation to make\nany particular information available to you or to supplement or update any Evaluation Material previously provided.\n5. If you or any of your Representatives are requested or required to disclose any Evaluation Material pursuant to any applicable law,\nthe\nrequirements of any regulatory authority or stock exchange listing rules, or in connection with any legal process or proceeding, you will, to the\nextent legally permitted, give the Company prompt written notice of such request or requirement and reasonably cooperate with the Company for\nit to seek\nOrchestra-Premaman, S.A.\nMarch 15, 2016\nPage 3\na protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained, you or your\nRepresentatives\nwill\ndisclose\nonly\nthat\nportion\nof\nthe\nEvaluation\nMaterial\nwhich,\nupon\nthe\nwritten\nadvice\nof\nyour\ncounsel\nand,\nto\nthe\nextent\nlegally permitted, after notifying the Company, is legally required to be disclosed. Notwithstanding the foregoing, you will not be permitted to\ndisclose any Evaluation Material if the applicable law, requirements of any regulatory authority or stock exchange listing rules require such\ndisclosure by virtue of the fact that you have made or intend to make a transaction proposal or offer involving the Company or to solicit support\nfor any such proposal or offer from the Company's stockholders.\n6. Prior to the expiration of a period of 60 days following the date hereof, neither the Company nor any of its Representatives may request that\nyou and your Representatives return to the Company or destroy all copies of the Evaluation Material and destroy all Notes. If, after the expiration\nof such period, the Company or Guggenheim requests in writing for any reason, you and your Representatives will, at your option, promptly\nreturn to the Company or destroy all copies of the Evaluation Material and destroy all Notes, in each case without retaining a copy thereof.\nNotwithstanding the foregoing, you and your Representatives shall (i) not be required to destroy electronic copies of the Evaluation Material\nor\nNotes that may be found in your or your Representatives' files in accordance with your or their respective archival or back-up procedures or\nrecord retention policies, and (ii) be permitted to retain a copy of any Evaluation Material to the extent that such retention is as required by law,\nrule, regulation or professional obligations. Notwithstanding the return of the Evaluation Material and destruction of all Notes or the Company's\nor Guggenheim's request for such destruction, you and your Representatives will continue to be bound by your obligations of confidentiality\nand\nother obligations hereunder in accordance with the terms of this Agreement.\n7. You hereby acknowledge that you are aware, and that you will advise your Representatives, that the securities laws of the United States\nprohibit any person who is aware of material non-public information concerning the Company or a possible Transaction involving the Company\nfrom purchasing or selling the Company's securities or from communicating such information to any other person under circumstances in which\nit is reasonably foreseeable that such person is likely to purchase or sell such securities.\n8. Until March 22, 2016, and thereafter as long as the Agreed Evaluation Material is actually provided to you in accordance with the terms of this\nAgreement, you agree that during the Restricted Period (as defined below), you will not, and will cause your Affiliates and Representatives\nacting on your behalf not to, directly or indirectly, without the prior written consent of the Company's Board of Directors or an authorized\ncommittee thereof: (i) engage in, or advise, encourage, or influence any person with respect to, any "solicitation" of "proxies" or "consents" or\nbecome a "participant" in a "solicitation" (as such terms are defined in Regulation 14A under the Exchange Act) of proxies or consents, in each\ncase, with respect to the election or removal of directors the Company; (ii) submit any stockholder proposal (pursuant to Rule 14a-8 promulgated\nby the SEC under the Exchange Act or otherwise) or any notice of nomination or other business for consideration, or nominate any candidate\nfor\nelection\nto\nthe\nBoard\nother\nthan\nas\nexpressly\npermitted\nby\nthis\nAgreement;\n(iii)\nencourage\nany\nperson\nto\nsubmit\nnominations\nin\nfurtherance\nof\na\n"contested solicitation" for the election or removal of directors with respect to the Company; or (iv) seek to call, or to request the calling of,\na\nspecial meeting of the stockholders of the Company; provided that (a) any disclosure or activity expressly permitted pursuant to the terms of this\nAgreement will not be prevented by the foregoing restrictions, (b) you are free to request representation on the Company's Board of Directors\nat\nany time after you have filed an amendment to your Schedule 13D relating to the Company indicating that you are no longer seeking to acquire\ncontrol of the Company (provided you have not thereafter made another filing with the SEC reflecting a change in that intention), and (c) you are\nfree to vote any shares that you own however you wish. For purposes of this Agreement, the "Restricted Period" shall mean the period beginning\non the date hereof and ending on the earlier of (a) January 1, 2017, and (b) the date, if any, (1) that the Company enters into an\nOrchestra-Premaman, S.A.\nMarch 15, 2016\nPage 4\nagreement with any third party providing for any merger, consolidation, business combination, asset sale or other extraordinary transaction that\nwould result in the conversion of more than 50% of the Company's outstanding common equity or the sale of 50% or more of the Company's\nassets, (2) that the Board recommends in favor of, or publicly takes a neutral position with respect to, any tender or exchange offer by any third\nparty for more than 50% of the Company's outstanding equity securities, or (3) on which a majority of the members of the Board as of the date\nhereof cease to be directors of the Company. In addition, notwithstanding any other provision of this Agreement, nothing herein shall prevent\nyou or your Affiliates from acquiring securities of, or entering into business combination with, any person who beneficially owns any securities\nof the Company as long as the purpose of such transaction is not to circumvent the restrictions set forth in this Section\n8.\n9. You agree that (i) the Company and Guggenheim shall be free to conduct a process respecting a possible Transaction as they in their sole\ndiscretion shall determine (including negotiating with any prospective transaction party and entering into definitive agreements without prior\nnotice to you or any other person), (ii) any procedures relating to a possible Transaction may be changed at any time without notice to you or any\nother person, and (iii) the Company shall have the right to reject or accept any potential transaction party, proposal or offer, or to terminate\ndiscussions and negotiations with you, at any time for any reason whatsoever, in its sole discretion.\n10.\nYou further agree that this Agreement only creates obligations between the parties hereto with respect to the matters specifically agreed to\nherein, and further that this Agreement does not obligate the parties hereto or any of their respective Affiliates to negotiate or enter into a\ndefinitive agreement with respect to any Transaction or to consummate any Transaction.\n11. You agree that all (i) communications with the Company or its directors and officers regarding a possible Transaction, (ii) requests for\nadditional information regarding a possible Transaction, (iii) requests for facility tours or management meetings, and (iv) discussions or\nquestions regarding procedures relating to a possible Transaction will be submitted or directed exclusively to Guggenheim; provided, however,\nthat you may make any offer, proposal or request for waiver directly to the Company's Board of Directors and engage in discussions and\nnegotiations with the Company's Board of Directors and its Representatives regarding any such offer, proposal or request.\n12. You agree that, until January 1, 2017, neither you nor any of your Affiliates will, directly or indirectly, without the Company's prior written\nconsent, solicit for employment any employees of the Company or any of its subsidiaries with whom you have had contact or who were\nintroduced to you during the period of your investigation of the Company in an executive or management level position. The preceding sentence\ndoes\nnot, however, prohibit you or your Affiliates from making general solicitations for employment by means of advertisements, public notices,\nrecruiting agencies or internal or external websites or job search engines or, directly or indirectly, hiring any person who (i) responds thereto,\n(ii) contacts you or your Affiliates on their own initiative without prior solicitation by or on behalf of you or your Affiliates, or (iii) ceases to be\nemployed by the Company without prior solicitation by or on behalf of you or your Affiliates.\n13. Neither you nor your Representatives or any other person acting on your behalf will, directly or indirectly, without the prior written consent\nof the Company's Board of Directors or an authorized committee thereof, provide information pertaining to or otherwise engage in any\ndiscussions with any executive officer or director of the Company (i) regarding employment with you, your Affiliates or the Company following\nthe consummation of a Transaction or (ii) regarding compensation, equity awards or other employee benefits that may be offered in connection\nwith the employment of such person by you, your Affiliates or the Company following the consummation of a Transaction.\nOrchestra-Premaman, S.A.\nMarch 15, 2016\nPage 5\n14. Each party hereto agrees that money damages may not be a sufficient remedy for any breach of this Agreement by the other party or\nit\nRepresentatives and that, in addition to all other remedies that may be available to such party, each party shall be entitled to seek specific\nperformance and injunctive or other equitable relief as a remedy for any such breach. If any provision or portion of this Agreement is determined\nby a court of competent jurisdiction to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of this\nAgreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law.\n15. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware. Each party hereto\nhereby irrevocably and unconditionally submits to the exclusive jurisdiction of any State or Federal court sitting in Delaware over any suit,\naction or proceeding arising out of or relating to this Agreement. Each party hereto hereby irrevocably and unconditionally waive any objection\nto the placing of venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding\nbrought in any such court has been brought in an inconvenient forum.\n16. This Agreement may be executed in two or more counterparts, each of which will be deemed to be an original copy of this Agreement, and\nall of which, when taken together, shall be deemed to constitute one and the same agreement. The exchange of copies of this Agreement and\nof\nsignature pages by facsimile transmission or electronic mail in .pdf or similar format shall constitute effective execution and delivery of this\nAgreement as to the parties. For purposes of this Agreement any reference to "written" or "in writing" shall be deemed to include\ncorrespondence by signed letter or facsimile or by e-mail.\n17. During the Restricted Period, (i) the Company agrees to refrain from, and to cause its officers and directors to refrain from, any derogatory or\ndefamatory statements or communications concerning you or any of your officers or directors, and (ii) you agree to refrain from, and to cause\nyour officers and directors to refrain from, any derogatory or defamatory statements or communications concerning the Company or any of its\nofficers or directors.\n18. Unless otherwise provided herein, this Agreement shall terminate on the earlier of (i) the date of entry into of a definitive agreement\nregarding a Transaction with you, and (ii) January 1, 2017.\nIf you are in agreement with the foregoing, please so indicate by signing, dating and returning one copy of this Agreement, which will constitute\nour agreement with respect to the matters set forth herein.\nVery truly yours,\nDestination Maternity Corporation\nBy: /s/ Anthony M. Romano\nAnthony M. Romano\nPresident and Chief Executive Officer\nOrchestra-Premaman S.A.\nMarch 15, 2016\nPage 6\nConfirmed and Agreed to:\nOrchestra-Premaman, S.A.\nBy: /s/ Pierre Mestre\nPierre Mestre, Chairman and President EX-10.1 2 d166304dex101.htm EX-10.1\nExhibit 10.1\nMarch 15, 2016\nCONFIDENTIALITY AGREEMENT\nPierre Mestre\nChairman and President\nOrchestra-Prémaman, S.A.\nZAC Saint-Antoine\n200 avenue des Tamaris\n34130 SAINT AUNES\nFrance\nEmail: pmestre@orchestra-premaman.com\nDear Sirs:\nPRIVATE AND CONFIDENTIAL\nIn connection with Orchestra-Prémaman, S.A.’s (“you” or “your”) proposal of a possible transaction (the “Transaction”) involving Destination\nMaternity Corporation (the “Company”), the Company and its Representatives (as defined below), including Guggenheim Securities, LLC\n(“Guggenheim”), will make available to you certain information which is non-public, confidential or proprietary in nature.\n1. By execution of this letter agreement (the “Agreement”), you agree, subject to the terms and conditions hereof, to treat confidentially any such\ninformation that you or your Representatives are provided by or on behalf of the Company (collectively, the “Evaluation Material”). The term\n“Evaluation Material” shall also include all reports, analyses, notes or other information that are based on, contain or reflect any Evaluation\nMaterial (“Notes”). The term “Evaluation Material” does not include information that (i) is now or becomes generally available to the public\nother than as a result of a disclosure by you or any of your Representatives in violation of this Agreement, (ii) was available to you prior to the\ndisclosure of such Evaluation Material to you pursuant to this Agreement, provided that you do not know or have a reasonable basis to believe\nthat the source of such information is bound by a confidentiality obligation owed to the Company with respect to such information, (iii) becomes\navailable to you on from a source other than the Company or any of its Representatives, provided that you do not know or have a reasonable\nbasis to believe that such source is bound by a confidentiality obligation owed to the Company with respect to such information, or (iv) is or was\nindependently developed by you or any of your Representatives without use of or reference to the Evaluation Material. In addition, the term\n“Evaluation Material” does not include the fact that discussions or negotiations with the Company and its Representatives are or were taking\nplace concerning a possible Transaction, that you have received Evaluation Material (without disclosing the nature or content of such Evaluation\nMaterial) or that you are evaluating a possible Transaction. The term “Representative” means, as to any person, such person’s Affiliates (as\ndefined below) and its and their respective directors, officers, employees, attorneys, accountants, bankers, financial sources, agents,\nrepresentatives and advisors. As used herein, the term “Affiliate” shall have the meaning set forth in Rule 12b-2 promulgated by the Securities\nand Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Company agrees\nthat, as promptly as practicable, it will (i) provide you with the Evaluation Material set forth on Annex A hereto (the\nOrchestra-Prémaman, S.A.\nMarch 15, 2016\nPage 2\n“Agreed Evaluation Material”), and (ii) use reasonable best efforts (including by providing reasonable access during normal business hours to the\nexecutive officers of the Company, provided that such access shall not disrupt the operations of the Company) to provide you with such\nadditional documents and information as you may reasonably request.\n2. You agree that, except as otherwise set forth in this Agreement, you will not use the Evaluation Material for any purpose other than evaluating,\nnegotiating, documenting, pursuing or consummating a possible Transaction (whether in a negotiated transaction or otherwise). You agree not to\ndisclose any Evaluation Material to any person, except that you may disclose Evaluation Material to your Representatives (who will be informed\nby you of the confidential nature of the Evaluation Material and will agree to be bound by the terms of this Agreement that are applicable to your\nRepresentatives) who are participating in your evaluation, negotiation, documentation, pursuit or consummation of a possible Transaction\n(whether in a negotiated transaction or otherwise) or who otherwise have a reasonable need to review the Evaluation Material for the purpose of\nevaluating, negotiating, documenting, pursuing or consummating a possible Transaction (whether in a negotiated transaction or otherwise). You\nagree (a) to undertake commercially reasonable precautions, consistent with the precautions you take to safeguard your own confidential and\nsensitive information, to safeguard and protect the confidentiality of the Evaluation Material and (b) not to authorize or direct your\nRepresentatives to make any disclosure or use of the Evaluation Material in violation of this Agreement. You shall be responsible for any breach\nby your Representatives of the terms of this Agreement that are applicable to your Representatives. Notwithstanding anything to the contrary in\nthis Agreement, so long as no Evaluation Material is revealed thereby, you may publicly disclose any price you are prepared to offer, any\ntransaction structure you are proposing to use and the results of any regulatory (including antitrust) analysis relating to the Transaction.\n3. You agree that, without the consent of the Company, you and your Representatives will not disclose information regarding specific discussions\nor negotiations that have taken place concerning a possible Transaction or any of the specific terms or conditions that have been discussed,\nexcept to the extent you are advised by your counsel that you are required to do so under applicable law, rule, or regulation. Notwithstanding\nanything to the contrary in this Agreement, you may publicly disclose any letter or other communication from you or your Representatives to the\nCompany’s Board of Directors regarding any offer or proposal in respect of a Transaction as long as such letter does not disclose Evaluation\nMaterial. The Company acknowledges and agrees that you will amend your Schedule 13D to reflect that the parties have entered into this\nAgreement (and that this Agreement itself will be disclosed) and that the parties intend to explore a possible Transaction. The Company further\nagrees that the obligations set forth in Section 5 hereof do not apply to any disclosure made pursuant to Section 2 or this Section 3.\n4. You understand and agree that neither the Company nor any of its Representatives have made or make any representation or warranty,\nexpressed or implied, as to the accuracy or completeness of the Evaluation Material or shall have any liability whatsoever to you or any of your\nRepresentatives relating to or resulting from the use or content of the Evaluation Material. You further understand and agree that, except as\notherwise provided in the last sentence of Section 1 hereof, neither the Company nor any of its Representatives is under any obligation to make\nany particular information available to you or to supplement or update any Evaluation Material previously provided.\n5. If you or any of your Representatives are requested or required to disclose any Evaluation Material pursuant to any applicable law, the\nrequirements of any regulatory authority or stock exchange listing rules, or in connection with any legal process or proceeding, you will, to the\nextent legally permitted, give the Company prompt written notice of such request or requirement and reasonably cooperate with the Company for\nit to seek\nOrchestra-Prémaman, S.A.\nMarch 15, 2016\nPage 3\na protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained, you or your\nRepresentatives will disclose only that portion of the Evaluation Material which, upon the written advice of your counsel and, to the extent\nlegally permitted, after notifying the Company, is legally required to be disclosed. Notwithstanding the foregoing, you will not be permitted to\ndisclose any Evaluation Material if the applicable law, requirements of any regulatory authority or stock exchange listing rules require such\ndisclosure by virtue of the fact that you have made or intend to make a transaction proposal or offer involving the Company or to solicit support\nfor any such proposal or offer from the Company’s stockholders.\n6. Prior to the expiration of a period of 60 days following the date hereof, neither the Company nor any of its Representatives may request that\nyou and your Representatives return to the Company or destroy all copies of the Evaluation Material and destroy all Notes. If, after the expiration\nof such period, the Company or Guggenheim requests in writing for any reason, you and your Representatives will, at your option, promptly\nreturn to the Company or destroy all copies of the Evaluation Material and destroy all Notes, in each case without retaining a copy thereof.\nNotwithstanding the foregoing, you and your Representatives shall (i) not be required to destroy electronic copies of the Evaluation Material or\nNotes that may be found in your or your Representatives’ files in accordance with your or their respective archival or back-up procedures or\nrecord retention policies, and (ii) be permitted to retain a copy of any Evaluation Material to the extent that such retention is as required by law,\nrule, regulation or professional obligations. Notwithstanding the return of the Evaluation Material and destruction of all Notes or the Company’s\nor Guggenheim’s request for such destruction, you and your Representatives will continue to be bound by your obligations of confidentiality and\nother obligations hereunder in accordance with the terms of this Agreement.\n7. You hereby acknowledge that you are aware, and that you will advise your Representatives, that the securities laws of the United States\nprohibit any person who is aware of material non-public information concerning the Company or a possible Transaction involving the Company\nfrom purchasing or selling the Company’s securities or from communicating such information to any other person under circumstances in which\nit is reasonably foreseeable that such person is likely to purchase or sell such securities.\n8. Until March 22, 2016, and thereafter as long as the Agreed Evaluation Material is actually provided to you in accordance with the terms of this\nAgreement, you agree that during the Restricted Period (as defined below), you will not, and will cause your Affiliates and Representatives\nacting on your behalf not to, directly or indirectly, without the prior written consent of the Company’s Board of Directors or an authorized\ncommittee thereof: (i) engage in, or advise, encourage, or influence any person with respect to, any “solicitation” of “proxies” or “consents” or\nbecome a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) of proxies or consents, in each\ncase, with respect to the election or removal of directors the Company; (ii) submit any stockholder proposal (pursuant to Rule 14a-8 promulgated\nby the SEC under the Exchange Act or otherwise) or any notice of nomination or other business for consideration, or nominate any candidate for\nelection to the Board other than as expressly permitted by this Agreement; (iii) encourage any person to submit nominations in furtherance of a\n“contested solicitation” for the election or removal of directors with respect to the Company; or (iv) seek to call, or to request the calling of, a\nspecial meeting of the stockholders of the Company; provided that (a) any disclosure or activity expressly permitted pursuant to the terms of this\nAgreement will not be prevented by the foregoing restrictions, (b) you are free to request representation on the Company’s Board of Directors at\nany time after you have filed an amendment to your Schedule 13D relating to the Company indicating that you are no longer seeking to acquire\ncontrol of the Company (provided you have not thereafter made another filing with the SEC reflecting a change in that intention), and (c) you are\nfree to vote any shares that you own however you wish. For purposes of this Agreement, the “Restricted Period” shall mean the period beginning\non the date hereof and ending on the earlier of (a) January 1, 2017, and (b) the date, if any, (1) that the Company enters into an\nOrchestra-Prémaman, S.A.\nMarch 15, 2016\nPage 4\nagreement with any third party providing for any merger, consolidation, business combination, asset sale or other extraordinary transaction that\nwould result in the conversion of more than 50% of the Company’s outstanding common equity or the sale of 50% or more of the Company’s\nassets, (2) that the Board recommends in favor of, or publicly takes a neutral position with respect to, any tender or exchange offer by any third\nparty for more than 50% of the Company’s outstanding equity securities, or (3) on which a majority of the members of the Board as of the date\nhereof cease to be directors of the Company. In addition, notwithstanding any other provision of this Agreement, nothing herein shall prevent\nyou or your Affiliates from acquiring securities of, or entering into business combination with, any person who beneficially owns any securities\nof the Company as long as the purpose of such transaction is not to circumvent the restrictions set forth in this Section 8.\n9. You agree that (i) the Company and Guggenheim shall be free to conduct a process respecting a possible Transaction as they in their sole\ndiscretion shall determine (including negotiating with any prospective transaction party and entering into definitive agreements without prior\nnotice to you or any other person), (ii) any procedures relating to a possible Transaction may be changed at any time without notice to you or any\nother person, and (iii) the Company shall have the right to reject or accept any potential transaction party, proposal or offer, or to terminate\ndiscussions and negotiations with you, at any time for any reason whatsoever, in its sole discretion.\n10. You further agree that this Agreement only creates obligations between the parties hereto with respect to the matters specifically agreed to\nherein, and further that this Agreement does not obligate the parties hereto or any of their respective Affiliates to negotiate or enter into a\ndefinitive agreement with respect to any Transaction or to consummate any Transaction.\n11. You agree that all (i) communications with the Company or its directors and officers regarding a possible Transaction, (ii) requests for\nadditional information regarding a possible Transaction, (iii) requests for facility tours or management meetings, and (iv) discussions or\nquestions regarding procedures relating to a possible Transaction will be submitted or directed exclusively to Guggenheim; provided, however,\nthat you may make any offer, proposal or request for waiver directly to the Company’s Board of Directors and engage in discussions and\nnegotiations with the Company’s Board of Directors and its Representatives regarding any such offer, proposal or request.\n12. You agree that, until January 1, 2017, neither you nor any of your Affiliates will, directly or indirectly, without the Company’s prior written\nconsent, solicit for employment any employees of the Company or any of its subsidiaries with whom you have had contact or who were\nintroduced to you during the period of your investigation of the Company in an executive or management level position. The preceding sentence\ndoes not, however, prohibit you or your Affiliates from making general solicitations for employment by means of advertisements, public notices,\nrecruiting agencies or internal or external websites or job search engines or, directly or indirectly, hiring any person who (i) responds thereto,\n(ii) contacts you or your Affiliates on their own initiative without prior solicitation by or on behalf of you or your Affiliates, or (iii) ceases to be\nemployed by the Company without prior solicitation by or on behalf of you or your Affiliates.\n13. Neither you nor your Representatives or any other person acting on your behalf will, directly or indirectly, without the prior written consent\nof the Company’s Board of Directors or an authorized committee thereof, provide information pertaining to or otherwise engage in any\ndiscussions with any executive officer or director of the Company (i) regarding employment with you, your Affiliates or the Company following\nthe consummation of a Transaction or (ii) regarding compensation, equity awards or other employee benefits that may be offered in connection\nwith the employment of such person by you, your Affiliates or the Company following the consummation of a Transaction.\nOrchestra-Prémaman, S.A.\nMarch 15, 2016\nPage 5\n14. Each party hereto agrees that money damages may not be a sufficient remedy for any breach of this Agreement by the other party or it\nRepresentatives and that, in addition to all other remedies that may be available to such party, each party shall be entitled to seek specific\nperformance and injunctive or other equitable relief as a remedy for any such breach. If any provision or portion of this Agreement is determined\nby a court of competent jurisdiction to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of this\nAgreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law.\n15. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware. Each party hereto\nhereby irrevocably and unconditionally submits to the exclusive jurisdiction of any State or Federal court sitting in Delaware over any suit,\naction or proceeding arising out of or relating to this Agreement. Each party hereto hereby irrevocably and unconditionally waive any objection\nto the placing of venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding\nbrought in any such court has been brought in an inconvenient forum.\n16. This Agreement may be executed in two or more counterparts, each of which will be deemed to be an original copy of this Agreement, and\nall of which, when taken together, shall be deemed to constitute one and the same agreement. The exchange of copies of this Agreement and of\nsignature pages by facsimile transmission or electronic mail in .pdf or similar format shall constitute effective execution and delivery of this\nAgreement as to the parties. For purposes of this Agreement any reference to “written” or “in writing” shall be deemed to include\ncorrespondence by signed letter or facsimile or by e-mail.\n17. During the Restricted Period, (i) the Company agrees to refrain from, and to cause its officers and directors to refrain from, any derogatory or\ndefamatory statements or communications concerning you or any of your officers or directors, and (ii) you agree to refrain from, and to cause\nyour officers and directors to refrain from, any derogatory or defamatory statements or communications concerning the Company or any of its\nofficers or directors.\n18. Unless otherwise provided herein, this Agreement shall terminate on the earlier of (i) the date of entry into of a definitive agreement\nregarding a Transaction with you, and (ii) January 1, 2017.\nIf you are in agreement with the foregoing, please so indicate by signing, dating and returning one copy of this Agreement, which will constitute\nour agreement with respect to the matters set forth herein.\nVery truly yours,\nDestination Maternity Corporation\nBy: /s/ Anthony M. Romano\nAnthony M. Romano\nPresident and Chief Executive Officer\nOrchestra-Prémaman, S.A.\nMarch 15, 2016\nPage 6\nConfirmed and Agreed to:\nOrchestra-Prémaman, S.A.\nBy: /s/ Pierre Mestre\nPierre Mestre, Chairman and President b588849d6c371972f08a83b280c7d9b2.pdf effective_date jurisdiction party term EX-10 2 c98802exv10.htm AGREEMENT\nExhibit 10\nAGREEMENT\nTHIS AGREEMENT (“Agreement”) is made as of the 29th day of September, 2005, by and between Paul B. Mulhollem (“Mulhollem”) and\nArcher-Daniels-Midland Company, a Delaware corporation (“ADM”).\nWITNESSETH:\nWHEREAS, Mulhollem has been employed by ADM in the capacity of President and Chief Operating Officer; and\nWHEREAS, Mulhollem and ADM desire to effect an amicable separation of employment, without litigation or controversy, in light of\nMulhollem’s September 15, 2005 retirement from ADM.\nNOW, THEREFORE, in consideration of the promises and mutual covenants contained herein, it is agreed as follows:\n1. Upon his retirement, Mulhollem became entitled to certain benefits as set forth in this paragraph 1. These benefits are subject to Mulhollem\nremaining retired (within the meaning of the ADM Retirement Plan as in effect on the date hereof) and may be forfeited if he ceases to be retired\n(other than with respect to his consultation and cooperation obligations to ADM set forth herein), and are composed of the following:\na. The restricted stock granted to Mulhollem in the Restricted Stock Award Agreements dated August 8, 2005 and August 19, 2004 will\ncontinue to vest according to the terms of those agreements. Mulhollem’s separation from ADM shall conclusively be deemed to be\npursuant to “Retirement,” as such term is used in the various stock award and stock option agreements which Mulhollem participates in.\nMulhollem is entitled to exercise all vested stock options according to the terms of the applicable stock option agreements between him and\nADM;\nb. Mulhollem is permitted to roll over all amounts in his 401(k)/ESOP account into a self directed IRA;\nc. Mulhollem will receive all salary he has previously deferred pursuant to the ADM Deferred Compensation Plan(s) in accordance with\nthe terms of such plan(s); and\nd. Mulhollem is permitted to participate in any retiree benefit programs for which he is eligible.\n2. Non-competition, etc.\na. As ADM’s President and Chief Operating Officer (“COO”), Mulhollem had direct access to and personal knowledge of ADM’s most\nimportant proprietary business information including, but not limited to, business plans and strategies, financial information, trading and\nhedging strategies, and operational methods, plans and strategies. This information is proprietary to ADM and subject to reasonable efforts\nby ADM to secure its confidentiality. This proprietary information has significant value to ADM as it provides ADM with a strategic\nadvantage over it competitors. Were this information provided to ADM’s competitors, ADM would be irreparably harmed. ADM and\nMulhollem agree that if Mulhollem were to work for one of ADM’s competitors within the next three years, he would be unable to perform\nhis duties without disclosing ADM’s confidential and proprietary business information.\nb. Consequently, without the prior written consent of ADM, which consent must be signed by the Chief Executive or President of ADM\nuntil September 15, 2008, Mulhollem shall not own any interest in, except the\n2\nownership of stock in a publicly-traded company, take any employment with, or act as a director, officer, agent, consultant, advisor,\nindependent contractor or in any other capacity whatsoever, directly or indirectly, with or to any person, corporation, partnership, limited\nliability company, firm, joint venture or any other form of entity, anywhere in the world, that competes with ADM or any of its subsidiaries\nor affiliates or provides the same goods or services as ADM or any of its subsidiaries or affiliates.\nc. Mulhollem acknowledges that, in light of his responsibilities while employed as ADM’s President and COO, the scope of these post-\nemployment restrictions is reasonable and that if he were to come out of retirement, he would have ample job opportunities based upon his\nexperience and education. Mulhollem further acknowledges that a violation of this paragraph 2 would cause irreparable damage to ADM\nand that in the event of a breach or threatened breach, hereof, ADM would be entitled to injunctive relief, without the posting of any bond,\nin addition to such other relief as may be appropriate at law or in equity.\nd. For the period from the Effective Date of this Agreement through September 15, 2008, Mulhollem shall not hire or solicit for\nemployment any employee on the payroll of ADM or any of its subsidiaries or affiliates.\n3. The Non-Disclosure Agreement between ADM and Mulhollem dated January 6, 1992, a copy of which is marked Exhibit A, attached\nhereto and by this reference incorporated herein, shall remain in full force and effect in accordance with its terms.\n4. In consideration of the post-employment restrictions placed on Mulhollem in this Agreement and the continuing application of the Non-\nDisclosure Agreement, ADM shall\n3\nprovide Mulhollem the following valuable consideration to which he would not otherwise have been entitled:\na. ADM shall pay Mulhollem the cash value of the restricted stock granted to him under the terms of the October 14, 2003 Restricted Stock\nAward Agreement as provided for herein. The amount shall be determined by multiplying the number of shares of restricted stock by\n$23.16, the closing price for ADM’s Common Stock on September 15, 2005. Payments shall be made as follows:\ni.25% of the amount on the Effective Date of this Agreement;\nii.25% of the amount on September 15, 2006, provided Mulhollem has fully complied with paragraphs 2 and 3 of this Agreement;\niii.25% of the amount on September 15, 2007, provided Mulhollem has fully complied with paragraphs 2 and 3 of this Agreement; and\niv.25% of the amount on September 15, 2008, provided Mulhollem has fully complied with paragraphs 2 and 3 of this Agreement.\nb. ADM shall retain Mulhollem as a consultant for a three-year period from September 15, 2005 expiring September 15, 2008. Mulhollem\nshall perform such reasonable duties as he may be requested to perform by ADM’s Chief Executive. ADM shall compensate Mulhollem by\npaying him $550,000 per year (payable monthly in arrears) for his consulting services provided Mulhollem has fully complied with\nparagraphs 2 and 3 of this Agreement.\n4\n5. Release\na. Mulhollem hereby forever releases ADM, and its subsidiaries and affiliates and each of ADM’s and its subsidiaries’ and affilicates’\nofficers, directors, representatives, shareholders, agents, employees, predecessors, successors and assigns (collectively “Releasees”), from\nany and all complaints, charges, claims, liabilities, demands, debts, accounts, obligations, promises, suits, actions, causes of action,\ndemands in law or equity, including claims for damages, attorneys’ fees or costs, whether known or unknown, which Mulhollem now has,\nor claims to have, or which Mulhollem at any time may have had, or claimed to have, or which Mulhollem at any time hereafter may have,\nor claim to have, arising at any time in the past to and including the date of this Agreement, including, but without limiting the generality of\nthe foregoing, any matters relating in any way to Mulhollem’s employment relationship with ADM or his retirement from ADM.\nb. The claims, rights and obligations that Mulhollem is hereby releasing include, but are not limited to:\ni. those for breach of contract, breach of implied contract, breach of implied covenant of good faith and fair dealing, wrongful discharge,\nretaliatory discharge, constructive discharge, and any other common law or statutory claims now or hereafter recognized;\nii. those for discrimination (including but not limited to claims for discrimination, harassment or retaliation on account of gender, age,\nhandicap, medical condition or disability, national origin, race, color, religion, sexual preference, or veteran status) which Mulhollem\nmight\n5\nhave or might have had under the Age Discrimination in Employment Act, Title VII of the 1964 Civil Rights Act, the Civil Rights Act\nof 1866, the Americans with Disabilities Act, the Family and Medical Leave Act, the Rehabilitation Act of 1973, the Illinois\nConstitution, the Illinois Human Rights Act, the Illinois Wage Payment and Calculation Act, the Illinois Minimum Wage Law, and any\nother federal, state or local laws, statutes, orders, regulations or enactments of any type. By signing this Agreement, Mulhollem agrees to\ngive up, or waive, any rights or claims which he may have had under the Age Discrimination in Employment Act of 1967, 29 U.S .C.\n§621 et. seq., the Older Worker Benefit Protection Act, or any other statutes or other laws, which are based on the actions of any of the\nReleasees that occurred up through the date that Mulhollem signs this Agreement; and,\niii. Any and all claims for attorneys’ fees and costs.\nc. Mulhollem further acknowledges and agrees that this Agreement shall operate as a complete bar to recovery in any and all litigation,\ncharges, complaints, grievances or demands of any kind whatsoever now pending or now contemplated by Mulhollem or which might at\nany time be filed by Mulhollem related to his employment with ADM and his retirement from ADM. Each and all of the said claims are\nhereby fully and finally settled, compromised and released.\nd. Nothing in this paragraph 5 is intended to operate as a release, waiver or forfeiture of Mulhollem’s rights, and ADM’s obligations, under\n(i) this Agreement, (ii) any 401(k), ESOP or other retirement plan which Mulhollem\n6\nparticipates in as of the date hereof, and (iii) any indemnification or similar right relating to actual or alleged acts or omissions by\nMulhollem in his office capacity as an officer of ADM prior to the date hereof.\n6. In consideration for the Release in paragraph 5, and Mulhollem’s other covenants herein, ADM shall:\na. pay Mulhollem, on the Effective Date of this Agreement, an amount equal to the aggregate difference between the option price and\n$23.16, the closing share price of ADM common stock on September 15, 2005 for all of Mulhollem’s unvested stock options as of the date\nhereof.;\nb. transfer to Mulhollem unencumbered title to Mulhollem’s company car on or before December 31, 2005; and\nc. provide Mulhollem with coverage under ADM’s retiree medical plan.\n7. Upon ADM’s request, Mulhollem shall provide his reasonable cooperation relative to any matter which arises within Mulhollem’s former\narea(s) of responsibility with ADM which is based upon facts occurring or circumstances existing prior to the date hereof. ADM shall reimburse\nMulhollem for any out-of-pocket expenses reasonably incurred by Mulhollem providing any such requested cooperation upon presentation of\nappropriate supporting documentation.\n8. Mulhollem expressly acknowledges that:\na. He was provided with a copy of this Agreement and was advised in writing to consult with an attorney concerning its meaning and\neffect.\nb. He was provided twenty-one (21) days to consider whether to enter into this Agreement. Subsequently, Mulhollem retained the law firm\nof Meyer Capel to advise him with respect to this Agreement.\n7\nc. He understands he may revoke this Agreement in writing addressed and delivered to ADM, c/o the General Counsel’s office, within\nseven (7) days after the execution of this Agreement in which event this Agreement will be of no force and effect and he will be entitled to\nno payments or benefits that were to be paid pursuant to this Agreement. Unless revoked in accordance with this section 8(c), this\nAgreement shall be effective on the 8th day following the date of delivery of an executed copy of this Agreement to ADM (the “Effective\nDate”).\nd. He was given an adequate opportunity to consider this Agreement and he has read and understands the meaning and effect of this\nAgreement.\ne. He voluntarily agreed to the terms of the Agreement, which terms were determined through negotiation, and he intends to be legally\nbound by the same.\nf. The consideration provided herein is sufficient and is consideration to which he is not otherwise entitled to receive.\n9. Mulhollem agrees that the terms and conditions of this Agreement and the payments made pursuant hereto shall remain confidential and\nthat he will not disclose the same to any person, except his immediate family, his legal and financial advisors, or as required by law. Mulhollem\nacknowledges that ADM may be required to publicly disclose this Agreement and its terms in filings with the United States Securities and\nExchange Commission.\n10. In the event of a breach by Mulhollem of the provisions of paragraphs 2 or 3 of this agreement, ADM shall be released from the\nobligations to make any further payments\n8\npursuant to paragraph 4 in addition to pursuing any other available remedy in law or equity, including without limitation specific performance\nand injunctive relief.\n11. Mulhollem shall not request or apply for employment with ADM or any of its subsidiaries.\n12. This Agreement shall be governed by the laws of the State of Illinois.\n13. Mulhollem agrees that he will not take any action, or make any statement, whether orally or in writing, which manifestly and\ndemonstrably disparages or impugns the reputation or goodwill of ADM, its subsidiaries, affiliates or any of their officers, directors or\nemployees. Mulhollem will not interfere with the relationships between ADM, its subsidiaries or affiliates and any of their customers, suppliers,\nvendors, distributors or representatives. Moreover, Mulhollem further agrees that he shall make no public statements, or request, cause or solicit\nany third-party to make any public statements, including without limitation to the media, regarding the circumstances of his retirement.\n14. The parties agree that the provisions in paragraphs 2, 3 and 5 are a critical and non-severable part of this Agreement. By executing this\nAgreement, the parties state that they have read the aforementioned paragraphs and after consulting counsel of their choice agree that they are\nreasonable and protect the parties’ interests. As such, the parties specifically agree that if Mulhollem seeks to invalidate or limit the scope of any\nof these provisions for any reason, this Agreement shall have no force or effect. If Mulhollem brings any action seeking to invalidate or limit the\nscope of paragraphs 2 or 3, Mulhollem shall return to ADM all considerations paid to him pursuant to paragraph 4 of this Agreement and\nMulhollem shall have no entitlement to any future payments or benefits provided pursuant to paragraph 4 of this Agreement.\n9\n15. Mulhollem shall not be in breach of this Agreement or any obligation unless and until written notice of such breach is given to Mulhollem\nand Mulhollem is afforded a reasonable opportunity to cure such breach. Such notice shall be delivered via registered mail, return receipt\nrequested, and shall describe in detail (i) the acts or omissions which ADM believes constitute such breach, and (ii) the steps, acts or omissions\nwhich must be taken by Mulhollem to correct and cure any such breach. ADM shall not be allowed to terminate this Agreement or cease\nperformance hereunder if Mulhollem is able to cure any breach within thirty (30) days following delivery of a notice of breach.\n16. This Agreement constitutes the entire agreement of the parties and supersedes any and all prior agreements and understandings between\nMulhollem and ADM, whether oral or in writing. This Agreement may not be revoked, amended, modified or revised except by a writing\nexecuted by Mulhollem and the Chief Executive or President of ADM.\n17. In the event of litigation in connection with the interpretation or enforcement of this Agreement, the prevailing party in such action shall\nbe entitled to reimbursement from the other party, in addition to any other relief awarded, all costs and fees paid or incurred by the prevailing\nparty in such action, including, without limitation, reasonable attorneys’ fees and costs.\n18. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns.\n(signature page follows)\n10\nIN WITNESS WHEREOF, the parties have executed this Agreement on the date first above written.\n/s/ Paul B. Mulhollem\nPAUL B. MULHOLLEM\nDated: September 29, 2005\n/s/ Stuart E. Funderburg\nWITNESS\nARCHER-DANIELS-MIDLAND COMPANY\nBy: /s/ Douglas J. Schmalz\nDouglas J. Schmalz\nIts: Senior Vice President and Chief Financial\nOfficer\nDated: September 29, 2005\n11 EX-10 2 c98802exv10.htm AGREEMENT\nExhibit 10\nAGREEMENT\nTHIS AGREEMENT (“Agreement”) is made as of the 29th day of September, 2005, by and between Paul B. Mulhollem (“Mulhollem”) and\nArcher-Daniels-Midland Company, a Delaware corporation (“ADM?”).\nWITNESSETH:\nWHEREAS, Mulhollem has been employed by ADM in the capacity of President and Chief Operating Officer; and\nWHEREAS, Mulhollem and ADM desire to effect an amicable separation of employment, without litigation or controversy, in light of\nMulhollem’s September 15, 2005 retirement from ADM.\nNOW, THEREFORE, in consideration of the promises and mutual covenants contained herein, it is agreed as follows:\n1. Upon his retirement, Mulhollem became entitled to certain benefits as set forth in this paragraph 1. These benefits are subject to Mulhollem\nremaining retired (within the meaning of the ADM Retirement Plan as in effect on the date hereof) and may be forfeited if he ceases to be retired\n(other than with respect to his consultation and cooperation obligations to ADM set forth herein), and are composed of the following:\na. The restricted stock granted to Mulhollem in the Restricted Stock Award Agreements dated August 8, 2005 and August 19, 2004 will\ncontinue to vest according to the terms of those agreements. Mulhollem’s separation from ADM shall conclusively be deemed to be\npursuant to “Retirement,” as such term is used in the various stock award and stock option agreements which Mulhollem participates in.\nMulhollem is entitled to exercise all vested stock options according to the terms of the applicable stock option agreements between him and\nADM;\nb. Mulhollem is permitted to roll over all amounts in his 401(k)/ESOP account into a self directed IRA;\nc. Mulhollem will receive all salary he has previously deferred pursuant to the ADM Deferred Compensation Plan(s) in accordance with\nthe terms of such plan(s); and\nd. Mulhollem is permitted to participate in any retiree benefit programs for which he is eligible.\n2. Non-competition, etc.\na. As ADM’s President and Chief Operating Officer (“COO”), Mulhollem had direct access to and personal knowledge of ADM’s most\nimportant proprietary business information including, but not limited to, business plans and strategies, financial information, trading and\nhedging strategies, and operational methods, plans and strategies. This information is proprietary to ADM and subject to reasonable efforts\nby ADM to secure its confidentiality. This proprietary information has significant value to ADM as it provides ADM with a strategic\nadvantage over it competitors. Were this information provided to ADM’s competitors, ADM would be irreparably harmed. ADM and\nMulhollem agree that if Mulhollem were to work for one of ADM’s competitors within the next three years, he would be unable to perform\nhis duties without disclosing ADM’s confidential and proprietary business information.\nb. Consequently, without the prior written consent of ADM, which consent must be signed by the Chief Executive or President of ADM\nuntil September 15, 2008, Mulhollem shall not own any interest in, except the\n2\nownership of stock in a publicly-traded company, take any employment with, or act as a director, officer, agent, consultant, advisor,\nindependent contractor or in any other capacity whatsoever, directly or indirectly, with or to any person, corporation, partnership, limited\nliability company, firm, joint venture or any other form of entity, anywhere in the world, that competes with ADM or any of its subsidiaries\nor affiliates or provides the same goods or services as ADM or any of its subsidiaries or affiliates.\nc. Mulhollem acknowledges that, in light of his responsibilities while employed as ADM’s President and COO, the scope of these post-\nemployment restrictions is reasonable and that if he were to come out of retirement, he would have ample job opportunities based upon his\nexperience and education. Mulhollem further acknowledges that a violation of this paragraph 2 would cause irreparable damage to ADM\nand that in the event of a breach or threatened breach, hereof, ADM would be entitled to injunctive relief, without the posting of any bond,\nin addition to such other relief as may be appropriate at law or in equity.\nd. For the period from the Effective Date of this Agreement through September 15, 2008, Mulhollem shall not hire or solicit for\nemployment any employee on the payroll of ADM or any of its subsidiaries or affiliates.\n3. The Non-Disclosure Agreement between ADM and Mulhollem dated January 6, 1992, a copy of which is marked Exhibit A, attached\nhereto and by this reference incorporated herein, shall remain in full force and effect in accordance with its terms.\n4. In consideration of the post-employment restrictions placed on Mulhollem in this Agreement and the continuing application of the Non-\nDisclosure Agreement, ADM shall\nprovide Mulhollem the following valuable consideration to which he would not otherwise have been entitled:\na. ADM shall pay Mulhollem the cash value of the restricted stock granted to him under the terms of the October 14, 2003 Restricted Stock\nAward Agreement as provided for herein. The amount shall be determined by multiplying the number of shares of restricted stock by\n$23.16, the closing price for ADM’s Common Stock on September 15, 2005. Payments shall be made as follows:\ni.25% of the amount on the Effective Date of this Agreement;\nii.25% of the amount on September 15, 2006, provided Mulhollem has fully complied with paragraphs 2 and 3 of this Agreement;\niii.25% of the amount on September 15, 2007, provided Mulhollem has fully complied with paragraphs 2 and 3 of this Agreement; and\niv.25% of the amount on September 15, 2008, provided Mulhollem has fully complied with paragraphs 2 and 3 of this Agreement.\nb. ADM shall retain Mulhollem as a consultant for a three-year period from September 15, 2005 expiring September 15, 2008. Mulhollem\nshall perform such reasonable duties as he may be requested to perform by ADM’s Chief Executive. ADM shall compensate Mulhollem by\npaying him $550,000 per year (payable monthly in arrears) for his consulting services provided Mulhollem has fully complied with\nparagraphs 2 and 3 of this Agreement.\n5. Release\na. Mulhollem hereby forever releases ADM, and its subsidiaries and affiliates and each of ADM’s and its subsidiaries’ and affilicates’\nofficers, directors, representatives, shareholders, agents, employees, predecessors, successors and assigns (collectively “Releasees”), from\nany and all complaints, charges, claims, liabilities, demands, debts, accounts, obligations, promises, suits, actions, causes of action,\ndemands in law or equity, including claims for damages, attorneys’ fees or costs, whether known or unknown, which Mulhollem now has,\nor claims to have, or which Mulhollem at any time may have had, or claimed to have, or which Mulhollem at any time hereafter may have,\nor claim to have, arising at any time in the past to and including the date of this Agreement, including, but without limiting the generality of\nthe foregoing, any matters relating in any way to Mulhollem’s employment relationship with ADM or his retirement from ADM.\nb. The claims, rights and obligations that Mulhollem is hereby releasing include, but are not limited to:\ni. those for breach of contract, breach of implied contract, breach of implied covenant of good faith and fair dealing, wrongful discharge,\nretaliatory discharge, constructive discharge, and any other common law or statutory claims now or hereafter recognized;\nii. those for discrimination (including but not limited to claims for discrimination, harassment or retaliation on account of gender, age,\nhandicap, medical condition or disability, national origin, race, color, religion, sexual preference, or veteran status) which Mulhollem\nmight\nhave or might have had under the Age Discrimination in Employment Act, Title VII of the 1964 Civil Rights Act, the Civil Rights Act\nof 1866, the Americans with Disabilities Act, the Family and Medical Leave Act, the Rehabilitation Act of 1973, the Illinois\nConstitution, the Illinois Human Rights Act, the Illinois Wage Payment and Calculation Act, the Illinois Minimum Wage Law, and any\nother federal, state or local laws, statutes, orders, regulations or enactments of any type. By signing this Agreement, Mulhollem agrees to\ngive up, or waive, any rights or claims which he may have had under the Age Discrimination in Employment Act of 1967, 29 U.S.C.\n§621 et. seq., the Older Worker Benefit Protection Act, or any other statutes or other laws, which are based on the actions of any of the\nReleasees that occurred up through the date that Mulhollem signs this Agreement; and,\niii. Any and all claims for attorneys’ fees and costs.\nc. Mulhollem further acknowledges and agrees that this Agreement shall operate as a complete bar to recovery in any and all litigation,\ncharges, complaints, grievances or demands of any kind whatsoever now pending or now contemplated by Mulhollem or which might at\nany time be filed by Mulhollem related to his employment with ADM and his retirement from ADM. Each and all of the said claims are\nhereby fully and finally settled, compromised and released.\nd. Nothing in this paragraph 5 is intended to operate as a release, waiver or forfeiture of Mulhollem’s rights, and ADM’s obligations, under\n(i) this Agreement, (ii) any 401(k), ESOP or other retirement plan which Mulhollem\n6\nparticipates in as of the date hereof, and (iii) any indemnification or similar right relating to actual or alleged acts or omissions by\nMulhollem in his office capacity as an officer of ADM prior to the date hereof.\n6. In consideration for the Release in paragraph 5, and Mulhollem’s other covenants herein, ADM shall:\na. pay Mulhollem, on the Effective Date of this Agreement, an amount equal to the aggregate difference between the option price and\n$23.16, the closing share price of ADM common stock on September 15, 2005 for all of Mulhollem’s unvested stock options as of the date\nhereof.;\nb. transfer to Mulhollem unencumbered title to Mulhollem’s company car on or before December 31, 2005; and\nc. provide Mulhollem with coverage under ADM’s retiree medical plan.\n7. Upon ADM’s request, Mulhollem shall provide his reasonable cooperation relative to any matter which arises within Mulhollem’s former\narea(s) of responsibility with ADM which is based upon facts occurring or circumstances existing prior to the date hereof. ADM shall reimburse\nMulhollem for any out-of-pocket expenses reasonably incurred by Mulhollem providing any such requested cooperation upon presentation of\nappropriate supporting documentation.\n8. Mulhollem expressly acknowledges that:\na. He was provided with a copy of this Agreement and was advised in writing to consult with an attorney concerning its meaning and\neffect.\nb. He was provided twenty-one (21) days to consider whether to enter into this Agreement. Subsequently, Mulhollem retained the law firm\nof Meyer Capel to advise him with respect to this Agreement.\nc. He understands he may revoke this Agreement in writing addressed and delivered to ADM, c/o the General Counsel’s office, within\nseven (7) days after the execution of this Agreement in which event this Agreement will be of no force and effect and he will be entitled to\nno payments or benefits that were to be paid pursuant to this Agreement. Unless revoked in accordance with this section 8(c), this\nAgreement shall be effective on the 8th day following the date of delivery of an executed copy of this Agreement to ADM (the “Effective\nDate”).\nd. He was given an adequate opportunity to consider this Agreement and he has read and understands the meaning and effect of this\nAgreement.\ne. He voluntarily agreed to the terms of the Agreement, which terms were determined through negotiation, and he intends to be legally\nbound by the same.\nf. The consideration provided herein is sufficient and is consideration to which he is not otherwise entitled to receive.\n9. Mulhollem agrees that the terms and conditions of this Agreement and the payments made pursuant hereto shall remain confidential and\nthat he will not disclose the same to any person, except his immediate family, his legal and financial advisors, or as required by law. Mulhollem\nacknowledges that ADM may be required to publicly disclose this Agreement and its terms in filings with the United States Securities and\nExchange Commission.\n10. In the event of a breach by Mulhollem of the provisions of paragraphs 2 or 3 of this agreement, ADM shall be released from the\nobligations to make any further payments\npursuant to paragraph 4 in addition to pursuing any other available remedy in law or equity, including without limitation specific performance\nand injunctive relief.\n11. Mulhollem shall not request or apply for employment with ADM or any of its subsidiaries.\n12. This Agreement shall be governed by the laws of the State of Illinois.\n13. Mulhollem agrees that he will not take any action, or make any statement, whether orally or in writing, which manifestly and\ndemonstrably disparages or impugns the reputation or goodwill of ADM, its subsidiaries, affiliates or any of their officers, directors or\nemployees. Mulhollem will not interfere with the relationships between ADM, its subsidiaries or affiliates and any of their customers, suppliers,\nvendors, distributors or representatives. Moreover, Mulhollem further agrees that he shall make no public statements, or request, cause or solicit\nany third-party to make any public statements, including without limitation to the media, regarding the circumstances of his retirement.\n14. The parties agree that the provisions in paragraphs 2, 3 and 5 are a critical and non-severable part of this Agreement. By executing this\nAgreement, the parties state that they have read the aforementioned paragraphs and after consulting counsel of their choice agree that they are\nreasonable and protect the parties’ interests. As such, the parties specifically agree that if Mulhollem seeks to invalidate or limit the scope of any\nof these provisions for any reason, this Agreement shall have no force or effect. If Mulhollem brings any action seeking to invalidate or limit the\nscope of paragraphs 2 or 3, Mulhollem shall return to ADM all considerations paid to him pursuant to paragraph 4 of this Agreement and\nMulhollem shall have no entitlement to any future payments or benefits provided pursuant to paragraph 4 of this Agreement.\n9\n15. Mulhollem shall not be in breach of this Agreement or any obligation unless and until written notice of such breach is given to Mulhollem\nand Mulhollem is afforded a reasonable opportunity to cure such breach. Such notice shall be delivered via registered mail, return receipt\nrequested, and shall describe in detail (i) the acts or omissions which ADM believes constitute such breach, and (ii) the steps, acts or omissions\nwhich must be taken by Mulhollem to correct and cure any such breach. ADM shall not be allowed to terminate this Agreement or cease\nperformance hereunder if Mulhollem is able to cure any breach within thirty (30) days following delivery of a notice of breach.\n16. This Agreement constitutes the entire agreement of the parties and supersedes any and all prior agreements and understandings between\nMulhollem and ADM, whether oral or in writing. This Agreement may not be revoked, amended, modified or revised except by a writing\nexecuted by Mulhollem and the Chief Executive or President of ADM.\n17. In the event of litigation in connection with the interpretation or enforcement of this Agreement, the prevailing party in such action shall\nbe entitled to reimbursement from the other party, in addition to any other relief awarded, all costs and fees paid or incurred by the prevailing\nparty in such action, including, without limitation, reasonable attorneys’ fees and costs.\n18. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns.\n(signature page follows)\n10\nIN WITNESS WHEREOQF, the parties have executed this Agreement on the date first above written. /s/ Stuart E. Funderburg\nWITNESS\n/s/ Paul B. Mulhollem\nPAUL B. MULHOLLEM\nDated: September 29, 2005\nARCHER-DANIELS-MIDLAND COMPANY\nBy: /s/ Douglas J. Schmalz\nDouglas J. Schmalz\nIts: Senior Vice President and Chief Financial\nOfficer\nDated: September 29, 2005\n11 EX-10 2 c98802exv10.htm AGREEMENT\nExhibit 10\nAGREEMENT\nTHIS AGREEMENT ("Agreement") is made as of the 29th day of September, 2005, by and between Paul B. Mulhollem ("Mulhollem") and\nArcher-Daniels-Midland Company, a Delaware corporation ("ADM").\nWITNESSETH:\nWHEREAS, Mulhollem has been employed by ADM in the capacity of President and Chief Operating Officer; and\nWHEREAS, Mulhollem and ADM desire to effect an amicable separation of employment, without litigation or controversy, in light of\nMulhollem's September 15, 2005 retirement from ADM.\nNOW, THEREFORE, in consideration of the promises and mutual covenants contained herein, it is agreed as follows:\n1. Upon his retirement, Mulhollem became entitled to certain benefits as set forth in this paragraph 1. These benefits are subject to Mulhollem\nremaining retired (within the meaning of the ADM Retirement Plan as in effect on the date hereof) and may be forfeited if he ceases to be retired\n(other than with respect to his consultation and cooperation obligations to ADM set forth herein), and are composed of the following:\na. The restricted stock granted to Mulhollem in the Restricted Stock Award Agreements dated August 8, 2005 and August 19, 2004 will\ncontinue to vest according to the terms of those agreements. Mulhollem's separation from ADM shall conclusively be deemed to be\npursuant to "Retirement," as such term is used in the various stock award and stock option agreements which Mulhollem participates in.\nMulhollem is entitled to exercise all vested stock options according to the terms of the applicable stock option agreements between him and\nADM;\nb. Mulhollem is permitted to roll over all amounts in his 401(k)/ESOP account into a self directed IRA;\nC.\nMulhollem will receive all salary he has previously deferred pursuant to the ADM Deferred Compensation Plan(s) in accordance with\nthe terms of such plan(s); and\nd. Mulhollem is permitted to participate in any retiree benefit programs for which he is eligible.\n2. Non-competition,_ etc.\na.\nAs ADM's President and Chief Operating Officer ("COO"), Mulhollem had direct access to and personal knowledge of ADM's most\nimportant proprietary business information including, but not limited to, business plans and strategies, financial information, trading and\nhedging strategies, and operational methods, plans and strategies. This information is proprietary to ADM and subject to reasonable efforts\nby ADM to secure its confidentiality. This proprietary information has significant value to ADM as it provides ADM with a strategic\nadvantage over it competitors. Were this information provided to ADM's competitors, ADM would be irreparably harmed. ADM and\nMulhollem agree that if Mulhollem were to work for one of ADM's competitors within the next three years, he would be unable to perform\nhis duties without disclosing ADM's confidential and proprietary business information.\nb. Consequently, without the prior written consent of ADM, which consent must be signed by the Chief Executive or President of ADM\nuntil September 15, 2008, Mulhollem shall not own any interest in, except the\n2\nownership of stock in a publicly-traded company, take any employment with, or act as a director, officer, agent, consultant, advisor,\nindependent contractor or in any other capacity whatsoever, directly or indirectly, with or to any person, corporation, partnership, limited\nliability company, firm, joint venture or any other form of entity, anywhere in the world, that competes with ADM or any of its subsidiaries\nor affiliates or provides the same goods or services as ADM or any of its subsidiaries or affiliates.\nC. Mulhollem acknowledges that, in light of his responsibilities while employed as ADM's President and COO, the scope of these post-\nemployment restrictions is reasonable and that if he were to come out of retirement, he would have ample job opportunities based upon his\nexperience and education. Mulhollem further acknowledges that a violation of this paragraph 2 would cause irreparable damage to ADM\nand\nthat in the event of a breach or threatened breach, hereof, ADM would be entitled to injunctive relief, without the posting of any bond,\nin addition to such other relief as may be appropriate at law or in equity.\nd. For the period from the Effective Date of this Agreement through September 15, 2008, Mulhollem shall not hire or solicit for\nemployment any employee on the payroll of ADM or any of its subsidiaries or affiliates.\n3.\nThe Non-Disclosure Agreement between ADM and Mulhollem dated January 6, 1992, a copy of which is marked Exhibit A, attached\nhereto and by this reference incorporated herein, shall remain in full force and effect in accordance with its terms.\n4. In consideration of the post-employment restrictions placed on Mulhollem in this Agreement and the continuing application of the Non-\nDisclosure Agreement, ADM shall\n3\nprovide Mulhollem the following valuable consideration to which he would not otherwise have been entitled:\na.\nADM shall pay Mulhollem the cash value of the restricted stock granted to him under the terms of the October 14, 2003 Restricted Stock\nAward Agreement as provided for herein. The amount shall be determined by multiplying the number of shares of restricted stock by\n$23.16, the closing price for ADM's Common Stock on September 15, 2005. Payments shall be made as follows:\ni.25% of the amount on the Effective Date of this Agreement;\nii.25% of the amount on September 15, 2006, provided Mulhollem has fully complied with paragraphs 2 and 3 of this Agreement;\niii.25% of the amount on September 15, 2007, provided Mulhollem has fully complied with paragraphs 2 and 3 of this Agreement; and\niv.25% of the amount on September 15, 2008, provided Mulhollem has fully complied with paragraphs 2 and 3 of this Agreement.\nb. ADM shall retain Mulhollem as a consultant for a three-year period from September 15, 2005 expiring September 15, 2008. Mulhollem\nshall perform such reasonable duties as he may be requested to perform by ADM's Chief Executive. ADM shall compensate Mulhollem by\npaying him $550,000 per year (payable monthly in arrears) for his consulting services provided Mulhollem has fully complied with\nparagraphs 2 and 3 of this Agreement.\n4\n5. Release\na. Mulhollem hereby forever releases ADM, and its subsidiaries and affiliates and each of ADM's and its subsidiaries' and affilicates'\nofficers, directors, representatives, shareholders, agents, employees, predecessors, successors and assigns (collectively "Releasees"), from\nany and all complaints, charges, claims, liabilities, demands, debts, accounts, obligations, promises, suits, actions, causes of action,\ndemands in law or equity, including claims for damages, attorneys' fees or costs, whether known or unknown, which Mulhollem now has,\nor claims to have, or which Mulhollem at any time may have had, or claimed to have, or which Mulhollem at any time hereafter may have,\nor claim to have, arising at any time in the past to and including the date of this Agreement, including, but without limiting the generality of\nthe foregoing, any matters relating in any way to Mulhollem's employment relationship with ADM or his retirement from ADM.\nb. The claims, rights and obligations that Mulhollem is hereby releasing include, but are not limited to:\ni. those for breach of contract, breach of implied contract, breach of implied covenant of good faith and fair dealing, wrongful discharge,\nretaliatory discharge, constructive discharge, and any other common law or statutory claims now or hereafter recognized;\nii. those for discrimination (including but not limited to claims for discrimination, harassment or retaliation on account of gender, age,\nhandicap, medical condition or disability, national origin, race, color, religion, sexual preference, or veteran status) which Mulhollem\nmight\n5\nhave or might have had under the Age Discrimination in Employment Act, Title VII of the 1964 Civil Rights Act, the Civil Rights Act\nof 1866, the Americans with Disabilities Act, the Family and Medical Leave Act, the Rehabilitation Act of 1973, the Illinois\nConstitution, the Illinois Human Rights Act, the Illinois Wage Payment and Calculation Act, the Illinois Minimum Wage Law, and any\nother federal, state or local laws, statutes, orders, regulations or enactments of any type. By signing this Agreement, Mulhollem agrees to\ngive up, or waive, any rights or claims which he may have had under the Age Discrimination in Employment Act of 1967, 29 U.S.C.\n$621 et. seq., the Older Worker Benefit Protection Act, or any other statutes or other laws, which are based on the actions of any of the\nReleasees that occurred up through the date that Mulhollem signs this Agreement; and,\niii. Any and all claims for attorneys' fees and costs.\nC. Mulhollem further acknowledges and agrees that this Agreement shall operate as a complete bar to recovery in any and all litigation,\ncharges,\ncomplaints, grievances or demands of any kind whatsoever now pending or now contemplated by Mulhollem or which might\nat\nany time be filed by Mulhollem related to his employment with ADM and his retirement from ADM. Each and all of the said claims are\nhereby fully and finally settled, compromised and released.\nd. Nothing in this paragraph 5 is intended to operate as a release, waiver or forfeiture of Mulhollem's rights, and ADM's obligations, under\n(i) this Agreement, (ii) any 401(k), ESOP or other retirement plan which Mulhollem\n6\nparticipates in as of the date hereof, and (iii) any indemnification or similar right relating to actual or alleged acts or omissions by\nMulhollem in his office capacity as an officer of ADM prior to the date hereof.\n6. In consideration for the Release in paragraph 5, and Mulhollem's other covenants herein, ADM shall:\na. pay Mulhollem, on the Effective Date of this Agreement, an amount equal to the aggregate difference between the option price and\n$23.16, the closing share price of ADM common stock on September 15, 2005 for all of Mulhollem's unvested stock options as of the\ndate\nhereof.;\nb. transfer to Mulhollem unencumbered title to Mulhollem's company car on or before December 31, 2005; and\nC. provide Mulhollem with coverage under ADM's retiree medical plan.\n7. Upon ADM's request, Mulhollem shall provide his reasonable cooperation relative to any matter which arises within Mulhollem's former\narea(s) of responsibility with ADM which is based upon facts occurring or circumstances existing prior to the date hereof. ADM shall reimburse\nMulhollem for any out-of-pocket expenses reasonably incurred by Mulhollem providing any such requested cooperation upon presentation of\nappropriate supporting documentation.\n8. Mulhollem expressly acknowledges that:\na. He was provided with a copy of this Agreement and was advised in writing to consult with an attorney concerning its meaning and\neffect.\nb. He was provided twenty-one (21) days to consider whether to enter into this Agreement. Subsequently, Mulhollem retained the law firm\nof Meyer Capel to advise him with respect to this Agreement.\n7\nC. He understands he may revoke this Agreement in writing addressed and delivered to ADM, c/o the General Counsel's office, within\nseven (7) days after the execution of this Agreement in which event this Agreement will be of no force and effect and he will be entitled to\nno payments or benefits that were to be paid pursuant to this Agreement. Unless revoked in accordance with this section 8(c), this\nAgreement shall be effective on the 8th day following the date of delivery of an executed copy of this Agreement to ADM (the "Effective\nDate").\nd. He was given an adequate opportunity to consider this Agreement and he has read and understands the meaning and effect of this\nAgreement.\ne.\nHe voluntarily agreed to the terms of the Agreement, which terms were determined through negotiation, and he intends to be legally\nbound by the same.\nf. The consideration provided herein is sufficient and is consideration to which he is not otherwise entitled to receive.\n9. Mulhollem agrees that the terms and conditions of this Agreement and the payments made pursuant hereto shall remain confidential and\nthat\nhe\nwill not disclose the same to any person, except his immediate family, his legal and financial advisors, or as required by law. Mulhollem\nacknowledges that ADM may be required to publicly disclose this Agreement and its terms in filings with the United States Securities and\nExchange Commission.\n10. In the event of a breach by Mulhollem of the provisions of paragraphs 2 or 3 of this agreement, ADM shall be released from the\nobligations to make any further payments\n8\npursuant to paragraph 4 in addition to pursuing any other available remedy in law or equity, including without limitation specific performance\nand injunctive relief.\n11. Mulhollem shall not request or apply for employment with ADM or any of its subsidiaries.\n12. This Agreement shall be governed by the laws of the State of Illinois.\n13. Mulhollem agrees that he will not take any action, or make any statement, whether orally or in writing, which manifestly and\ndemonstrably disparages or impugns the reputation or goodwill of ADM, its subsidiaries, affiliates or any of their officers, directors or\nemployees.\nMulhollem will not interfere with the relationships between ADM, its subsidiaries or affiliates and any of their customers,\nsuppliers,\nvendors, distributors or representatives. Moreover, Mulhollem further agrees that he shall make no public statements, or request, cause or solicit\nany third-party to make any public statements, including without limitation to the media, regarding the circumstances of his retirement.\n14. The parties agree that the provisions in paragraphs 2, 3 and 5 are a critical and non-severable part of this Agreement. By executing this\nAgreement, the parties state that they have read the aforementioned paragraphs and after consulting counsel of their choice agree that they are\nreasonable and protect the parties' interests. As such, the parties specifically agree that if Mulhollem seeks to invalidate or limit the scope of any\nof these provisions for any reason, this Agreement shall have no force or effect. If Mulhollem brings any action seeking to invalidate or limit the\nscope of paragraphs 2 or 3, Mulhollem shall return to ADM all considerations paid to him pursuant to paragraph 4 of this Agreement\nand\nMulhollem shall have no entitlement to any future payments or benefits provided pursuant to paragraph 4 of this Agreement.\n9\n15. Mulhollem shall not be in breach of this Agreement or any obligation unless and until written notice of such breach is given to Mulhollem\nand Mulhollem is afforded a reasonable opportunity to cure such breach. Such notice shall be delivered via registered mail, return receipt\nrequested, and shall describe in detail (i) the acts or omissions which ADM believes constitute such breach, and (ii) the steps, acts or omissions\nwhich must be taken by Mulhollem to correct and cure any such breach. ADM shall not be allowed to terminate this Agreement or cease\nperformance hereunder if Mulhollem is able to cure any breach within thirty (30) days following delivery of a notice of breach.\n16. This Agreement constitutes the entire agreement of the parties and supersedes any and all prior agreements and understandings between\nMulhollem and ADM, whether oral or in writing. This Agreement may not be revoked, amended, modified or revised except by a writing\nexecuted by Mulhollem and the Chief Executive or President of ADM.\n17. In the event of litigation in connection with the interpretation or enforcement of this Agreement, the prevailing party in such action shall\nbe entitled to reimbursement from the other party, in addition to any other relief awarded, all costs and fees paid or incurred by the prevailing\nparty in such action, including, without limitation, reasonable attorneys' fees and costs.\n18. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns\n(signature page follows)\n10\nIN WITNESS WHEREOF, the parties have executed this Agreement on the date first above written.\n/s/ Paul B. Mulhollem\nPAUL B. MULHOLLEM\nDated: September 29, 2005\n/s/ Stuart E. Funderburg\nWITNESS\nARCHER-DANIELS-MIDLAND COMPANY\nBy: /s/ Douglas J. Schmalz\nDouglas J. Schmalz\nIts: Senior Vice President and Chief Financial\nOfficer\nDated: September 29, 2005\n11 EX-10 2 c98802exv10.htm AGREEMENT\nExhibit 10\nAGREEMENT\nTHIS AGREEMENT (“Agreement”) is made as of the 29th day of September, 2005, by and between Paul B. Mulhollem (“Mulhollem”) and\nArcher-Daniels-Midland Company, a Delaware corporation (“ADM”).\nWITNESSETH:\nWHEREAS, Mulhollem has been employed by ADM in the capacity of President and Chief Operating Officer; and\nWHEREAS, Mulhollem and ADM desire to effect an amicable separation of employment, without litigation or controversy, in light of\nMulhollem’s September 15, 2005 retirement from ADM.\nNOW, THEREFORE, in consideration of the promises and mutual covenants contained herein, it is agreed as follows:\n1. Upon his retirement, Mulhollem became entitled to certain benefits as set forth in this paragraph 1. These benefits are subject to Mulhollem\nremaining retired (within the meaning of the ADM Retirement Plan as in effect on the date hereof) and may be forfeited if he ceases to be retired\n(other than with respect to his consultation and cooperation obligations to ADM set forth herein), and are composed of the following:\na. The restricted stock granted to Mulhollem in the Restricted Stock Award Agreements dated August 8, 2005 and August 19, 2004 will\ncontinue to vest according to the terms of those agreements. Mulhollem’s separation from ADM shall conclusively be deemed to be\npursuant to “Retirement,” as such term is used in the various stock award and stock option agreements which Mulhollem participates in.\nMulhollem is entitled to exercise all vested stock options according to the terms of the applicable stock option agreements between him and\nADM;\nb. Mulhollem is permitted to roll over all amounts in his 401(k)/ESOP account into a self directed IRA;\nc. Mulhollem will receive all salary he has previously deferred pursuant to the ADM Deferred Compensation Plan(s) in accordance with\nthe terms of such plan(s); and\nd. Mulhollem is permitted to participate in any retiree benefit programs for which he is eligible.\n2. Non-competition, etc.\na. As ADM’s President and Chief Operating Officer (“COO”), Mulhollem had direct access to and personal knowledge of ADM’s most\nimportant proprietary business information including, but not limited to, business plans and strategies, financial information, trading and\nhedging strategies, and operational methods, plans and strategies. This information is proprietary to ADM and subject to reasonable efforts\nby ADM to secure its confidentiality. This proprietary information has significant value to ADM as it provides ADM with a strategic\nadvantage over it competitors. Were this information provided to ADM’s competitors, ADM would be irreparably harmed. ADM and\nMulhollem agree that if Mulhollem were to work for one of ADM’s competitors within the next three years, he would be unable to perform\nhis duties without disclosing ADM’s confidential and proprietary business information.\nb. Consequently, without the prior written consent of ADM, which consent must be signed by the Chief Executive or President of ADM\nuntil September 15, 2008, Mulhollem shall not own any interest in, except the\n2\nownership of stock in a publicly-traded company, take any employment with, or act as a director, officer, agent, consultant, advisor,\nindependent contractor or in any other capacity whatsoever, directly or indirectly, with or to any person, corporation, partnership, limited\nliability company, firm, joint venture or any other form of entity, anywhere in the world, that competes with ADM or any of its subsidiaries\nor affiliates or provides the same goods or services as ADM or any of its subsidiaries or affiliates.\nc. Mulhollem acknowledges that, in light of his responsibilities while employed as ADM’s President and COO, the scope of these post-\nemployment restrictions is reasonable and that if he were to come out of retirement, he would have ample job opportunities based upon his\nexperience and education. Mulhollem further acknowledges that a violation of this paragraph 2 would cause irreparable damage to ADM\nand that in the event of a breach or threatened breach, hereof, ADM would be entitled to injunctive relief, without the posting of any bond,\nin addition to such other relief as may be appropriate at law or in equity.\nd. For the period from the Effective Date of this Agreement through September 15, 2008, Mulhollem shall not hire or solicit for\nemployment any employee on the payroll of ADM or any of its subsidiaries or affiliates.\n3. The Non-Disclosure Agreement between ADM and Mulhollem dated January 6, 1992, a copy of which is marked Exhibit A, attached\nhereto and by this reference incorporated herein, shall remain in full force and effect in accordance with its terms.\n4. In consideration of the post-employment restrictions placed on Mulhollem in this Agreement and the continuing application of the Non-\nDisclosure Agreement, ADM shall\n3\nprovide Mulhollem the following valuable consideration to which he would not otherwise have been entitled:\na. ADM shall pay Mulhollem the cash value of the restricted stock granted to him under the terms of the October 14, 2003 Restricted Stock\nAward Agreement as provided for herein. The amount shall be determined by multiplying the number of shares of restricted stock by\n$23.16, the closing price for ADM’s Common Stock on September 15, 2005. Payments shall be made as follows:\ni.25% of the amount on the Effective Date of this Agreement;\nii.25% of the amount on September 15, 2006, provided Mulhollem has fully complied with paragraphs 2 and 3 of this Agreement;\niii.25% of the amount on September 15, 2007, provided Mulhollem has fully complied with paragraphs 2 and 3 of this Agreement; and\niv.25% of the amount on September 15, 2008, provided Mulhollem has fully complied with paragraphs 2 and 3 of this Agreement.\nb. ADM shall retain Mulhollem as a consultant for a three-year period from September 15, 2005 expiring September 15, 2008. Mulhollem\nshall perform such reasonable duties as he may be requested to perform by ADM’s Chief Executive. ADM shall compensate Mulhollem by\npaying him $550,000 per year (payable monthly in arrears) for his consulting services provided Mulhollem has fully complied with\nparagraphs 2 and 3 of this Agreement.\n4\n5. Release\na. Mulhollem hereby forever releases ADM, and its subsidiaries and affiliates and each of ADM’s and its subsidiaries’ and affilicates’\nofficers, directors, representatives, shareholders, agents, employees, predecessors, successors and assigns (collectively “Releasees”), from\nany and all complaints, charges, claims, liabilities, demands, debts, accounts, obligations, promises, suits, actions, causes of action,\ndemands in law or equity, including claims for damages, attorneys’ fees or costs, whether known or unknown, which Mulhollem now has,\nor claims to have, or which Mulhollem at any time may have had, or claimed to have, or which Mulhollem at any time hereafter may have,\nor claim to have, arising at any time in the past to and including the date of this Agreement, including, but without limiting the generality of\nthe foregoing, any matters relating in any way to Mulhollem’s employment relationship with ADM or his retirement from ADM.\nb. The claims, rights and obligations that Mulhollem is hereby releasing include, but are not limited to:\ni. those for breach of contract, breach of implied contract, breach of implied covenant of good faith and fair dealing, wrongful discharge,\nretaliatory discharge, constructive discharge, and any other common law or statutory claims now or hereafter recognized;\nii. those for discrimination (including but not limited to claims for discrimination, harassment or retaliation on account of gender, age,\nhandicap, medical condition or disability, national origin, race, color, religion, sexual preference, or veteran status) which Mulhollem\nmight\n5\nhave or might have had under the Age Discrimination in Employment Act, Title VII of the 1964 Civil Rights Act, the Civil Rights Act\nof 1866, the Americans with Disabilities Act, the Family and Medical Leave Act, the Rehabilitation Act of 1973, the Illinois\nConstitution, the Illinois Human Rights Act, the Illinois Wage Payment and Calculation Act, the Illinois Minimum Wage Law, and any\nother federal, state or local laws, statutes, orders, regulations or enactments of any type. By signing this Agreement, Mulhollem agrees to\ngive up, or waive, any rights or claims which he may have had under the Age Discrimination in Employment Act of 1967, 29 U.S .C.\n§621 et. seq., the Older Worker Benefit Protection Act, or any other statutes or other laws, which are based on the actions of any of the\nReleasees that occurred up through the date that Mulhollem signs this Agreement; and,\niii. Any and all claims for attorneys’ fees and costs.\nc. Mulhollem further acknowledges and agrees that this Agreement shall operate as a complete bar to recovery in any and all litigation,\ncharges, complaints, grievances or demands of any kind whatsoever now pending or now contemplated by Mulhollem or which might at\nany time be filed by Mulhollem related to his employment with ADM and his retirement from ADM. Each and all of the said claims are\nhereby fully and finally settled, compromised and released.\nd. Nothing in this paragraph 5 is intended to operate as a release, waiver or forfeiture of Mulhollem’s rights, and ADM’s obligations, under\n(i) this Agreement, (ii) any 401(k), ESOP or other retirement plan which Mulhollem\n6\nparticipates in as of the date hereof, and (iii) any indemnification or similar right relating to actual or alleged acts or omissions by\nMulhollem in his office capacity as an officer of ADM prior to the date hereof.\n6. In consideration for the Release in paragraph 5, and Mulhollem’s other covenants herein, ADM shall:\na. pay Mulhollem, on the Effective Date of this Agreement, an amount equal to the aggregate difference between the option price and\n$23.16, the closing share price of ADM common stock on September 15, 2005 for all of Mulhollem’s unvested stock options as of the date\nhereof.;\nb. transfer to Mulhollem unencumbered title to Mulhollem’s company car on or before December 31, 2005; and\nc. provide Mulhollem with coverage under ADM’s retiree medical plan.\n7. Upon ADM’s request, Mulhollem shall provide his reasonable cooperation relative to any matter which arises within Mulhollem’s former\narea(s) of responsibility with ADM which is based upon facts occurring or circumstances existing prior to the date hereof. ADM shall reimburse\nMulhollem for any out-of-pocket expenses reasonably incurred by Mulhollem providing any such requested cooperation upon presentation of\nappropriate supporting documentation.\n8. Mulhollem expressly acknowledges that:\na. He was provided with a copy of this Agreement and was advised in writing to consult with an attorney concerning its meaning and\neffect.\nb. He was provided twenty-one (21) days to consider whether to enter into this Agreement. Subsequently, Mulhollem retained the law firm\nof Meyer Capel to advise him with respect to this Agreement.\n7\nc. He understands he may revoke this Agreement in writing addressed and delivered to ADM, c/o the General Counsel’s office, within\nseven (7) days after the execution of this Agreement in which event this Agreement will be of no force and effect and he will be entitled to\nno payments or benefits that were to be paid pursuant to this Agreement. Unless revoked in accordance with this section 8(c), this\nAgreement shall be effective on the 8th day following the date of delivery of an executed copy of this Agreement to ADM (the “Effective\nDate”).\nd. He was given an adequate opportunity to consider this Agreement and he has read and understands the meaning and effect of this\nAgreement.\ne. He voluntarily agreed to the terms of the Agreement, which terms were determined through negotiation, and he intends to be legally\nbound by the same.\nf. The consideration provided herein is sufficient and is consideration to which he is not otherwise entitled to receive.\n9. Mulhollem agrees that the terms and conditions of this Agreement and the payments made pursuant hereto shall remain confidential and\nthat he will not disclose the same to any person, except his immediate family, his legal and financial advisors, or as required by law. Mulhollem\nacknowledges that ADM may be required to publicly disclose this Agreement and its terms in filings with the United States Securities and\nExchange Commission.\n10. In the event of a breach by Mulhollem of the provisions of paragraphs 2 or 3 of this agreement, ADM shall be released from the\nobligations to make any further payments\n8\npursuant to paragraph 4 in addition to pursuing any other available remedy in law or equity, including without limitation specific performance\nand injunctive relief.\n11. Mulhollem shall not request or apply for employment with ADM or any of its subsidiaries.\n12. This Agreement shall be governed by the laws of the State of Illinois.\n13. Mulhollem agrees that he will not take any action, or make any statement, whether orally or in writing, which manifestly and\ndemonstrably disparages or impugns the reputation or goodwill of ADM, its subsidiaries, affiliates or any of their officers, directors or\nemployees. Mulhollem will not interfere with the relationships between ADM, its subsidiaries or affiliates and any of their customers, suppliers,\nvendors, distributors or representatives. Moreover, Mulhollem further agrees that he shall make no public statements, or request, cause or solicit\nany third-party to make any public statements, including without limitation to the media, regarding the circumstances of his retirement.\n14. The parties agree that the provisions in paragraphs 2, 3 and 5 are a critical and non-severable part of this Agreement. By executing this\nAgreement, the parties state that they have read the aforementioned paragraphs and after consulting counsel of their choice agree that they are\nreasonable and protect the parties’ interests. As such, the parties specifically agree that if Mulhollem seeks to invalidate or limit the scope of any\nof these provisions for any reason, this Agreement shall have no force or effect. If Mulhollem brings any action seeking to invalidate or limit the\nscope of paragraphs 2 or 3, Mulhollem shall return to ADM all considerations paid to him pursuant to paragraph 4 of this Agreement and\nMulhollem shall have no entitlement to any future payments or benefits provided pursuant to paragraph 4 of this Agreement.\n9\n15. Mulhollem shall not be in breach of this Agreement or any obligation unless and until written notice of such breach is given to Mulhollem\nand Mulhollem is afforded a reasonable opportunity to cure such breach. Such notice shall be delivered via registered mail, return receipt\nrequested, and shall describe in detail (i) the acts or omissions which ADM believes constitute such breach, and (ii) the steps, acts or omissions\nwhich must be taken by Mulhollem to correct and cure any such breach. ADM shall not be allowed to terminate this Agreement or cease\nperformance hereunder if Mulhollem is able to cure any breach within thirty (30) days following delivery of a notice of breach.\n16. This Agreement constitutes the entire agreement of the parties and supersedes any and all prior agreements and understandings between\nMulhollem and ADM, whether oral or in writing. This Agreement may not be revoked, amended, modified or revised except by a writing\nexecuted by Mulhollem and the Chief Executive or President of ADM.\n17. In the event of litigation in connection with the interpretation or enforcement of this Agreement, the prevailing party in such action shall\nbe entitled to reimbursement from the other party, in addition to any other relief awarded, all costs and fees paid or incurred by the prevailing\nparty in such action, including, without limitation, reasonable attorneys’ fees and costs.\n18. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns.\n(signature page follows)\n10\nIN WITNESS WHEREOF, the parties have executed this Agreement on the date first above written.\n/s/ Paul B. Mulhollem\nPAUL B. MULHOLLEM\nDated: September 29, 2005\n/s/ Stuart E. Funderburg\nWITNESS\nARCHER-DANIELS-MIDLAND COMPANY\nBy: /s/ Douglas J. Schmalz\nDouglas J. Schmalz\nIts: Senior Vice President and Chief Financial\nOfficer\nDated: September 29, 2005\n11 b6e2939084cbdb9da155803777f9ad78.pdf effective_date jurisdiction party term EX-10.19 25 dex1019.htm FORM OF EMPLOYEE NON-DISCLOSURE AGREEMENT\nExhibit 10.19\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (hereinafter the “Agreement”) is made and entered into on May 4, 2005 by and between the Affiliated\nCompanies, which included but are not limited to, Silver Valley Capital, Sterling Mining Company, Kimberly Gold Mines, Inc. Shoshone Silver\nMining Company (hereinafter the “Company”), and Michael L. Mooney (hereinafter “Employee”).\nFOR GOOD CONSIDERATION, and in consideration of Employee’s employment or continued employment with the Company, Employee\nhereby agrees and acknowledges:\n1. That during the course of my employment with the Company, there may be disclosed to me certain trade secrets, confidential and/or\nproprietary business information of or regarding the Company; consisting of but not necessarily limited to:\na. Technical information: Assays and assay results, resource estimates and/or projections. methods, processes, formulae, compositions.\nsystems, techniques, inventions, machines, computer programs, research projects and experimental or developmental work, relating to any project or\norganization.\nb. Business information: Business and development plans, investor and customer lists, pricing data, sources of supply, financial data,\nmarketing, production, and merchandising systems or plans and operation plans, investor transactions, stock and/or warrant ownership.\n2. As used in this Agreement, the term “Confidential Information” means all Technical and/or Business information described in paragraphs\n1(a) and (b) above, and any other trade secrets and/or confidential and/or proprietary business information of or regarding the Company (including\ninformation created or developed, in whole or in part, by Employee), which is not generally known about the Company or about its business.\nConfidential Information includes not only the information itself, but also all documents containing such information, and any and all such\ninformation maintained in electronic or other form. For purposes of this Agreement, Confidential Information shall not include any information\nwhich Employee can establish was (i) was publicly known or (ii) becomes publicly known and made generally available after disclosure to\nEmployee by the Company, through means other than Employee’s breach of his/her obligations under this Agreement.\n3. Employee agrees that, except in promoting the Company’s business, and as necessary in performing the duties of his/her employment with\nthe Company, Employee shall not use in any manner, directly or indirectly, any Confidential Information. Employee agrees that he/she will never use\nany Confidential Information for his/her own benefit or for the benefit of any person or entity other than the Company, and will not permit or allow\nany Confidential Information to be used in competition with the Company. Employee acknowledges and agrees that all Confidential Information is\nthe exclusive property of the Company, and Employee has no independent or individual claim to such Confidential Information for any purpose.\nDuring his/her employment with the Company and at all times thereafter, Employee shall take all reasonable steps to prevent any unauthorized\ndisclosure or use of any and all Confidential Information. Employee further agrees to notify the Company immediately in the event that he/she\nbecomes aware of any unauthorized use or disclosure of Confidential Information.\n4. Employee understands and agrees that he/she is being employed for an indefinite term, and is an “employee at will” whose employment\nwith the Company can be terminated by either Employee or the Company at any time. for any reason, or for no reason at all, with or without advance\nnotice.\n5. All questions with regard to the interpretation and enforcement of any provision of this Agreement shall be determined in accordance with\nthe laws of the State of Idaho.\n6. I agree that upon the termination of my employment from Company:\na. I shall return to Company all documents and property of Company, even if not marked “confidential” or “proprietary,” including but\nnot necessarily limited to: drawings, blueprints, reports, manuals, correspondence, customer and/or investor lists, computer programs, and all other\nmaterials and all copies thereof relating in any way to Company’s business, or in any way obtained by me during the course of employment. I further\nagree that I shall not retain copies. notes or abstracts of the foregoing.\nb. The Company may notify any future or prospective employer or third party of the existence of this Agreement. The Company shall be\nentitled to injunctive relief for any or threatened breach of this Agreement, in addition to all other available remedies, including the recovery of\nmonetary damages.\nc. This Agreement shall be binding upon me and my personal representatives and successors-in-interest, and shall inure to the benefit of\nCompany, its successors and assigns.\nAuthorized Company Signature\nEmployee Signature\nPrinted Name\nPrinted Name\nDate\nDate\n2 EX-10.19 25 dex1019.htm FORM OF EMPLOYEE NON-DISCLOSURE AGREEMENT\nExhibit 10.19\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (hereinafter the “Agreement”) is made and entered into on May 4, 2005 by and between the Affiliated\nCompanies, which included but are not limited to, Silver Valley Capital, Sterling Mining Company, Kimberly Gold Mines, Inc. Shoshone Silver\nMining Company (hereinafter the “Company”), and Michael L. Mooney (hereinafter “Employee”).\nFOR GOOD CONSIDERATION, and in consideration of Employee’s employment or continued employment with the Company, Employee\nhereby agrees and acknowledges:\n1. That during the course of my employment with the Company, there may be disclosed to me certain trade secrets, confidential and/or\nproprietary business information of or regarding the Company; consisting of but not necessarily limited to:\na. Technical information: Assays and assay results, resource estimates and/or projections. methods, processes, formulae, compositions.\nsystems, techniques, inventions, machines, computer programs, research projects and experimental or developmental work, relating to any project or\norganization.\nb. Business information: Business and development plans, investor and customer lists, pricing data, sources of supply, financial data,\nmarketing, production, and merchandising systems or plans and operation plans, investor transactions, stock and/or warrant ownership.\n2. As used in this Agreement, the term “Confidential Information” means all Technical and/or Business information described in paragraphs\n1(a) and (b) above, and any other trade secrets and/or confidential and/or proprietary business information of or regarding the Company (including\ninformation created or developed, in whole or in part, by Employee), which is not generally known about the Company or about its business.\nConfidential Information includes not only the information itself, but also all documents containing such information, and any and all such\ninformation maintained in electronic or other form. For purposes of this Agreement, Confidential Information shall not include any information\nwhich Employee can establish was (i) was publicly known or (ii) becomes publicly known and made generally available after disclosure to\nEmployee by the Company, through means other than Employee’s breach of his/her obligations under this Agreement.\n3. Employee agrees that, except in promoting the Company’s business, and as necessary in performing the duties of his/her employment with\nthe Company, Employee shall not use in any manner, directly or indirectly, any Confidential Information. Employee agrees that he/she will never use\nany Confidential Information for his/her own benefit or for the benefit of any person or entity other than the Company, and will not permit or allow\nany Confidential Information to be used in competition with the Company. Employee acknowledges and agrees that all Confidential Information is\nthe exclusive property of the Company, and Employee has no independent or individual claim to such Confidential Information for any purpose.\nDuring his/her employment with the Company and at all times thereafter, Employee shall take all reasonable steps to prevent any unauthorized\ndisclosure or use of any and all Confidential Information. Employee further agrees to notify the Company immediately in the event that he/she\nbecomes aware of any unauthorized use or disclosure of Confidential Information.\n4. Employee understands and agrees that he/she is being employed for an indefinite term, and is an “employee at will” whose employment\nwith the Company can be terminated by either Employee or the Company at any time. for any reason, or for no reason at all, with or without advance\nnotice.\n5. All questions with regard to the interpretation and enforcement of any provision of this Agreement shall be determined in accordance with\nthe laws of the State of Idaho.\n6. I agree that upon the termination of my employment from Company:\na. I shall return to Company all documents and property of Company, even if not marked “confidential” or “proprietary,” including but\nnot necessarily limited to: drawings, blueprints, reports, manuals, correspondence, customer and/or investor lists, computer programs, and all other\nmaterials and all copies thereof relating in any way to Company’s business, or in any way obtained by me during the course of employment. I further\nagree that I shall not retain copies. notes or abstracts of the foregoing.\nb. The Company may notify any future or prospective employer or third party of the existence of this Agreement. The Company shall be\nentitled to injunctive relief for any or threatened breach of this Agreement, in addition to all other available remedies, including the recovery of\nmonetary damages.\nc. This Agreement shall be binding upon me and my personal representatives and successors-in-interest, and shall inure to the benefit of\nCompany, its successors and assigns.\nAuthorized Company Signature Employee Signature\nPrinted Name Printed Name\nDate Date EX-10.19 25 dex 1019.htm FORM OF EMPLOYEE NON-DISCLOSURE AGREEMENT\nExhibit 10.19\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (hereinafter the "Agreement") is made and entered into on May 4, 2005 by and between the Affiliated\nCompanies, which included but are not limited to, Silver Valley Capital, Sterling Mining Company, Kimberly Gold Mines, Inc. Shoshone Silver\nMining Company (hereinafter the "Company"), and Michael L. Mooney (hereinafter "Employee").\nFOR GOOD CONSIDERATION, and in consideration of Employee's employment or continued employment with the Company, Employee\nhereby agrees and acknowledges:\n1. That during the course of my employment with the Company, there may be disclosed to me certain trade secrets, confidentia and/or\nproprietary business information of or regarding the Company; consisting of but not necessarily limited to:\na. Technical information: Assays and assay results, resource estimates and/or projections. methods, processes, formulae, compositions.\nsystems, techniques, inventions, machines, computer programs, research projects and experimental or developmental work, relating to any project or\norganization.\nb. Business information: Business and development plans, investor and customer lists, pricing data, sources of supply, financial data,\nmarketing, production, and merchandising systems or plans and operation plans, investor transactions, stock and/or warrant ownership.\n2. As used in this Agreement, the term "Confidential Information" means all Technical and/or Business information described in paragraphs\n1(a) and (b) above, and any other trade secrets and/or confidential and/or proprietary business information of or regarding the Company (including\ninformation created or developed, in whole or in part, by Employee), which is not generally known about the Company or about its business.\nConfidential Information includes not only the information itself, but also all documents containing such information, and any and all such\ninformation maintained in electronic or other form. For purposes of this Agreement, Confidential Information shall not include any information\nwhich Employee can establish was (i) was publicly known or (ii) becomes publicly known and made generally available after disclosure to\nEmployee by the Company, through means other than Employee's breach of his/her obligations under this Agreement.\n3. Employee agrees that, except in promoting the Company's business, and as necessary in performing the duties of his/her employment with\nthe Company, Employee shall not use in any manner, directly or indirectly, any Confidential Information. Employee agrees that he/she will never use\nany Confidential Information for his/her own benefit or for the benefit of any person or entity other than the Company, and will not permit or allow\nany Confidential Information to be used in competition with the Company. Employee acknowledges and agrees that all Confidential Information is\nthe exclusive property of the Company, and Employee has no independent or individual claim to such Confidential Information for any purpose.\nDuring his/her employment with the Company and at all times thereafter, Employee shall take all reasonable steps to prevent any unauthorized\ndisclosure or use of any and all Confidential Information. Employee further agrees to notify the Company immediately in the event that he/she\nbecomes aware of any unauthorized use or disclosure of Confidential Information.\n4. Employee understands and agrees that he/she is being employed for an indefinite term, and is an "employee at will" whose employment\nwith the Company can be terminated by either Employee or the Company at any time. for any reason, or for no reason at all, with or without advance\nnotice.\n5. All questions with regard to the interpretation and enforcement of any provision of this Agreement shall be determined in accordance with\nthe laws of the State of Idaho.\n6. I agree that upon the termination of my employment from Company:\na. I shall return to Company all documents and property of Company, even if not marked "confidential" or "proprietary," including but\nnot necessarily limited to: drawings, blueprints, reports, manuals, correspondence, customer and/or investor lists, computer programs, and all other\nmaterials and all copies thereof relating in any way to Company's business, or in any way obtained by me during the course of employment. I further\nagree that I shall not retain copies notes or abstracts of the foregoing.\nb. The Company may notify any future or prospective employer or third party of the existence of this Agreement. The Company shall be\nentitled to injunctive relief for any or threatened breach of this Agreement, in addition to all other available remedies, including the recovery of\nmonetary damages.\nC. This Agreement shall be binding upon me and my personal representatives and successors-in-interest and shall inure to the benefit of\nCompany, its successors and assigns\nAuthorized Company Signature\nEmployee Signature\nPrinted Name\nPrinted Name\nDate\nDate\n2 EX-10.19 25 dex1019.htm FORM OF EMPLOYEE NON-DISCLOSURE AGREEMENT\nExhibit 10.19\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (hereinafter the “Agreement”) is made and entered into on May 4, 2005 by and between the Affiliated\nCompanies, which included but are not limited to, Silver Valley Capital, Sterling Mining Company, Kimberly Gold Mines, Inc. Shoshone Silver\nMining Company (hereinafter the “Company”), and Michael L. Mooney (hereinafter “Employee”).\nFOR GOOD CONSIDERATION, and in consideration of Employee’s employment or continued employment with the Company, Employee\nhereby agrees and acknowledges:\n1. That during the course of my employment with the Company, there may be disclosed to me certain trade secrets, confidential and/or\nproprietary business information of or regarding the Company; consisting of but not necessarily limited to:\na. Technical information: Assays and assay results, resource estimates and/or projections. methods, processes, formulae, compositions.\nsystems, techniques, inventions, machines, computer programs, research projects and experimental or developmental work, relating to any project or\norganization.\nb. Business information: Business and development plans, investor and customer lists, pricing data, sources of supply, financial data,\nmarketing, production, and merchandising systems or plans and operation plans, investor transactions, stock and/or warrant ownership.\n2. As used in this Agreement, the term “Confidential Information” means all Technical and/or Business information described in paragraphs\n1(a) and (b) above, and any other trade secrets and/or confidential and/or proprietary business information of or regarding the Company (including\ninformation created or developed, in whole or in part, by Employee), which is not generally known about the Company or about its business.\nConfidential Information includes not only the information itself, but also all documents containing such information, and any and all such\ninformation maintained in electronic or other form. For purposes of this Agreement, Confidential Information shall not include any information\nwhich Employee can establish was (i) was publicly known or (ii) becomes publicly known and made generally available after disclosure to\nEmployee by the Company, through means other than Employee’s breach of his/her obligations under this Agreement.\n3. Employee agrees that, except in promoting the Company’s business, and as necessary in performing the duties of his/her employment with\nthe Company, Employee shall not use in any manner, directly or indirectly, any Confidential Information. Employee agrees that he/she will never use\nany Confidential Information for his/her own benefit or for the benefit of any person or entity other than the Company, and will not permit or allow\nany Confidential Information to be used in competition with the Company. Employee acknowledges and agrees that all Confidential Information is\nthe exclusive property of the Company, and Employee has no independent or individual claim to such Confidential Information for any purpose.\nDuring his/her employment with the Company and at all times thereafter, Employee shall take all reasonable steps to prevent any unauthorized\ndisclosure or use of any and all Confidential Information. Employee further agrees to notify the Company immediately in the event that he/she\nbecomes aware of any unauthorized use or disclosure of Confidential Information.\n4. Employee understands and agrees that he/she is being employed for an indefinite term, and is an “employee at will” whose employment\nwith the Company can be terminated by either Employee or the Company at any time. for any reason, or for no reason at all, with or without advance\nnotice.\n5. All questions with regard to the interpretation and enforcement of any provision of this Agreement shall be determined in accordance with\nthe laws of the State of Idaho.\n6. I agree that upon the termination of my employment from Company:\na. I shall return to Company all documents and property of Company, even if not marked “confidential” or “proprietary,” including but\nnot necessarily limited to: drawings, blueprints, reports, manuals, correspondence, customer and/or investor lists, computer programs, and all other\nmaterials and all copies thereof relating in any way to Company’s business, or in any way obtained by me during the course of employment. I further\nagree that I shall not retain copies. notes or abstracts of the foregoing.\nb. The Company may notify any future or prospective employer or third party of the existence of this Agreement. The Company shall be\nentitled to injunctive relief for any or threatened breach of this Agreement, in addition to all other available remedies, including the recovery of\nmonetary damages.\nc. This Agreement shall be binding upon me and my personal representatives and successors-in-interest, and shall inure to the benefit of\nCompany, its successors and assigns.\nAuthorized Company Signature\nEmployee Signature\nPrinted Name\nPrinted Name\nDate\nDate\n2 ba91f088d45bf7314d395f06632193b0.pdf effective_date jurisdiction party term EX-99.(D)(10) 9 dex99d10.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(10)\nCONFIDENTIALITY AGREEMENT\nIn connection with the consideration of a possible negotiated transaction between each of the parties that have signed this agreement or its\nrespective subsidiaries, affiliates or divisions (each such party being hereinafter referred to, collectively with such subsidiaries, affiliates and\ndivisions, as a “Company”), each Company (in its capacity as a provider of information hereunder being referred to as a “Provider”) is prepared to\nmake available to the other Company (in its capacity as a recipient of information hereunder being referred to as a “Recipient”) certain information\nconcerning the business, financial condition, operations, assets and liabilities of the Provider. As a condition to such information being provided to\neach Recipient and its Recipient Representatives (as hereinafter defined), each Recipient agrees to treat any information concerning the Provider\n(whether prepared by the Provider, such Recipient’s Representatives or otherwise and irrespective of the form of communication) which is furnished\nto the Recipient and such Recipient’s Representatives now or in the future by or on behalf of the Provider (herein collectively referred to, with\nrespect to information furnished by or on behalf of either Company in its capacity as a Provider to the other Company in its capacity as a Recipient,\nas the “Evaluation Material”) in accordance with the provisions of this agreement, and to take or abstain from taking certain other actions as\nhereinafter set forth. As used in this letter, a Recipient’s “Representatives” shall include the directors, officers, employees, agents, partners or\nadvisors of such Recipient (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) and those of such\nRecipient’s parent company, subsidiaries and affiliates. Notwithstanding any other provision hereof, each Company reserves the right not to make\navailable hereunder any information, the provision of which is determined by it, in its sole discretion, to be inadvisable or inappropriate.\nThe term “Evaluation Material” also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents\nprepared by either Recipient or such Recipient’s Representatives which contain, reflect or are based upon, in whole or in part, the information\nfurnished to such Recipient or such Recipient’s Representatives pursuant hereto. The term Evaluation Material does not include information which\n(1) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or such Recipient’s Representatives, (ii) was\nwithin the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider pursuant hereto, provided that the\nsource of such information was not known by the Recipient to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation of confidentiality to, the Provider or any other party with respect to such information or (iii) becomes available to the Recipient on a non-\nconfidential basis from a source other than the Provider or any of its directors, officers, employees, agents or advisors (including, without limitation,\nattorneys, accountants, consultants, bankers and financial advisors) (collectively, “Provider Representatives”), provided that such source is not bound\nby a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider or any other party with\nrespect to such information. Notwithstanding any other provision hereof, each Provider reserves the right not to make available hereunder any\ninformation, the provision of which is determined by it, in its sole discretion, to be inadvisable or inappropriate.\nEach Recipient hereby agrees that such Recipient and such Recipient’s Representatives shall use the Evaluation Material solely for the purpose\nof evaluating a possible negotiated transaction between the Companies and for no other purpose, that the Evaluation Material will be kept\nconfidential and that the Recipient and such Recipient’s Representatives will not disclose any of the Evaluation Material in any manner whatsoever;\nprovided, however, that (i) the Recipient may make any disclosure of such information to which the Provider gives its prior written consent and\n(ii) any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of\nevaluating a possible negotiated transaction between the Companies, who are provided with a copy of this agreement and who agree to be bound by\nthe terms hereof to the same extent as if they were such Recipient. In any event, each Recipient agrees to undertake reasonable precautions to\nsafeguard and protect the confidentiality of the Evaluation Material, to accept responsibility for any breach of this agreement by any of such\nRecipient’s Representatives, and at such Recipient’s sole expense to take all reasonable measures (including but not limited to court proceedings) to\nrestrain such Recipient’s Representatives from prohibited or unauthorized disclosure or uses of the Evaluation Material.\n1\nIn addition, each Recipient agrees that, without the prior written consent of the Provider, such Recipient and such Recipient’s Representatives\nwill not disclose to any other person the fact that the Evaluation Material has been made available to such Recipient, that discussions or negotiations\nare taking place concerning a possible transaction between the Companies or any of the terms, conditions or other facts with respect thereto\n(including the status thereof) provided, however, that such Recipient may make such disclosure if the Provider has already done so or it has received\nthe written opinion of its outside counsel that such disclosure must be made by it in order that it not commit a violation of law. Without limiting the\ngenerality of the foregoing, each Recipient further agrees that, without the prior written consent of the Provider, it will not, directly or indirectly,\nenter into any agreement, arrangement or understanding, or any discussions which might lead to such agreement, arrangement or understanding, with\nany person regarding a possible transaction between the Companies. The term person as used in this agreement shall be broadly interpreted to\ninclude the media and any corporation, partnership, group, individual or other entity.\nIn the event that either Recipient or any of such Recipient’s Representatives are requested or required (by oral questions, interrogatories,\nrequests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the\nEvaluation Material, such Recipient shall provide the Provider with prompt written notice of any such request or requirement so that the Provider\nmay seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this agreement. If, in the absence of a\nprotective order or other remedy or the receipt of a waiver by the Provider, the Recipient or any of such Recipient’s Representatives are nonetheless,\nin the opinion of counsel, legally compelled to disclose Evaluation Material such Recipient or such Recipient’s Representatives may, without\nliability hereunder, disclose only that portion of the Evaluation Material which such counsel advises the Recipient is legally required to be disclosed\nIf either Company decides that it does not wish to proceed with a transaction with the other, it will promptly inform the other of that decision.\nIn that case, or at any time upon the request of either Company for any reason, the other Company will promptly [deliver to the notifying or\nrequesting Company all Evaluation Material (and all copies thereof) furnished to the notified or requested Company in its capacity as a Recipient or\nsuch Recipient’s Representatives by or on behalf of the notifying or requesting Company in its capacity as a Provider pursuant hereto. In the event of\nsuch a decision or request, all [other] Evaluation Material prepared by the notified or requested Company in its capacity as a Recipient or such\nRecipient’s Representatives shall, at the Recipient’s option, be destroyed or returned and no copy thereof shall be retained [except for one archival\ncopy which may be retained by such recipient’s outside counsel or in-house general counsel] and the Recipient shall provide to the notifying or\nrequesting Company a certificate of compliance with this sentence. Notwithstanding the return or destruction of the Evaluation Material, the notified\nor requested Company in its capacity as a Recipient and such Recipient’s Representatives will continue to be bound by such Recipient’s respective\nobligations of confidentiality and other obligations hereunder.\nEach Company understands and acknowledges that neither Company, in its capacity as a Provider, nor such Provider’s Representatives makes\nany representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such\nProvider and shall have no liability to the other.\nIn consideration of the Evaluation Material being furnished to a Recipient, the Recipient hereby agrees that, for a period of two years, neither it\nnor any of its affiliates will solicit to employ any of the officers or employees of the Provider with whom it has had contact or who was specifically\nidentified to it by the Provider or any of such Provider’s Representatives for purposes hereof during the period of the Recipient’s investigation of the\nProvider, so long as they are employed by the Provider, without obtaining the prior written consent of the Provider. Such two-year period shall be\nmeasured from, and expire two years following, the later of (i) the date of this agreement, (ii) the date of last contact by the Recipient or any of such\nRecipient’s Representatives with the applicable officer or employee or (iii) the date on which the applicable officer or employee was identified to the\nRecipient or any of such Recipient’s Representatives by the Provider or any of its Representatives for purposes hereof. This restriction shall not\napply to employees of Provider who respond to a general solicitation for employment published or posted by Recipient.\n2\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that\nthe Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of both\nCompanies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its\ncontinued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by\neither Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain\nentitled to such protection under these privileges, this agreement, and under the joint defense doctrine.\nEach Company, in its capacity as a Recipient, acknowledges and agrees that such Recipient is aware (and that such Recipient’s Representatives\nare aware or, upon receipt of any Evaluation Material, will be advised by such Recipient) of the restrictions imposed by the United States federal\nsecurities laws and other applicable foreign and domestic laws on a person possessing material non-public information about a public company and\nthat such Recipient and such Recipient’s Representatives will comply with such laws.\nEach Company agrees that, for a period of three years from the date of this agreement, unless such shall have been specifically invited in\nwriting by the other Company, neither the agreeing Company nor any of its affiliates (as such term is defined under the Securities Exchange Act of\n1934, as amended (the “1934 Act”)) or persons who are Recipient Representatives or Provider Representatives with respect to the agreeing\nCompany will in any manner, directly or indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or\nparticipate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in,\n(1) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Company or any of its subsidiaries, (ii) any tender or\nexchange offer, merger or other business combination involving the other Company or any of its subsidiaries, (iii) any recapitalization, restructuring,\nliquidation, dissolution or other extraordinary transaction with respect to the other Company or any of its subsidiaries, or (iv) any “solicitation” of\n“proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the\nother Company; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) with respect to the securities of the other\nCompany; (c) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the\nother Company; (d) take any action which might force the other Company to make a public announcement regarding any of the types of matters set\nforth in (a) above; or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing.\nEach Company understands and agrees that no contract or agreement providing for any transaction between the Companies shall be deemed to\nexist between the Companies unless and until a final definitive agreement has been executed and delivered, and each Company hereby waives, in\nadvance, any claims (including, without limitation, breach of contract but excluding any claims arising from a breach of this Confidentiality\nAgreement) in connection with any transaction involving the other Company unless and until both Companies shall have entered into a final\ndefinitive agreement. Each Company also agrees that unless and until a final definitive agreement regarding a transaction between the Companies\nhas been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such a transaction by\nvirtue of this agreement except for the matters specifically agreed to herein. Each Company further acknowledges and agrees that the other Company\nreserves the right, in its sole discretion, to reject any and all proposals made by the agreeing Company or any of the persons who are Recipient\nRepresentatives or Provider Representatives with respect to the Company with regard to a transaction between the Companies, and to terminate\ndiscussions and negotiations with the agreeing Company at any time. Each Company further agrees that (i) the other Company and the persons who\nare Recipient Representatives or Provider Representatives with respect to the other Company shall be free to conduct any process for any transaction\ninvolving the other Company, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other\ninterested parties and entering into a definitive agreement therewith without prior notice to the agreeing Company or any other person), (ii) any\nprocedures relating to such process or transaction may be changed at any time without notice to the agreeing Company or any other person and\n(iii) the agreeing Company shall not have any claims whatsoever against the other Company, the persons who are Recipient Representatives or\nProvider Representatives with respect to the other Company or any of their respective directors, officers, stockholders, owners, affiliates or agents\narising out of or relating to any transaction involving the other Company (other than those as against the parties to a definitive agreement between\nthe Companies, including this\n3\nConfidentiality Agreement in accordance with the term thereof) nor, unless a definitive agreement is entered into with the agreeing Company, against\nany third party with whom a transaction is entered into. Neither this paragraph nor any other provision in this agreement can be waived or amended\nin favor of either Company except by written consent of the other Company, which consent shall specifically refer to this paragraph (or such\nprovision) and explicitly make such waiver or amendment.\nIt is understood and agreed that no failure or delay by either Company in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power\nor privilege hereunder.\nIt is further understood and agreed that money damages would not be a sufficient remedy for any breach of this agreement by either Company\nor any of its Representatives and that the Company against which such breach is committed shall be entitled to seek equitable relief, including\ninjunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach\nby either Company of this agreement but shall be in addition to all other remedies available at law or equity to the Company against which such\nbreach is committed. In the event of litigation relating to this agreement, if a court of competent jurisdiction determines that either Company or any\nof the persons who are Recipient Representatives or Provider Representatives with respect to such Company has breached this agreement, then the\nCompany Recipient Representatives or Provider Representatives of which, is determined to have so breached shall be liable and pay to the other\nCompany the reasonable legal fees incurred by the other Company in connection with such litigation, including any appeal therefrom.\nThis agreement is for the benefit of the each Company, the persons who are Recipient Representatives or Provider Representatives with respect\nto such Company and their respective, directors, officers, stockholders, owners, affiliates, and agents, and shall be governed by and construed in\naccordance with the laws of the State of Washington (the “Subject State”) applicable to agreements made and to be performed entirely within such\nState. Each Company also hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the Subject State\nlocated within the County of King and of the United States of America located in the Western District of the Subject State for any actions, suits or\nproceedings arising out of or relating to this agreement (and each Company agrees not to commence any action, suit or proceeding relating thereto\nexcept in such courts, and further agrees that service of any process, summons, notice or document by U.S . registered mail to such Company’s\naddress set forth below shall be effective service of process for any action, suit or proceeding brought against such Company in any such court).\nEach Company hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of\nthis agreement , in the courts of the Subject State or the United States of America located in the Subject State, and hereby further irrevocably and\nunconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been\nbrought in an inconvenient forum.\nThis agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements,\nunderstandings, arrangements and discussions between the Companies regarding such subject matter.\nThis agreement may be signed in counterparts, each of which shall be deemed an original but all of which shall be deemed to constitute a\nsingle instrument.\nIN WITNESS WHEREOF, each Company has caused this agreement to be signed by its duly authorized representatives as of the date written\nbelow.\nDate: 8/14/2007\nPhotoWorks, Inc:\nAmerican Greetings Corporation:\nSuite 200, 71 Columbia Street\nSeattle, WA 98104\nADDRESS FOR NOTICE:\nOne American Road\nBrooklyn, Ohio 44144\nAttn: General Counsel\nBy: /s/ Andrew Wood\nBy: /s/ Catherine M. Kilbane\nName: Andrew Wood\nName: Catherine M. Kilbane\nTitle: Chief Executive Officer\nTitle: Senior Vice President,\nGeneral Counsel and Secretary\n4 EX-99.(D)(10) 9 dex99d10.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(10)\nCONFIDENTIALITY AGREEMENT\nIn connection with the consideration of a possible negotiated transaction between each of the parties that have signed this agreement or its\nrespective subsidiaries, affiliates or divisions (each such party being hereinafter referred to, collectively with such subsidiaries, affiliates and\ndivisions, as a “Company”), each Company (in its capacity as a provider of information hereunder being referred to as a “Provider”) is prepared to\nmake available to the other Company (in its capacity as a recipient of information hereunder being referred to as a “Recipient”) certain information\nconcerning the business, financial condition, operations, assets and liabilities of the Provider. As a condition to such information being provided to\neach Recipient and its Recipient Representatives (as hereinafter defined), each Recipient agrees to treat any information concerning the Provider\n(whether prepared by the Provider, such Recipient’s Representatives or otherwise and irrespective of the form of communication) which is furnished\nto the Recipient and such Recipient’s Representatives now or in the future by or on behalf of the Provider (herein collectively referred to, with\nrespect to information furnished by or on behalf of either Company in its capacity as a Provider to the other Company in its capacity as a Recipient,\nas the “Evaluation Material”) in accordance with the provisions of this agreement, and to take or abstain from taking certain other actions as\nhereinafter set forth. As used in this letter, a Recipient’s “Representatives” shall include the directors, officers, employees, agents, partners or\nadvisors of such Recipient (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) and those of such\nRecipient’s parent company, subsidiaries and affiliates. Notwithstanding any other provision hereof, each Company reserves the right not to make\navailable hereunder any information, the provision of which is determined by it, in its sole discretion, to be inadvisable or inappropriate.\nThe term “Evaluation Material” also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents\nprepared by either Recipient or such Recipient’s Representatives which contain, reflect or are based upon, in whole or in part, the information\nfurnished to such Recipient or such Recipient’s Representatives pursuant hereto. The term Evaluation Material does not include information which\n(1) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or such Recipient’s Representatives, (ii) was\nwithin the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider pursuant hereto, provided that the\nsource of such information was not known by the Recipient to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation of confidentiality to, the Provider or any other party with respect to such information or (iii) becomes available to the Recipient on a non-\nconfidential basis from a source other than the Provider or any of its directors, officers, employees, agents or advisors (including, without limitation,\nattorneys, accountants, consultants, bankers and financial advisors) (collectively, “Provider Representatives”), provided that such source is not bound\nby a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider or any other party with\nrespect to such information. Notwithstanding any other provision hereof, each Provider reserves the right not to make available hereunder any\ninformation, the provision of which is determined by it, in its sole discretion, to be inadvisable or inappropriate.\nEach Recipient hereby agrees that such Recipient and such Recipient’s Representatives shall use the Evaluation Material solely for the purpose\nof evaluating a possible negotiated transaction between the Companies and for no other purpose, that the Evaluation Material will be kept\nconfidential and that the Recipient and such Recipient’s Representatives will not disclose any of the Evaluation Material in any manner whatsoever;\nprovided, however, that (i) the Recipient may make any disclosure of such information to which the Provider gives its prior written consent and\n(ii) any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of\nevaluating a possible negotiated transaction between the Companies, who are provided with a copy of this agreement and who agree to be bound by\nthe terms hereof to the same extent as if they were such Recipient. In any event, each Recipient agrees to undertake reasonable precautions to\nsafeguard and protect the confidentiality of the Evaluation Material, to accept responsibility for any breach of this agreement by any of such\nRecipient’s Representatives, and at such Recipient’s sole expense to take all reasonable measures (including but not limited to court proceedings) to\nrestrain such Recipient’s Representatives from prohibited or unauthorized disclosure or uses of the Evaluation Material.\n1\nIn addition, each Recipient agrees that, without the prior written consent of the Provider, such Recipient and such Recipient’s Representatives\nwill not disclose to any other person the fact that the Evaluation Material has been made available to such Recipient, that discussions or negotiations\nare taking place concerning a possible transaction between the Companies or any of the terms, conditions or other facts with respect thereto\n(including the status thereof) provided, however, that such Recipient may make such disclosure if the Provider has already done so or it has received\nthe written opinion of its outside counsel that such disclosure must be made by it in order that it not commit a violation of law. Without limiting the\ngenerality of the foregoing, each Recipient further agrees that, without the prior written consent of the Provider, it will not, directly or indirectly,\nenter into any agreement, arrangement or understanding, or any discussions which might lead to such agreement, arrangement or understanding, with\nany person regarding a possible transaction between the Companies. The term person as used in this agreement shall be broadly interpreted to\ninclude the media and any corporation, partnership, group, individual or other entity.\nIn the event that either Recipient or any of such Recipient’s Representatives are requested or required (by oral questions, interrogatories,\nrequests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the\nEvaluation Material, such Recipient shall provide the Provider with prompt written notice of any such request or requirement so that the Provider\nmay seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this agreement. If, in the absence of a\nprotective order or other remedy or the receipt of a waiver by the Provider, the Recipient or any of such Recipient’s Representatives are nonetheless,\nin the opinion of counsel, legally compelled to disclose Evaluation Material such Recipient or such Recipient’s Representatives may, without\nliability hereunder, disclose only that portion of the Evaluation Material which such counsel advises the Recipient is legally required to be disclosed\nIf either Company decides that it does not wish to proceed with a transaction with the other, it will promptly inform the other of that decision.\nIn that case, or at any time upon the request of either Company for any reason, the other Company will promptly [deliver to the notifying or\nrequesting Company all Evaluation Material (and all copies thereof) furnished to the notified or requested Company in its capacity as a Recipient or\nsuch Recipient’s Representatives by or on behalf of the notifying or requesting Company in its capacity as a Provider pursuant hereto. In the event of\nsuch a decision or request, all [other] Evaluation Material prepared by the notified or requested Company in its capacity as a Recipient or such\nRecipient’s Representatives shall, at the Recipient’s option, be destroyed or returned and no copy thereof shall be retained [except for one archival\ncopy which may be retained by such recipient’s outside counsel or in-house general counsel] and the Recipient shall provide to the notifying or\nrequesting Company a certificate of compliance with this sentence. Notwithstanding the return or destruction of the Evaluation Material, the notified\nor requested Company in its capacity as a Recipient and such Recipient’s Representatives will continue to be bound by such Recipient’s respective\nobligations of confidentiality and other obligations hereunder.\nEach Company understands and acknowledges that neither Company, in its capacity as a Provider, nor such Provider’s Representatives makes\nany representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such\nProvider and shall have no liability to the other.\nIn consideration of the Evaluation Material being furnished to a Recipient, the Recipient hereby agrees that, for a period of two years, neither it\nnor any of its affiliates will solicit to employ any of the officers or employees of the Provider with whom it has had contact or who was specifically\nidentified to it by the Provider or any of such Provider’s Representatives for purposes hereof during the period of the Recipient’s investigation of the\nProvider, so long as they are employed by the Provider, without obtaining the prior written consent of the Provider. Such two-year period shall be\nmeasured from, and expire two years following, the later of (i) the date of this agreement, (ii) the date of last contact by the Recipient or any of such\nRecipient’s Representatives with the applicable officer or employee or (iii) the date on which the applicable officer or employee was identified to the\nRecipient or any of such Recipient’s Representatives by the Provider or any of its Representatives for purposes hereof. This restriction shall not\napply to employees of Provider who respond to a general solicitation for employment published or posted by Recipient.\n2\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that\nthe Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of both\nCompanies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its\ncontinued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by\neither Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain\nentitled to such protection under these privileges, this agreement, and under the joint defense doctrine.\nEach Company, in its capacity as a Recipient, acknowledges and agrees that such Recipient is aware (and that such Recipient’s Representatives\nare aware or, upon receipt of any Evaluation Material, will be advised by such Recipient) of the restrictions imposed by the United States federal\nsecurities laws and other applicable foreign and domestic laws on a person possessing material non-public information about a public company and\nthat such Recipient and such Recipient’s Representatives will comply with such laws.\nEach Company agrees that, for a period of three years from the date of this agreement, unless such shall have been specifically invited in\nwriting by the other Company, neither the agreeing Company nor any of its affiliates (as such term is defined under the Securities Exchange Act of\n1934, as amended (the “1934 Act”)) or persons who are Recipient Representatives or Provider Representatives with respect to the agreeing\nCompany will in any manner, directly or indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or\nparticipate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in,\n(1) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Company or any of its subsidiaries, (ii) any tender or\nexchange offer, merger or other business combination involving the other Company or any of its subsidiaries, (iii) any recapitalization, restructuring,\nliquidation, dissolution or other extraordinary transaction with respect to the other Company or any of its subsidiaries, or (iv) any “solicitation” of\n“proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the\nother Company; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) with respect to the securities of the other\nCompany; (c) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the\nother Company; (d) take any action which might force the other Company to make a public announcement regarding any of the types of matters set\nforth in (a) above; or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing.\nEach Company understands and agrees that no contract or agreement providing for any transaction between the Companies shall be deemed to\nexist between the Companies unless and until a final definitive agreement has been executed and delivered, and each Company hereby waives, in\nadvance, any claims (including, without limitation, breach of contract but excluding any claims arising from a breach of this Confidentiality\nAgreement) in connection with any transaction involving the other Company unless and until both Companies shall have entered into a final\ndefinitive agreement. Each Company also agrees that unless and until a final definitive agreement regarding a transaction between the Companies\nhas been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such a transaction by\nvirtue of this agreement except for the matters specifically agreed to herein. Each Company further acknowledges and agrees that the other Company\nreserves the right, in its sole discretion, to reject any and all proposals made by the agreeing Company or any of the persons who are Recipient\nRepresentatives or Provider Representatives with respect to the Company with regard to a transaction between the Companies, and to terminate\ndiscussions and negotiations with the agreeing Company at any time. Each Company further agrees that (i) the other Company and the persons who\nare Recipient Representatives or Provider Representatives with respect to the other Company shall be free to conduct any process for any transaction\ninvolving the other Company, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other\ninterested parties and entering into a definitive agreement therewith without prior notice to the agreeing Company or any other person), (ii) any\nprocedures relating to such process or transaction may be changed at any time without notice to the agreeing Company or any other person and\n(iii) the agreeing Company shall not have any claims whatsoever against the other Company, the persons who are Recipient Representatives or\nProvider Representatives with respect to the other Company or any of their respective directors, officers, stockholders, owners, affiliates or agents\narising out of or relating to any transaction involving the other Company (other than those as against the parties to a definitive agreement between\nthe Companies, including this\nConfidentiality Agreement in accordance with the term thereof) nor, unless a definitive agreement is entered into with the agreeing Company, against\nany third party with whom a transaction is entered into. Neither this paragraph nor any other provision in this agreement can be waived or amended\nin favor of either Company except by written consent of the other Company, which consent shall specifically refer to this paragraph (or such\nprovision) and explicitly make such waiver or amendment.\nIt is understood and agreed that no failure or delay by either Company in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power\nor privilege hereunder.\nIt is further understood and agreed that money damages would not be a sufficient remedy for any breach of this agreement by either Company\nor any of its Representatives and that the Company against which such breach is committed shall be entitled to seek equitable relief, including\ninjunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach\nby either Company of this agreement but shall be in addition to all other remedies available at law or equity to the Company against which such\nbreach is committed. In the event of litigation relating to this agreement, if a court of competent jurisdiction determines that either Company or any\nof the persons who are Recipient Representatives or Provider Representatives with respect to such Company has breached this agreement, then the\nCompany Recipient Representatives or Provider Representatives of which, is determined to have so breached shall be liable and pay to the other\nCompany the reasonable legal fees incurred by the other Company in connection with such litigation, including any appeal therefrom.\nThis agreement is for the benefit of the each Company, the persons who are Recipient Representatives or Provider Representatives with respect\nto such Company and their respective, directors, officers, stockholders, owners, affiliates, and agents, and shall be governed by and construed in\naccordance with the laws of the State of Washington (the “Subject State”) applicable to agreements made and to be performed entirely within such\nState. Each Company also hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the Subject State\nlocated within the County of King and of the United States of America located in the Western District of the Subject State for any actions, suits or\nproceedings arising out of or relating to this agreement (and each Company agrees not to commence any action, suit or proceeding relating thereto\nexcept in such courts, and further agrees that service of any process, summons, notice or document by U.S. registered mail to such Company’s\naddress set forth below shall be effective service of process for any action, suit or proceeding brought against such Company in any such court).\nEach Company hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of\nthis agreement , in the courts of the Subject State or the United States of America located in the Subject State, and hereby further irrevocably and\nunconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been\nbrought in an inconvenient forum.\nThis agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements,\nunderstandings, arrangements and discussions between the Companies regarding such subject matter.\nThis agreement may be signed in counterparts, each of which shall be deemed an original but all of which shall be deemed to constitute a\nsingle instrument.\nIN WITNESS WHEREOF, each Company has caused this agreement to be signed by its duly authorized representatives as of the date written\nbelow.\nDate: 8/14/2007\nPhotoWorks, Inc: American Greetings Corporation:\nSuite 200, 71 Columbia Street ADDRESS FOR NOTICE:\nSeattle, WA 98104 One American Road\nBrooklyn, Ohio 44144\nAttn: General Counsel\nBy: /s/ Andrew Wood By: /s/ Catherine M. Kilbane\nName: Andrew Wood Name: Catherine M. Kilbane\nTitle: Chief Executive Officer Title: Senior Vice President,\nGeneral Counsel and Secretary EX-99.(D)(10) 9 dex99d10.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(10)\nCONFIDENTIALITY AGREEMENT\nIn connection with the consideration of a possible negotiated transaction between each of the parties that have signed this agreement or its\nrespective subsidiaries, affiliates or divisions (each such party being hereinafter referred to, collectively with such subsidiaries, affiliates and\ndivisions, as a "Company"), each Company (in its capacity as a provider of information hereunder being referred to as a "Provider") is prepared to\nmake\navailable to the other Company (in its capacity as a recipient of information hereunder being referred to as a "Recipient") certain information\nconcerning the business, financial condition, operations, assets and liabilities of the Provider. As a condition to such information being provided to\neach Recipient and its Recipient Representatives (as hereinafter defined), each Recipient agrees to treat any information concerning the Provider\n(whether prepared by the Provider, such Recipient's Representatives or otherwise and irrespective of the form of communication) which is furnished\nto the Recipient and such Recipient's Representatives now or in the future by or on behalf of the Provider (herein collectively referred to, with\nrespect to information furnished by or on behalf of either Company in its capacity as a Provider to the other Company in its capacity as a Recipient,\nas\nthe "Evaluation Material") in accordance with the provisions of this agreement, and to take or abstain from taking certain other actions as\nhereinafter set forth. As used in this letter, a Recipient's "Representatives" shall include the directors, officers, employees, agents, partners or\nadvisors of such Recipient (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) and those of such\nRecipient's parent company, subsidiaries and affiliates. Notwithstanding any other provision hereof, each Company reserves the right not to make\navailable hereunder any information, the provision of which is determined by it, in its sole discretion, to be inadvisable or inappropriate.\nThe term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents\nprepared by either Recipient or such Recipient's Representatives which contain, reflect or are based upon, in whole or in part, the information\nfurnished to such Recipient or such Recipient's Representatives pursuant hereto. The term Evaluation Material does not include information which\n(1) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or such Recipient's Representatives, (ii) was\nwithin the Recipient's possession prior to its being furnished to the Recipient by or on behalf of the Provider pursuant hereto, provided that the\nsource of such information was not known by the Recipient to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation of confidentiality to, the Provider or any other party with respect to such information or (iii) becomes available to the Recipient on a non-\nconfidential basis from a source other than the Provider or any of its directors, officers, employees, agents or advisors (including, without limitation,\nattorneys, accountants, consultants, bankers and financial advisors) (collectively, "Provider Representatives"), provided that such source is not bound\nby a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider or any other party with\nrespect to such information. Notwithstanding any other provision hereof, each Provider reserves the right not to make available hereunder any\ninformation, the provision of which is determined by it, in its sole discretion, to be inadvisable or inappropriate.\nEach Recipient hereby agrees that such Recipient and such Recipient's Representatives shall use the Evaluation Material solely for the purpose\nof evaluating a possible negotiated transaction between the Companies and for no other purpose, that the Evaluation Material will be kept\nconfidential and that the Recipient and such Recipient's Representatives will not disclose any of the Evaluation Material in any manner whatsoever;\nprovided, however, that (i) the Recipient may make any disclosure of such information to which the Provider gives its prior written consent and\n(ii) any of such information may be disclosed to the Recipient's Representatives who need to know such information for the sole purpose of\nevaluating a possible negotiated transaction between the Companies, who are provided with a copy of this agreement and who agree to be bound by\nthe terms hereof to the same extent as if they were such Recipient. In any event, each Recipient agrees to undertake reasonable precautions to\nsafeguard and protect the confidentiality of the Evaluation Material, to accept responsibility for any breach of this agreement by any of such\nRecipient's Representatives, and at such Recipient's sole expense to take all reasonable measures (including but not limited to court proceedings) to\nrestrain such Recipient's Representatives from prohibited or unauthorized disclosure or uses of the Evaluation Material.\n1\nIn addition, each Recipient agrees that, without the prior written consent of the Provider, such Recipient and such Recipient's Representatives\nwill not disclose to any other person the fact that the Evaluation Material has been made available to such Recipient, that discussions or negotiations\nare taking place concerning a possible transaction between the Companies or any of the terms, conditions or other facts with respect thereto\n(including the status thereof) provided, however, that such Recipient may make such disclosure if the Provider has already done so or it has received\nthe written opinion of its outside counsel that such disclosure must be made by it in order that it not commit a violation of law. Without limiting the\ngenerality of the foregoing, each Recipient further agrees that, without the prior written consent of the Provider, it will not, directly or indirectly,\nenter into any agreement, arrangement or understanding, or any discussions which might lead to such agreement, arrangement or understanding, with\nany person regarding a possible transaction between the Companies. The term person as used in this agreement shall be broadly interpreted to\ninclude the media and any corporation, partnership, group, individual or other entity.\nIn the event that either Recipient or any of such Recipient's Representatives are requested or required (by oral questions, interrogatories,\nrequests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the\nEvaluation Material, such Recipient shall provide the Provider with prompt written notice of any such request or requirement so that the Provider\nmay seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this agreement. If, in the absence of\na\nprotective order or other remedy or the receipt of a waiver by the Provider, the Recipient or any of such Recipient's Representatives are nonetheless,\nin\nthe opinion of counsel, legally compelled to disclose Evaluation Material such Recipient or such Recipient's Representatives may, without\nliability hereunder, disclose only that portion of the Evaluation Material which such counsel advises the Recipient is legally required to be disclosed\nIf either Company decides that it does not wish to proceed with a transaction with the other, it will promptly inform the other of that decision.\nIn that case, or at any time upon the request of either Company for any reason, the other Company will promptly [deliver to the notifying or\nrequesting Company all Evaluation Material (and all copies thereof) furnished to the notified or requested Company in its capacity as a Recipient or\nsuch Recipient's Representatives by or on behalf of the notifying or requesting Company in its capacity as a Provider pursuant hereto. In the event of\nsuch a decision or request, all [other] Evaluation Material prepared by the notified or requested Company in its capacity as a Recipient or such\nRecipient's Representatives shall, at the Recipient's option, be destroyed or returned and no copy thereof shall be retained [except for one archival\ncopy which may be retained by such recipient's outside counsel or in-house general counsel] and the Recipient shall provide to the notifying or\nrequesting Company a certificate of compliance with this sentence. Notwithstanding the return or destruction of the Evaluation Material, the notified\nor requested Company in its capacity as a Recipient and such Recipient's Representatives will continue to be bound by such Recipient's respective\nobligations of confidentiality and other obligations hereunder.\nEach Company understands and acknowledges that neither Company, in its capacity as a Provider, nor such Provider's Representatives makes\nany representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such\nProvider and shall have no liability to the other.\nIn consideration of the Evaluation Material being furnished to a Recipient, the Recipient hereby agrees that, for a period of two years, neither it\nnor any of its affiliates will solicit to employ any of the officers or employees of the Provider with whom it has had contact or who was specifically\nidentified to it by the Provider or any of such Provider's Representatives for purposes hereof during the period of the Recipient's investigation of the\nProvider, so long as they are employed by the Provider, without obtaining the prior written consent of the Provider. Such two-year period shall be\nmeasured from, and expire two years following, the later of (i) the date of this agreement, (ii) the date of last contact by the Recipient or any of such\nRecipient's Representatives with the applicable officer or employee or (iii) the date on which the applicable officer or employee was identified to the\nRecipient or any of such Recipient's Representatives by the Provider or any of its Representatives for purposes hereof. This restriction shall not\napply to employees of Provider who respond to a general solicitation for employment published or posted by Recipient.\n2\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that\nthe Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of both\nCompanies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its\ncontinued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by\neither Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain\nentitled to such protection under these privileges, this agreement, and under the joint defense doctrine.\nEach Company, in its capacity as a Recipient, acknowledges and agrees that such Recipient is aware (and that such Recipient's Representatives\nare aware or, upon receipt of any Evaluation Material, will be advised by such Recipient) of the restrictions imposed by the United States federal\nsecurities laws and other applicable foreign and domestic laws on a person possessing material non-public information about a public company and\nthat such Recipient and such Recipient's Representatives will comply with such laws.\nEach Company agrees that, for a period of three years from the date of this agreement, unless such shall have been specifically invited in\nwriting by the other Company, neither the agreeing Company nor any of its affiliates (as such term is defined under the Securities Exchange Act of\n1934, as amended (the "1934 Act")) or persons who are Recipient Representatives or Provider Representatives with respect to the agreeing\nCompany will in any manner, directly or indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or\nparticipate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in,\n(1) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Company or any of its subsidiaries, (ii) any tender or\nexchange offer, merger or other business combination involving the other Company or any of its subsidiaries, (iii) any recapitalization, restructuring,\nliquidation, dissolution or other extraordinary transaction with respect to the other Company or any of its subsidiaries, or (iv) any "solicitation"\nof\n"proxies" (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the\nother Company; (b) form, join or in any way participate in a "group" (as defined under the 1934 Act) with respect to the securities of the other\nCompany; (c) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the\nother Company; (d) take any action which might force the other Company to make a public announcement regarding any of the types of matters set\nforth in (a) above; or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing.\nEach Company understands and agrees that no contract or agreement providing for any transaction between the Companies shall be deemed to\nexist between the Companies unless and until a final definitive agreement has been executed and delivered, and each Company hereby waives, in\nadvance, any claims (including, without limitation, breach of contract but excluding any claims arising from a breach of this Confidentiality\nAgreement) in connection with any transaction involving the other Company unless and until both Companies shall have entered into a final\ndefinitive agreement. Each Company also agrees that unless and until a final definitive agreement regarding a transaction between the Companies\nhas been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such a transaction\nby\nvirtue of this agreement except for the matters specifically agreed to herein. Each Company further acknowledges and agrees that the other Company\nreserves the right, in its sole discretion, to reject any and all proposals made by the agreeing Company or any of the persons who are Recipient\nRepresentatives or Provider Representatives with respect to the Company with regard to a transaction between the Companies, and to terminate\ndiscussions and negotiations with the agreeing Company at any time. Each Company further agrees that (i) the other Company and the persons who\nare\nRecipient\nRepresentatives\nor\nProvider\nRepresentatives\nwith\nrespect\nto\nthe\nother\nCompany\nshall\nbe\nfree\nto\nconduct\nany\nprocess\nfor\nany\ntransaction\ninvolving the other Company, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other\ninterested parties and entering into a definitive agreement therewith without prior notice to the agreeing Company or any other person), (ii) any\nprocedures relating to such process or transaction may be changed at any time without notice to the agreeing Company or any other person and\n(iii) the agreeing Company shall not have any claims whatsoever against the other Company, the persons who are Recipient Representatives or\nProvider Representatives with respect to the other Company or any of their respective directors, officers, stockholders, owners, affiliates or agents\narising out of or relating to any transaction involving the other Company (other than those as against the parties to a definitive agreement between\nthe Companies, including this\n3\nConfidentiality Agreement in accordance with the term thereof) nor, unless a definitive agreement is entered into with the agreeing Company, against\nany third party with whom a transaction is entered into. Neither this paragraph nor any other provision in this agreement can be waived or amended\nin favor of either Company except by written consent of the other Company, which consent shall specifically refer to this paragraph (or such\nprovision) and explicitly make such waiver or amendment.\nIt\nis\nunderstood\nand\nagreed\nthat\nno\nfailure\nor\ndelay\nby\neither\nCompany\nin\nexercising\nany\nright,\npower\nor\nprivilege\nhereunder\nshall\noperate\nas\na\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power\nor privilege hereunder.\nIt is further understood and agreed that money damages would not be a sufficient remedy for any breach of this agreement by either Company\nor any of its Representatives and that the Company against which such breach is committed shall be entitled to seek equitable relief, including\ninjunction\nand\nspecific\nperformance,\nas\na\nremedy\nfor\nany\nsuch\nbreach.\nSuch\nremedies\nshall\nnot\nbe\ndeemed\nto\nbe\nthe\nexclusive\nremedies\nfor\na\nbreach\nby either Company of this agreement but shall be in addition to all other remedies available at law or equity to the Company against which such\nbreach is committed. In the event of litigation relating to this agreement, if a court of competent jurisdiction determines that either Company or any\nof the persons who are Recipient Representatives or Provider Representatives with respect to such Company has breached this agreement, then the\nCompany Recipient Representatives or Provider Representatives of which, is determined to have so breached shall be liable and pay to the other\nCompany the reasonable legal fees incurred by the other Company in connection with such litigation, including any appeal therefrom.\nThis agreement is for the benefit of the each Company, the persons who are Recipient Representatives or Provider Representatives with respect\nto such Company and their respective, directors, officers, stockholders, owners, affiliates, and agents, and shall be governed by and construed in\naccordance\nwith\nthe\nlaws\nof\nthe\nState\nof\nWashington\n(the\n"Subject\nState")\napplicable\nto\nagreements\nmade\nand\nto\nbe\nperformed\nentirely\nwithin\nsuch\nState. Each Company also hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the Subject State\nlocated within the County of King and of the United States of America located in the Western District of the Subject State for any actions, suits or\nproceedings arising out of or relating to this agreement (and each Company agrees not to commence any action, suit or proceeding relating thereto\nexcept in such courts, and further agrees that service of any process, summons, notice or document by U.S. registered mail to such Company's\naddress set forth below shall be effective service of process for any action, suit or proceeding brought against such Company in any such court).\nEach Company hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out\nof\nthis agreement in the courts of the Subject State or the United States of America located in the Subject State, and hereby further irrevocably and\nunconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been\nbrought in an inconvenient forum.\nThis agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements,\nunderstandings, arrangements and discussions between the Companies regarding such subject matter.\nThis agreement may be signed in counterparts, each of which shall be deemed an original but all of which shall be deemed to constitute\na\nsingle instrument.\nIN WITNESS WHEREOF, each Company has caused this agreement to be signed by its duly authorized representatives as of the date written\nbelow.\nDate: 8/14/2007\nPhotoWorks, Inc:\nAmerican Greetings Corporation:\nSuite 200, 71 Columbia Street\nADDRESS FOR NOTICE:\nSeattle, WA 98104\nOne American Road\nBrooklyn, Ohio 44144\nAttn: General Counsel\nBy:\n/s/ Andrew Wood\nBy:\n/s/ Catherine M. Kilbane\nName: Andrew Wood\nName: Catherine M. Kilbane\nTitle: Chief Executive Officer\nTitle: Senior Vice President,\nGeneral Counsel and Secretary\n4 EX-99.(D)(10) 9 dex99d10.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(10)\nCONFIDENTIALITY AGREEMENT\nIn connection with the consideration of a possible negotiated transaction between each of the parties that have signed this agreement or its\nrespective subsidiaries, affiliates or divisions (each such party being hereinafter referred to, collectively with such subsidiaries, affiliates and\ndivisions, as a “Company”), each Company (in its capacity as a provider of information hereunder being referred to as a “Provider”) is prepared to\nmake available to the other Company (in its capacity as a recipient of information hereunder being referred to as a “Recipient”) certain information\nconcerning the business, financial condition, operations, assets and liabilities of the Provider. As a condition to such information being provided to\neach Recipient and its Recipient Representatives (as hereinafter defined), each Recipient agrees to treat any information concerning the Provider\n(whether prepared by the Provider, such Recipient’s Representatives or otherwise and irrespective of the form of communication) which is furnished\nto the Recipient and such Recipient’s Representatives now or in the future by or on behalf of the Provider (herein collectively referred to, with\nrespect to information furnished by or on behalf of either Company in its capacity as a Provider to the other Company in its capacity as a Recipient,\nas the “Evaluation Material”) in accordance with the provisions of this agreement, and to take or abstain from taking certain other actions as\nhereinafter set forth. As used in this letter, a Recipient’s “Representatives” shall include the directors, officers, employees, agents, partners or\nadvisors of such Recipient (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) and those of such\nRecipient’s parent company, subsidiaries and affiliates. Notwithstanding any other provision hereof, each Company reserves the right not to make\navailable hereunder any information, the provision of which is determined by it, in its sole discretion, to be inadvisable or inappropriate.\nThe term “Evaluation Material” also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents\nprepared by either Recipient or such Recipient’s Representatives which contain, reflect or are based upon, in whole or in part, the information\nfurnished to such Recipient or such Recipient’s Representatives pursuant hereto. The term Evaluation Material does not include information which\n(1) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or such Recipient’s Representatives, (ii) was\nwithin the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider pursuant hereto, provided that the\nsource of such information was not known by the Recipient to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation of confidentiality to, the Provider or any other party with respect to such information or (iii) becomes available to the Recipient on a non-\nconfidential basis from a source other than the Provider or any of its directors, officers, employees, agents or advisors (including, without limitation,\nattorneys, accountants, consultants, bankers and financial advisors) (collectively, “Provider Representatives”), provided that such source is not bound\nby a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider or any other party with\nrespect to such information. Notwithstanding any other provision hereof, each Provider reserves the right not to make available hereunder any\ninformation, the provision of which is determined by it, in its sole discretion, to be inadvisable or inappropriate.\nEach Recipient hereby agrees that such Recipient and such Recipient’s Representatives shall use the Evaluation Material solely for the purpose\nof evaluating a possible negotiated transaction between the Companies and for no other purpose, that the Evaluation Material will be kept\nconfidential and that the Recipient and such Recipient’s Representatives will not disclose any of the Evaluation Material in any manner whatsoever;\nprovided, however, that (i) the Recipient may make any disclosure of such information to which the Provider gives its prior written consent and\n(ii) any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of\nevaluating a possible negotiated transaction between the Companies, who are provided with a copy of this agreement and who agree to be bound by\nthe terms hereof to the same extent as if they were such Recipient. In any event, each Recipient agrees to undertake reasonable precautions to\nsafeguard and protect the confidentiality of the Evaluation Material, to accept responsibility for any breach of this agreement by any of such\nRecipient’s Representatives, and at such Recipient’s sole expense to take all reasonable measures (including but not limited to court proceedings) to\nrestrain such Recipient’s Representatives from prohibited or unauthorized disclosure or uses of the Evaluation Material.\n1\nIn addition, each Recipient agrees that, without the prior written consent of the Provider, such Recipient and such Recipient’s Representatives\nwill not disclose to any other person the fact that the Evaluation Material has been made available to such Recipient, that discussions or negotiations\nare taking place concerning a possible transaction between the Companies or any of the terms, conditions or other facts with respect thereto\n(including the status thereof) provided, however, that such Recipient may make such disclosure if the Provider has already done so or it has received\nthe written opinion of its outside counsel that such disclosure must be made by it in order that it not commit a violation of law. Without limiting the\ngenerality of the foregoing, each Recipient further agrees that, without the prior written consent of the Provider, it will not, directly or indirectly,\nenter into any agreement, arrangement or understanding, or any discussions which might lead to such agreement, arrangement or understanding, with\nany person regarding a possible transaction between the Companies. The term person as used in this agreement shall be broadly interpreted to\ninclude the media and any corporation, partnership, group, individual or other entity.\nIn the event that either Recipient or any of such Recipient’s Representatives are requested or required (by oral questions, interrogatories,\nrequests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the\nEvaluation Material, such Recipient shall provide the Provider with prompt written notice of any such request or requirement so that the Provider\nmay seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this agreement. If, in the absence of a\nprotective order or other remedy or the receipt of a waiver by the Provider, the Recipient or any of such Recipient’s Representatives are nonetheless,\nin the opinion of counsel, legally compelled to disclose Evaluation Material such Recipient or such Recipient’s Representatives may, without\nliability hereunder, disclose only that portion of the Evaluation Material which such counsel advises the Recipient is legally required to be disclosed\nIf either Company decides that it does not wish to proceed with a transaction with the other, it will promptly inform the other of that decision.\nIn that case, or at any time upon the request of either Company for any reason, the other Company will promptly [deliver to the notifying or\nrequesting Company all Evaluation Material (and all copies thereof) furnished to the notified or requested Company in its capacity as a Recipient or\nsuch Recipient’s Representatives by or on behalf of the notifying or requesting Company in its capacity as a Provider pursuant hereto. In the event of\nsuch a decision or request, all [other] Evaluation Material prepared by the notified or requested Company in its capacity as a Recipient or such\nRecipient’s Representatives shall, at the Recipient’s option, be destroyed or returned and no copy thereof shall be retained [except for one archival\ncopy which may be retained by such recipient’s outside counsel or in-house general counsel] and the Recipient shall provide to the notifying or\nrequesting Company a certificate of compliance with this sentence. Notwithstanding the return or destruction of the Evaluation Material, the notified\nor requested Company in its capacity as a Recipient and such Recipient’s Representatives will continue to be bound by such Recipient’s respective\nobligations of confidentiality and other obligations hereunder.\nEach Company understands and acknowledges that neither Company, in its capacity as a Provider, nor such Provider’s Representatives makes\nany representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such\nProvider and shall have no liability to the other.\nIn consideration of the Evaluation Material being furnished to a Recipient, the Recipient hereby agrees that, for a period of two years, neither it\nnor any of its affiliates will solicit to employ any of the officers or employees of the Provider with whom it has had contact or who was specifically\nidentified to it by the Provider or any of such Provider’s Representatives for purposes hereof during the period of the Recipient’s investigation of the\nProvider, so long as they are employed by the Provider, without obtaining the prior written consent of the Provider. Such two-year period shall be\nmeasured from, and expire two years following, the later of (i) the date of this agreement, (ii) the date of last contact by the Recipient or any of such\nRecipient’s Representatives with the applicable officer or employee or (iii) the date on which the applicable officer or employee was identified to the\nRecipient or any of such Recipient’s Representatives by the Provider or any of its Representatives for purposes hereof. This restriction shall not\napply to employees of Provider who respond to a general solicitation for employment published or posted by Recipient.\n2\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that\nthe Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of both\nCompanies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its\ncontinued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by\neither Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain\nentitled to such protection under these privileges, this agreement, and under the joint defense doctrine.\nEach Company, in its capacity as a Recipient, acknowledges and agrees that such Recipient is aware (and that such Recipient’s Representatives\nare aware or, upon receipt of any Evaluation Material, will be advised by such Recipient) of the restrictions imposed by the United States federal\nsecurities laws and other applicable foreign and domestic laws on a person possessing material non-public information about a public company and\nthat such Recipient and such Recipient’s Representatives will comply with such laws.\nEach Company agrees that, for a period of three years from the date of this agreement, unless such shall have been specifically invited in\nwriting by the other Company, neither the agreeing Company nor any of its affiliates (as such term is defined under the Securities Exchange Act of\n1934, as amended (the “1934 Act”)) or persons who are Recipient Representatives or Provider Representatives with respect to the agreeing\nCompany will in any manner, directly or indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or\nparticipate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in,\n(1) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Company or any of its subsidiaries, (ii) any tender or\nexchange offer, merger or other business combination involving the other Company or any of its subsidiaries, (iii) any recapitalization, restructuring,\nliquidation, dissolution or other extraordinary transaction with respect to the other Company or any of its subsidiaries, or (iv) any “solicitation” of\n“proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the\nother Company; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) with respect to the securities of the other\nCompany; (c) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the\nother Company; (d) take any action which might force the other Company to make a public announcement regarding any of the types of matters set\nforth in (a) above; or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing.\nEach Company understands and agrees that no contract or agreement providing for any transaction between the Companies shall be deemed to\nexist between the Companies unless and until a final definitive agreement has been executed and delivered, and each Company hereby waives, in\nadvance, any claims (including, without limitation, breach of contract but excluding any claims arising from a breach of this Confidentiality\nAgreement) in connection with any transaction involving the other Company unless and until both Companies shall have entered into a final\ndefinitive agreement. Each Company also agrees that unless and until a final definitive agreement regarding a transaction between the Companies\nhas been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such a transaction by\nvirtue of this agreement except for the matters specifically agreed to herein. Each Company further acknowledges and agrees that the other Company\nreserves the right, in its sole discretion, to reject any and all proposals made by the agreeing Company or any of the persons who are Recipient\nRepresentatives or Provider Representatives with respect to the Company with regard to a transaction between the Companies, and to terminate\ndiscussions and negotiations with the agreeing Company at any time. Each Company further agrees that (i) the other Company and the persons who\nare Recipient Representatives or Provider Representatives with respect to the other Company shall be free to conduct any process for any transaction\ninvolving the other Company, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other\ninterested parties and entering into a definitive agreement therewith without prior notice to the agreeing Company or any other person), (ii) any\nprocedures relating to such process or transaction may be changed at any time without notice to the agreeing Company or any other person and\n(iii) the agreeing Company shall not have any claims whatsoever against the other Company, the persons who are Recipient Representatives or\nProvider Representatives with respect to the other Company or any of their respective directors, officers, stockholders, owners, affiliates or agents\narising out of or relating to any transaction involving the other Company (other than those as against the parties to a definitive agreement between\nthe Companies, including this\n3\nConfidentiality Agreement in accordance with the term thereof) nor, unless a definitive agreement is entered into with the agreeing Company, against\nany third party with whom a transaction is entered into. Neither this paragraph nor any other provision in this agreement can be waived or amended\nin favor of either Company except by written consent of the other Company, which consent shall specifically refer to this paragraph (or such\nprovision) and explicitly make such waiver or amendment.\nIt is understood and agreed that no failure or delay by either Company in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power\nor privilege hereunder.\nIt is further understood and agreed that money damages would not be a sufficient remedy for any breach of this agreement by either Company\nor any of its Representatives and that the Company against which such breach is committed shall be entitled to seek equitable relief, including\ninjunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach\nby either Company of this agreement but shall be in addition to all other remedies available at law or equity to the Company against which such\nbreach is committed. In the event of litigation relating to this agreement, if a court of competent jurisdiction determines that either Company or any\nof the persons who are Recipient Representatives or Provider Representatives with respect to such Company has breached this agreement, then the\nCompany Recipient Representatives or Provider Representatives of which, is determined to have so breached shall be liable and pay to the other\nCompany the reasonable legal fees incurred by the other Company in connection with such litigation, including any appeal therefrom.\nThis agreement is for the benefit of the each Company, the persons who are Recipient Representatives or Provider Representatives with respect\nto such Company and their respective, directors, officers, stockholders, owners, affiliates, and agents, and shall be governed by and construed in\naccordance with the laws of the State of Washington (the “Subject State”) applicable to agreements made and to be performed entirely within such\nState. Each Company also hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the Subject State\nlocated within the County of King and of the United States of America located in the Western District of the Subject State for any actions, suits or\nproceedings arising out of or relating to this agreement (and each Company agrees not to commence any action, suit or proceeding relating thereto\nexcept in such courts, and further agrees that service of any process, summons, notice or document by U.S . registered mail to such Company’s\naddress set forth below shall be effective service of process for any action, suit or proceeding brought against such Company in any such court).\nEach Company hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of\nthis agreement , in the courts of the Subject State or the United States of America located in the Subject State, and hereby further irrevocably and\nunconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been\nbrought in an inconvenient forum.\nThis agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements,\nunderstandings, arrangements and discussions between the Companies regarding such subject matter.\nThis agreement may be signed in counterparts, each of which shall be deemed an original but all of which shall be deemed to constitute a\nsingle instrument.\nIN WITNESS WHEREOF, each Company has caused this agreement to be signed by its duly authorized representatives as of the date written\nbelow.\nDate: 8/14/2007\nPhotoWorks, Inc:\nAmerican Greetings Corporation:\nSuite 200, 71 Columbia Street\nSeattle, WA 98104\nADDRESS FOR NOTICE:\nOne American Road\nBrooklyn, Ohio 44144\nAttn: General Counsel\nBy: /s/ Andrew Wood\nBy: /s/ Catherine M. Kilbane\nName: Andrew Wood\nName: Catherine M. Kilbane\nTitle: Chief Executive Officer\nTitle: Senior Vice President,\nGeneral Counsel and Secretary\n4 bf9870984bc50bc7044b931590791ca6.pdf effective_date jurisdiction party term EX-10 .2 3 ex10-2 .htm\nNON-COMPETE, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETE, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT (“Agreement”) dated as of July 15, 2016\nbut effective as of May 3, 2016 (the “Effective Date”), by and between Wizard World, Inc., a Delaware corporation with a principal place of\nbusiness at 225 California Street, El Segundo, California 90245 (“Employer”), and John D. Maatta, an individual and resident of the State of\nCalifornia with a business address c/o Wizard World, Inc. 225 California Street, El Segundo, California 90245 (“Employee” and together with\nEmployer, the “Parties” and each, a “Party”).\nWITNESSETH:\nWHEREAS, Employee and Employer are entering into that certain Employment Agreement, dated as of the date of this Agreement;\nWHEREAS, in connection with such employment, Employee has been and may be given further access to, generate, or otherwise come\ninto contact with certain proprietary and/or confidential information of Employer or clients of Employer; and\nWHEREAS, Employee and Employer desire to prevent the dissemination, unauthorized disclosure or misuse of such information.\nNOW THEREFORE, the parties hereto mutually agree as follows:\n1. Covenant Not to Solicit. During the period commencing on the Effective Date and ending upon the termination of Employee’s\nemployment for any reason, Employee shall not, directly or indirectly, for Employee’s benefit or the benefit of a third party, (i) induce or attempt\nto induce any employees of Employer to leave the employ of Employer or diminish his or her relationship or Employer or (ii) solicit the business\nof any client or customer of Employer, or any client or customer that could reasonably be expected to be a client or customer of Employer, during\nEmployee’s period of employment with the Company.\n2. Covenant Not to Compete. Except for the activities set forth in Schedule I hereto and as a passive investor in less than five percent\n(5%) of the equity securities of a publicly held company, during the period commencing on the date hereof and ending upon the termination of\nEmployee’s employment for any reason, Employee shall not engage in, own or control an interest in, or act as principal, director or officer of, or\nconsultant to, any firm or corporation (i) engaged in a venture or business substantially similar to that of Employer or (ii) which is in direct or\nindirect competition with Employer within the United States of America, its territories and possessions.\n3. Proprietary Information.\n(a) For purposes of this Agreement, “Proprietary Information” shall mean any information belonging to the business of\nEmployer that has not previously been publicly released by duly authorized representatives of Employer and shall include (but shall not be\nlimited to) information encompassed in all proposals, marketing and sales plans, financial information, costs, pricing information, computer\nprograms (including source code, object code, algorithms and models), customer information, customer lists, and all methods, concepts, know-\nhow or ideas and confidential information belonging to Employer and Employer’s customers or clients. Employee agrees to regard and preserve\nas confidential all Proprietary Information whether Employee has such Proprietary Information in Employee’s memory or in writing or other\nphysical form.\n(b) Notwithstanding the foregoing, “Proprietary Information” shall not include information that (i) is disseminated to the public\nat no fault of Employee, (ii) was obtained from a third party that did not have an obligation of confidentiality to Employer, (iii) is already in the\npossession of Employee and (iv) constitutes any information proposals, marketing and sales plans, financial information, costs, pricing\ninformation, computer programs (including source code, object code, algorithms and models), customer information, customer lists, and all\nmethods, concepts, know-how or ideas, created or generated by Employee for which Employer has not been fully compensated.\n(c) Employee will not, without written authority from Employer to do so, directly or indirectly, disclose or use any Proprietary\nInformation for Employee’s benefit or purposes, nor disclose any Proprietary Information to others, either during the term of Employee’s\nemployment by Employer or thereafter, except as required by the conditions of Employee’s employment by Employer.\n(d) No work or intellectual property created by Employee shall be deemed work for hire and Employer shall only have the\nrights to such work or intellectual property after fully compensating Employee for such work or intellectual property.\n4. Saving Provision. Employee expressly agrees that the covenants set forth in this Agreement are being given to Employer in\nconnection with the employment of Employee by Employer and that such covenants are intended to protect Employer against the competition by\nEmployee, within the terms stated, to the fullest extent deemed reasonable and permitted in law and equity. In the event that the foregoing\nlimitations upon the conduct of Employee are beyond those permitted by law, such limitations, both as to time and geographical area, shall be,\nand be deemed to be, reduced in scope and effect to the maximum extent permitted by law.\n5. Injunctive Relief. Employee acknowledges that (i) disclosure of any Proprietary Information or breach of any of the non-competitive\ncovenants or agreements contained herein will give rise to irreparable injury to Employer or clients of Employer that would be inadequately\ncompensable in damages. Accordingly, Employer, or where appropriate a client of Employer, may seek and obtain injunctive relief against the\nbreach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available. Employee further\nacknowledges and agrees that in the event of the termination of employment with Employer, (ii) Employee’s experience and capabilities are such\nthat Employee can obtain employment in business activities which are of a different or non-competing nature with his or her activities as an\nemployee of Employer and (iii) the enforcement of a remedy hereunder by way of injunction shall not prevent Employee from earning a\nreasonable livelihood. Employee further acknowledges and agrees that the covenants contained herein are necessary for the protection of the\nCompany’s legitimate business interests and are reasonable in scope and content, and that Employee will, promptly upon the request of Employer\nat any time, cause any subsequent employer to execute and deliver to Employer a confidentiality and non-disclosure agreement in substantially\nthe form of Section 2 hereof and otherwise satisfactory to Employer.\n6. Enforceability. The provisions of this Agreement shall be enforceable notwithstanding the existence of any claim or cause of action\nof Employee against Employer whether predicated on this Agreement or otherwise.\n7. Term. This Agreement shall commence on the date hereof and shall terminate upon the termination of Employee’s employment for\nany reason.\n8. Governing Law. The Agreement shall be construed in accordance with the laws of the State of New York and any dispute under this\nAgreement will only be brought in the state and federal courts located in the State of New York.\n9. General. This Agreement contains the entire agreement of the Parties relating to the subject matter hereof. This Agreement may be\nmodified only by an instrument in writing signed by both Parties hereto. Any notice to be given under this Agreement shall be sufficient if it is in\nwriting and is sent by certified or registered mail to Employee at his residence address as the same appears on the books and records of Employer\nor to Employer at its principal office, attention of the President, or otherwise as directed by Employer, from time to time. Non-compliance with\nany one paragraph of this Agreement shall not have an effect on the validity of any other part of this Agreement. The provisions of this\nAgreement relating to confidentiality or non-competition shall survive the termination of employment, however caused.\n[-signature page follows-]\nIN WITNESS HEREOF, the undersigned execute this Agreement as of the date first set forth above.\nEMPLOYER\nWIZARD WORLD, INC.\nBy: /s/ Greg Suess\nGreg Suess\nChairman of the Compensation Committee\nEMPLOYEE\n/s/ John D. Maatta\nJohn D. Maatta EX-10.2 3 ex10-2.htm\nNON-COMPETE, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETE, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT (“Agreement”) dated as of July 15, 2016\nbut effective as of May 3, 2016 (the “Effective Date”), by and between Wizard World, Inc., a Delaware corporation with a principal place of\nbusiness at 225 California Street, El Segundo, California 90245 (“Employer”), and John D. Maatta, an individual and resident of the State of\nCalifornia with a business address c/o Wizard World, Inc. 225 California Street, El Segundo, California 90245 (“Employee” and together with\nEmployer, the “Parties” and each, a “Party”).\nWITNESSETH:\nWHEREAS, Employee and Employer are entering into that certain Employment Agreement, dated as of the date of this Agreement;\nWHEREAS, in connection with such employment, Employee has been and may be given further access to, generate, or otherwise come\ninto contact with certain proprietary and/or confidential information of Employer or clients of Employer; and\nWHEREAS, Employee and Employer desire to prevent the dissemination, unauthorized disclosure or misuse of such information.\nNOW THEREFORE, the parties hereto mutually agree as follows:\n1. Covenant Not to Solicit. During the period commencing on the Effective Date and ending upon the termination of Employee’s\nemployment for any reason, Employee shall not, directly or indirectly, for Employee’s benefit or the benefit of a third party, (i) induce or attempt\nto induce any employees of Employer to leave the employ of Employer or diminish his or her relationship or Employer or (ii) solicit the business\nof any client or customer of Employer, or any client or customer that could reasonably be expected to be a client or customer of Employer, during\nEmployee’s period of employment with the Company.\n2. Covenant Not to Compete. Except for the activities set forth in Schedule I hereto and as a passive investor in less than five percent\n(5%) of the equity securities of a publicly held company, during the period commencing on the date hereof and ending upon the termination of\nEmployee’s employment for any reason, Employee shall not engage in, own or control an interest in, or act as principal, director or officer of, or\nconsultant to, any firm or corporation (i) engaged in a venture or business substantially similar to that of Employer or (ii) which is in direct or\nindirect competition with Employer within the United States of America, its territories and possessions.\n3. Proprietary Information.\n(a) For purposes of this Agreement, “Proprietary Information” shall mean any information belonging to the business of\nEmployer that has not previously been publicly released by duly authorized representatives of Employer and shall include (but shall not be\nlimited to) information encompassed in all proposals, marketing and sales plans, financial information, costs, pricing information, computer\nprograms (including source code, object code, algorithms and models), customer information, customer lists, and all methods, concepts, know-\nhow or ideas and confidential information belonging to Employer and Employer’s customers or clients. Employee agrees to regard and preserve\nas confidential all Proprietary Information whether Employee has such Proprietary Information in Employee’s memory or in writing or other\nphysical form.\n(b) Notwithstanding the foregoing, “Proprietary Information” shall not include information that (i) is disseminated to the public\nat no fault of Employee, (ii) was obtained from a third party that did not have an obligation of confidentiality to Employer, (iii) is already in the\npossession of Employee and (iv) constitutes any information proposals, marketing and sales plans, financial information, costs, pricing\ninformation, computer programs (including source code, object code, algorithms and models), customer information, customer lists, and all\nmethods, concepts, know-how or ideas, created or generated by Employee for which Employer has not been fully compensated.\n(c) Employee will not, without written authority from Employer to do so, directly or indirectly, disclose or use any Proprietary\nInformation for Employee’s benefit or purposes, nor disclose any Proprietary Information to others, either during the term of Employee’s\nemployment by Employer or thereafter, except as required by the conditions of Employee’s employment by Employer.\n(d) No work or intellectual property created by Employee shall be deemed work for hire and Employer shall only have the\nrights to such work or intellectual property after fully compensating Employee for such work or intellectual property.\n4. Saving_Provision. Employee expressly agrees that the covenants set forth in this Agreement are being given to Employer in\nconnection with the employment of Employee by Employer and that such covenants are intended to protect Employer against the competition by\nEmployee, within the terms stated, to the fullest extent deemed reasonable and permitted in law and equity. In the event that the foregoing\nlimitations upon the conduct of Employee are beyond those permitted by law, such limitations, both as to time and geographical area, shall be,\nand be deemed to be, reduced in scope and effect to the maximum extent permitted by law.\n5. Injunctive Relief. Employee acknowledges that (i) disclosure of any Proprietary Information or breach of any of the non-competitive\ncovenants or agreements contained herein will give rise to irreparable injury to Employer or clients of Employer that would be inadequately\ncompensable in damages. Accordingly, Employer, or where appropriate a client of Employer, may seek and obtain injunctive relief against the\nbreach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available. Employee further\nacknowledges and agrees that in the event of the termination of employment with Employer, (ii) Employee’s experience and capabilities are such\nthat Employee can obtain employment in business activities which are of a different or non-competing nature with his or her activities as an\nemployee of Employer and (iii) the enforcement of a remedy hereunder by way of injunction shall not prevent Employee from earning a\nreasonable livelihood. Employee further acknowledges and agrees that the covenants contained herein are necessary for the protection of the\nCompany’s legitimate business interests and are reasonable in scope and content, and that Employee will, promptly upon the request of Employer\nat any time, cause any subsequent employer to execute and deliver to Employer a confidentiality and non-disclosure agreement in substantially\nthe form of Section 2 hereof and otherwise satisfactory to Employer.\n6. Enforceability. The provisions of this Agreement shall be enforceable notwithstanding the existence of any claim or cause of action\nof Employee against Employer whether predicated on this Agreement or otherwise.\n7. Term. This Agreement shall commence on the date hereof and shall terminate upon the termination of Employee’s employment for\nany reason.\n8. Governing Law. The Agreement shall be construed in accordance with the laws of the State of New York and any dispute under this\nAgreement will only be brought in the state and federal courts located in the State of New York.\n9. General. This Agreement contains the entire agreement of the Parties relating to the subject matter hereof. This Agreement may be\nmodified only by an instrument in writing signed by both Parties hereto. Any notice to be given under this Agreement shall be sufficient if it is in\nwriting and is sent by certified or registered mail to Employee at his residence address as the same appears on the books and records of Employer\nor to Employer at its principal office, attention of the President, or otherwise as directed by Employer, from time to time. Non-compliance with\nany one paragraph of this Agreement shall not have an effect on the validity of any other part of this Agreement. The provisions of this\nAgreement relating to confidentiality or non-competition shall survive the termination of employment, however caused.\n[-signature page follows-]\nIN WITNESS HEREOF, the undersigned execute this Agreement as of the date first set forth above.\nEMPLOYER\nWIZARD WORLD, INC.\nBy: /s/ Greg Suess\nGreg Suess\nChairman of the Compensation Committee\nEMPLOYEE\n/s/ John D. Maatta\nJohn D. Maatta EX-10.2 3 ex10-2.htm\nNON-COMPETE, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETE, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT ("Agreement") dated as of July 15, 2016\nbut\neffective as of May 3, 2016 (the "Effective Date"), by and between Wizard World, Inc., a Delaware corporation with a principal place of\nbusiness at 225 California Street, El Segundo, California 90245 ("Employer"), and John D. Maatta, an individual and resident of the State of\nCalifornia with a business address c/o Wizard World, Inc. 225 California Street, El Segundo, California 90245 ("Employee" and together with\nEmployer, the "Parties" and each, a "Party").\nWITNESSETH:\nWHEREAS, Employee and Employer are entering into that certain Employment Agreement, dated as of the date of this Agreement;\nWHEREAS, in connection with such employment, Employee has been and may be given further access to, generate, or otherwise come\ninto contact with certain proprietary and/or confidential information of Employer or clients of Employer; and\nWHEREAS, Employee and Employer desire to prevent the dissemination, unauthorized disclosure or misuse of such information\nNOW THEREFORE, the parties hereto mutually agree as follows:\n1. Covenant Not to Solicit. During the period commencing on the Effective Date and ending upon the termination of Employee's\nemployment\nfor\nany reason, Employee shall not, directly or indirectly, for Employee's benefit or the benefit of a third party, (i) induce or attempt\nto\ninduce any employees of Employer to leave the employ of Employer or diminish his or her relationship or Employer or (ii) solicit the business\nof any client or customer of Employer, or any client or customer that could reasonably be expected to be a client or customer of Employer, during\nEmployee's period of employment with the Company.\n2. Covenant Not to Compete. Except for the activities set forth in Schedule I hereto and as a passive investor in less than five percent\n(5%)\nof\nthe\nequity securities of a publicly held company, during the period commencing on the date hereof and ending upon the termination\nof\nEmployee's employment for any reason, Employee shall not engage in, own or control an interest in, or act as principal, director or officer of, or\nconsultant to, any firm or corporation (i) engaged in a venture or business substantially similar to that of Employer or (ii) which is in direct or\nindirect competition with Employer within the United States of America, its territories and possessions.\n3. ProprietaryInformation\n(a) For purposes of this Agreement, "Proprietary Information" shall mean any information belonging to the business of\nEmployer that has not previously been publicly released by duly authorized representatives of Employer and shall include (but shall not be\nlimited to) information encompassed in all proposals, marketing and sales plans, financial information, costs, pricing information, computer\nprograms (including source code, object code, algorithms and models), customer information, customer lists, and all methods, concepts, know-\nhow or ideas and confidential information belonging to Employer and Employer's customers or clients. Employee agrees to regard and preserve\nas confidential all Proprietary Information whether Employee has such Proprietary Information in Employee's memory or in writing or other\nphysical form.\n(b) Notwithstanding the foregoing, "Proprietary Information" shall not include information that (i) is disseminated to the public\nat no fault of Employee, (ii) was obtained from a third party that did not have an obligation of confidentiality to Employer, (iii) is already in the\npossession of Employee and (iv) constitutes any information proposals, marketing and sales plans, financial information, costs, pricing\ninformation, computer programs (including source code, object code, algorithms and models), customer information, customer lists, and all\nmethods, concepts, know-how or ideas, created or generated by Employee for which Employer has not been fully compensated.\n(c) Employee will not, without written authority from Employer to do so, directly or indirectly, disclose or use any Proprietary\nInformation for Employee's benefit or purposes, nor disclose any Proprietary Information to others, either during the term of Employee's\nemployment by Employer or thereafter, except as required by the conditions of Employee's employment by Employer.\n(d) No work or intellectual property created by Employee shall be deemed work for hire and Employer shall only have the\nrights to such work or intellectual property after fully compensating Employee for such work or intellectual property.\n4. ving Provision. Employee expressly agrees that the covenants set forth in this Agreement are being given to Employer in\nconnection with the employment of Employee by Employer and that such covenants are intended to protect Employer against the competition by\nEmployee, within the terms stated, to the fullest extent deemed reasonable and permitted in law and equity. In the event that the foregoing\nlimitations upon the conduct of Employee are beyond those permitted by law, such limitations, both as to time and geographical area, shall be,\nand be deemed to be, reduced in scope and effect to the maximum extent permitted by law.\n5. Injunctive Relief. Employee acknowledges that (i) disclosure of any Proprietary Information or breach of any of the non-competitive\ncovenants or agreements contained herein will give rise to irreparable injury to Employer or clients of Employer that would be\ninadequately\ncompensable in damages. Accordingly, Employer, or where appropriate a client of Employer, may seek and obtain injunctive relief against the\nbreach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available. Employee further\nacknowledges and agrees that in the event of the termination of employment with Employer, (ii) Employee's experience and capabilities\nare\nsuch\nthat Employee can obtain employment in business activities which are of a different or non-competing nature with his or her activities as\nan\nemployee of Employer and (iii) the enforcement of a remedy hereunder by way of injunction shall not prevent Employee from earning\na\nreasonable livelihood. Employee further acknowledges and agrees that the covenants contained herein are necessary for the protection of the\nCompany's legitimate business interests and are reasonable in scope and content, and that Employee will, promptly upon the request of Employer\nat any time, cause any subsequent employer to execute and deliver to Employer a confidentiality and non-disclosure agreement in substantially\nthe form of Section 2 hereof and otherwise satisfactory to Employer.\n6. Enforceability. The provisions of this Agreement shall be enforceable notwithstanding the existence of any claim or cause of action\nof Employee against Employer whether predicated on this Agreement or otherwise.\n7. Term. This Agreement shall commence on the date hereof and shall terminate upon the termination of Employee's employment for\nany reason\n8.\nGoverning Law. The Agreement shall be construed in accordance with the laws of the State of New York and any dispute under this\nAgreement will only be brought in the state and federal courts located in the State of New York.\n9. General. This Agreement contains the entire agreement of the Parties relating to the subject matter hereof. This Agreement may be\nmodified only by an instrument in writing signed by both Parties hereto. Any notice to be given under this Agreement shall be sufficient if it is in\nwriting and is sent by certified or registered mail to Employee at his residence address as the same appears on the books and records of Employer\nor\nto Employer at its principal office, attention of the President, or otherwise as directed by Employer, from time to time. Non-compliance with\nany one paragraph of this Agreement shall not have an effect on the validity of any other part of this Agreement. The provisions of this\nAgreement relating to confidentiality or non-competition shall survive the termination of employment, however caused.\n[-signature page follows-]\nIN\nWITNESS HEREOF, the undersigned execute this Agreement as of the date first set forth above.\nEMPLOYER\nWIZARD WORLD, INC.\nBy: /s/ Greg Suess\nGreg Suess\nChairman of the Compensation Committee\nEMPLOYEE\n/s/ John D. Maatta\nJohn D. Maatta EX-10 .2 3 ex10-2 .htm\nNON-COMPETE, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETE, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT (“Agreement”) dated as of July 15, 2016\nbut effective as of May 3, 2016 (the “Effective Date”), by and between Wizard World, Inc., a Delaware corporation with a principal place of\nbusiness at 225 California Street, El Segundo, California 90245 (“Employer”), and John D. Maatta, an individual and resident of the State of\nCalifornia with a business address c/o Wizard World, Inc. 225 California Street, El Segundo, California 90245 (“Employee” and together with\nEmployer, the “Parties” and each, a “Party”).\nWITNESSETH:\nWHEREAS, Employee and Employer are entering into that certain Employment Agreement, dated as of the date of this Agreement;\nWHEREAS, in connection with such employment, Employee has been and may be given further access to, generate, or otherwise come\ninto contact with certain proprietary and/or confidential information of Employer or clients of Employer; and\nWHEREAS, Employee and Employer desire to prevent the dissemination, unauthorized disclosure or misuse of such information.\nNOW THEREFORE, the parties hereto mutually agree as follows:\n1. Covenant Not to Solicit. During the period commencing on the Effective Date and ending upon the termination of Employee’s\nemployment for any reason, Employee shall not, directly or indirectly, for Employee’s benefit or the benefit of a third party, (i) induce or attempt\nto induce any employees of Employer to leave the employ of Employer or diminish his or her relationship or Employer or (ii) solicit the business\nof any client or customer of Employer, or any client or customer that could reasonably be expected to be a client or customer of Employer, during\nEmployee’s period of employment with the Company.\n2. Covenant Not to Compete. Except for the activities set forth in Schedule I hereto and as a passive investor in less than five percent\n(5%) of the equity securities of a publicly held company, during the period commencing on the date hereof and ending upon the termination of\nEmployee’s employment for any reason, Employee shall not engage in, own or control an interest in, or act as principal, director or officer of, or\nconsultant to, any firm or corporation (i) engaged in a venture or business substantially similar to that of Employer or (ii) which is in direct or\nindirect competition with Employer within the United States of America, its territories and possessions.\n3. Proprietary Information.\n(a) For purposes of this Agreement, “Proprietary Information” shall mean any information belonging to the business of\nEmployer that has not previously been publicly released by duly authorized representatives of Employer and shall include (but shall not be\nlimited to) information encompassed in all proposals, marketing and sales plans, financial information, costs, pricing information, computer\nprograms (including source code, object code, algorithms and models), customer information, customer lists, and all methods, concepts, know-\nhow or ideas and confidential information belonging to Employer and Employer’s customers or clients. Employee agrees to regard and preserve\nas confidential all Proprietary Information whether Employee has such Proprietary Information in Employee’s memory or in writing or other\nphysical form.\n(b) Notwithstanding the foregoing, “Proprietary Information” shall not include information that (i) is disseminated to the public\nat no fault of Employee, (ii) was obtained from a third party that did not have an obligation of confidentiality to Employer, (iii) is already in the\npossession of Employee and (iv) constitutes any information proposals, marketing and sales plans, financial information, costs, pricing\ninformation, computer programs (including source code, object code, algorithms and models), customer information, customer lists, and all\nmethods, concepts, know-how or ideas, created or generated by Employee for which Employer has not been fully compensated.\n(c) Employee will not, without written authority from Employer to do so, directly or indirectly, disclose or use any Proprietary\nInformation for Employee’s benefit or purposes, nor disclose any Proprietary Information to others, either during the term of Employee’s\nemployment by Employer or thereafter, except as required by the conditions of Employee’s employment by Employer.\n(d) No work or intellectual property created by Employee shall be deemed work for hire and Employer shall only have the\nrights to such work or intellectual property after fully compensating Employee for such work or intellectual property.\n4. Saving Provision. Employee expressly agrees that the covenants set forth in this Agreement are being given to Employer in\nconnection with the employment of Employee by Employer and that such covenants are intended to protect Employer against the competition by\nEmployee, within the terms stated, to the fullest extent deemed reasonable and permitted in law and equity. In the event that the foregoing\nlimitations upon the conduct of Employee are beyond those permitted by law, such limitations, both as to time and geographical area, shall be,\nand be deemed to be, reduced in scope and effect to the maximum extent permitted by law.\n5. Injunctive Relief. Employee acknowledges that (i) disclosure of any Proprietary Information or breach of any of the non-competitive\ncovenants or agreements contained herein will give rise to irreparable injury to Employer or clients of Employer that would be inadequately\ncompensable in damages. Accordingly, Employer, or where appropriate a client of Employer, may seek and obtain injunctive relief against the\nbreach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available. Employee further\nacknowledges and agrees that in the event of the termination of employment with Employer, (ii) Employee’s experience and capabilities are such\nthat Employee can obtain employment in business activities which are of a different or non-competing nature with his or her activities as an\nemployee of Employer and (iii) the enforcement of a remedy hereunder by way of injunction shall not prevent Employee from earning a\nreasonable livelihood. Employee further acknowledges and agrees that the covenants contained herein are necessary for the protection of the\nCompany’s legitimate business interests and are reasonable in scope and content, and that Employee will, promptly upon the request of Employer\nat any time, cause any subsequent employer to execute and deliver to Employer a confidentiality and non-disclosure agreement in substantially\nthe form of Section 2 hereof and otherwise satisfactory to Employer.\n6. Enforceability. The provisions of this Agreement shall be enforceable notwithstanding the existence of any claim or cause of action\nof Employee against Employer whether predicated on this Agreement or otherwise.\n7. Term. This Agreement shall commence on the date hereof and shall terminate upon the termination of Employee’s employment for\nany reason.\n8. Governing Law. The Agreement shall be construed in accordance with the laws of the State of New York and any dispute under this\nAgreement will only be brought in the state and federal courts located in the State of New York.\n9. General. This Agreement contains the entire agreement of the Parties relating to the subject matter hereof. This Agreement may be\nmodified only by an instrument in writing signed by both Parties hereto. Any notice to be given under this Agreement shall be sufficient if it is in\nwriting and is sent by certified or registered mail to Employee at his residence address as the same appears on the books and records of Employer\nor to Employer at its principal office, attention of the President, or otherwise as directed by Employer, from time to time. Non-compliance with\nany one paragraph of this Agreement shall not have an effect on the validity of any other part of this Agreement. The provisions of this\nAgreement relating to confidentiality or non-competition shall survive the termination of employment, however caused.\n[-signature page follows-]\nIN WITNESS HEREOF, the undersigned execute this Agreement as of the date first set forth above.\nEMPLOYER\nWIZARD WORLD, INC.\nBy: /s/ Greg Suess\nGreg Suess\nChairman of the Compensation Committee\nEMPLOYEE\n/s/ John D. Maatta\nJohn D. Maatta cce6a9643be4abacd213753c964ff747.pdf effective_date jurisdiction party term EX-99.E .3 3 y72866d9exv99wew3.htm EX-99.E.3: NONDISCLOSURE AGREEMENT\nExecution Copy\nExhibit (e)(3)\nNONDISCLOSURE AGREEMENT\nDisclosing Party: Omrix Biopharmaceuticals, Inc.\nRecipient: Ethicon, Inc.\nThis NONDISCLOSURE AGREEMENT (this “Agreement”) is made effective as of the 1st day of August, 2008, by and between\nOmrix Biopharmaceuticals, Inc. (the “Company”) and Ethicon, Inc. (the “Recipient”) to assure the protection and preservation of the\nconfidential and/or proprietary nature of information to be disclosed to the Recipient by the Company.\nWHEREAS, in order to pursue negotiations or discussions in contemplation or furtherance of a business relationship between\nthe parties or strategic transaction involving the parties, the Company has agreed to disclose and the Recipient has agreed to\nreceive certain data and other information which are of a proprietary and confidential nature (as defined in Paragraph 1 below and\nreferred to herein as “Confidential Information”). The Confidential Information will be used solely for the purpose of evaluating a\npotential business relationship between the parties or strategic transaction involving the parties and will not be used, directly or\nindirectly, for any other purpose, except as required under Paragraph 3 of this Agreement;\nWHEREAS, the Company acknowledges that it previously entered into various agreements with the Recipient that contain\nvarious confidentiality provisions related to the subject matter of those agreements and the Company acknowledges that this\nAgreement is not intended to affect or modify in any way any of those existing agreements or confidentiality provisions and that the\nCompany and the Recipient will continue their existing relationship and operate in the ordinary course of business while these\nnegotiations and discussions take place;\nNOW, THEREFORE, in reliance upon and in consideration of the following undertakings, and for other good and valuable\nconsideration, the receipt of which is hereby acknowledged, the parties to this Agreement hereby agree as follows:\n1. Subject to the limitations set forth in Paragraph 2, Confidential Information shall mean any proprietary and confidential\ninformation of the Company such as any, process, technique, compound, chemical structure, library, method of synthesis, program,\ndesign, drawing, formula, test data or other commercial or technical data or information relating to any research project, third party\nagreements, work in process, trade secret, proprietary right, actual or planned pre-clinical or clinical activity, development,\nengineering, manufacturing, marketing, servicing, financing or personnel matter relating to the Company, its present or future\ntechnology, products, customers, suppliers, employees, investors, business matters or business partners.\n2. The term “Confidential Information” shall not be deemed to include information which, to the extent that the Recipient can\nestablish by competent proof:\n(a) at the time of disclosure is in the public domain;\n(b) after disclosure, becomes part of the public domain by publication or otherwise, except by breach of this Agreement by the\nRecipient;\n(e) was in the Recipient’s possession in documentary form at the time of disclosure by the Company;\n(d) the Recipient received from a third party who had the lawful right to disclose the Confidential Information and who did not\nobtain the Confidential Information under an obligation of confidentiality; or\n(e) is independently developed by the Recipient independent of any disclosure of Confidential Information hereunder.”\nInformation disclosed under this Agreement shall not be deemed to be within the foregoing exceptions merely because such\ninformation is embraced by more general information in the public domain or in the possession of the Recipient. In addition, any\ncombination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the\npublic domain or in the Recipient’s possession, but only if the combination itself and its principle of operation are in the public\ndomain or in the Recipient’s possession.\n3. Notwithstanding any other provision of this Agreement, disclosure of Confidential Information shall not be precluded if such\ndisclosure:\n(a) is in response to a valid order of a court or to another governmental body of the United States or any political subdivision\nthereof;\n(b) is required by law or regulation; or\n(c) is required by any stock exchange or similar regulatory or administrative body with jurisdiction over either party such as\nFINRA;\nprovided, however, that the Recipient shall give prompt written notice to the Company within a reasonable time prior to any such\nproposed disclosure to allow the Company to undertake efforts to obtain a protective order or confidentiality agreement, and in any\nevent such Confidential Information may be disclosed by the Recipient only to the extent required by such law or regulation or body\nand\n2\nmay be used only for purposes for which such order was issued or as required by such law or regulation or body.\n4. The Recipient shall maintain in trust and confidence all Confidential Information received from the Company and shall not use\nsuch Confidential Information for any unauthorized purpose or disclose such Confidential Information to any third party, except with\nthe specific prior written consent of the Company. Notwithstanding the prior sentence, the Company acknowledges and agrees\nEthicon may share the information with certain representatives (the “Representatives) of its affiliate companies and its parent\ncorporation as well as external advisors and consultants including its accountants, bankers, lawyers and consultants who have a\nneed to know it in order for the Recipient to complete its due diligence and evaluate fully the opportunity provided the Recipient\nshall be solely responsible for any breach of this Agreement by its Representatives. The Recipient and the Representatives may\nuse such Confidential Information only to the extent required for the purposes described herein. Confidential Information shall not\nbe used for any purpose or in any manner that would constitute a violation of any laws or regulations, including, without limitation,\nthe export control laws of the United States. No other rights or licenses to trademarks, inventions, copyrights, or patents are implied\nor granted under this Agreement.\n5. Confidential Information supplied shall not be reproduced in any form except as required to accomplish the purposes of this\nAgreement.\n6. All Confidential Information (including copies thereof) shall remain the property of the Company, and shall at the Recipient’s\noption either be returned to the Company or certified destroyed by an officer of the Recipient after the Recipient’s need for such\nConfidential Information to accomplish the purposes of this Agreement has expired, or within five (5) business days after a written\nrequest by the Company.\n7. This Agreement shall continue in full force and effect until terminated by either party as hereinafter provided this Agreement\nmay be terminated by either party at any time upon three (3) business days’ written notice to the other party. The termination of this\nAgreement shall not relieve the Recipient of the obligations imposed by this Agreement with respect to Confidential Information\ndisclosed prior to the effective date of such termination of this Agreement and the provisions of Paragraphs 3, 4, 8, 9, 11 through\n14, shall survive the termination of this Agreement for a period of twelve (12) months from such termination date.\n8. This Agreement shall be governed by the laws of the State of New York without regard to its conflicts of law provisions. Each\nparty hereby submits itself or himself for the sole purpose of this Agreement and any controversy arising hereunder to the exclusive\njurisdiction of the federal courts in the State of New York, and waives any objection (on the grounds of lack of jurisdiction, forum\n3\nnon conveniens or otherwise) to the exercise of such jurisdiction over it or him by any federal court in the State of New York.\n9. Both parties agree they shall not reveal and shall cause their advisors and bankers not to reveal the fact that Confidential\nInformation has been disclosed pursuant to this Agreement, nor that the Recipient is conducting, or has conducted, discussions or\nnegotiations in contemplation or furtherance of a business relationship including any specific terms or conditions or pricing\ndiscussions. It is understood that disclosure pursuant to this Agreement is not a public disclosure or sale or offer for sale of any\nproduct, but is made for the limited purposes relating to potential business activities stated herein.\n10. During such time as Confidential Information is being disclosed pursuant to this Agreement and the parties are conducting\ndiscussions or negotiations in contemplation or furtherance of a business relationship and for a period of eighteen (18) months\nthereafter, neither the Recipient nor any of its affiliates shall, without the prior written consent of the Company, directly or indirectly,\n(i) sell or contract to sell any of the Company’s securities held by the Recipient or any of its affiliates held by the Recipient or any of\nits affiliates to purchase any of the Company’s securities or (ii) grant any third party any option, right or warrant to purchase any of\nthe Company’s securities held by the Recipient or any of its affiliates, in any such case whether any such transaction above is to be\nsettled by delivery of the Company’s securities, in cash or otherwise\n11. The Company disclaims all warranties regarding the Confidential Information disclosed pursuant to this Agreement, including\nall warranties as to the accuracy, completeness or utility of the Confidential Information until such time as the parties enter into a\ndefinitive agreement or written instrument signed by both parties in connection with any strategic transaction.\n12. This Agreement contains the entire agreement of the parties and may not be changed, modified, amended or supplemented,\nexcept by a written instrument signed by both parties. The unenforceability of any provision of this Agreement shall not affect the\nenforceability of any other provision of this Agreement. Neither this Agreement nor the disclosure of any Confidential Information\npursuant to this Agreement shall restrict the Company from disclosing any of its Confidential Information to any third party.\n13. This Agreement shall not be assignable by the Recipient without the prior written consent of the Company; any such\npurported or attempted assignment of this Agreement or any right or benefit conferred upon the Recipient hereby shall be void and\nunenforceable.\n14. Each party hereby acknowledges and agrees that in the event of any breach of this Agreement, the Company shall be\nentitled to seek injunctive relief\n4\nas may be granted by a court of competent jurisdiction, in addition to any and all other rights and remedies as may be available\nunder applicable law.\n15. This Agreement may be delivered by facsimile and executed in counterparts, each of which shall be deemed an original, but\nall of which together shall constitute one and the same instrument.\n5\nIN WITNESS WHEREOF, each Party has caused this Nondisclosure Agreement to be signed by its duly authorized representative AS OF\nTHE FIRST DATE ABOVE:\nOmrix Biopharmaceuticals, Inc.\nEthicon, Inc.\nBy:\n/s/ Nanci Prado\nBy:\n/s/ Susan E. Morano\nName Nanci Prado\nName Susan E. Morano\nTitle Vice President General Counsel\nTitle Vice President, WW New\nBusiness Development EX-99.E.3 3 y72866d9exv99wew3.htm EX-99.E.3: NONDISCLOSURE AGREEMENT\nExecution Copy\nExhibit (€)(3)\nNONDISCLOSURE AGREEMENT\nDisclosing Party: Omrix Biopharmaceuticals, Inc.\nRecipient: Ethicon, Inc.\nThis NONDISCLOSURE AGREEMENT (this “Agreement”) is made effective as of the 1st day of August, 2008, by and between\nOmrix Biopharmaceuticals, Inc. (the “Company”) and Ethicon, Inc. (the “Recipient”) to assure the protection and preservation of the\nconfidential and/or proprietary nature of information to be disclosed to the Recipient by the Company.\nWHEREAS, in order to pursue negotiations or discussions in contemplation or furtherance of a business relationship between\nthe parties or strategic transaction involving the parties, the Company has agreed to disclose and the Recipient has agreed to\nreceive certain data and other information which are of a proprietary and confidential nature (as defined in Paragraph 1 below and\nreferred to herein as “Confidential Information”). The Confidential Information will be used solely for the purpose of evaluating a\npotential business relationship between the parties or strategic transaction involving the parties and will not be used, directly or\nindirectly, for any other purpose, except as required under Paragraph 3 of this Agreement;\nWHEREAS, the Company acknowledges that it previously entered into various agreements with the Recipient that contain\nvarious confidentiality provisions related to the subject matter of those agreements and the Company acknowledges that this\nAgreement is not intended to affect or modify in any way any of those existing agreements or confidentiality provisions and that the\nCompany and the Recipient will continue their existing relationship and operate in the ordinary course of business while these\nnegotiations and discussions take place;\nNOW, THEREFORE, in reliance upon and in consideration of the following undertakings, and for other good and valuable\nconsideration, the receipt of which is hereby acknowledged, the parties to this Agreement hereby agree as follows:\n1. Subject to the limitations set forth in Paragraph 2, Confidential Information shall mean any proprietary and confidential\ninformation of the Company such as any, process, technique, compound, chemical structure, library, method of synthesis, program,\ndesign, drawing, formula, test data or other commercial or technical data or information relating to any research project, third party\nagreements, work in process, trade secret, proprietary right, actual or planned pre-clinical or clinical activity, development,\nengineering, manufacturing, marketing, servicing, financing or personnel matter relating to the Company, its present or future\ntechnology, products, customers, suppliers, employees, investors, business matters or business partners.\n2. The term “Confidential Information” shall not be deemed to include information which, to the extent that the Recipient can establish by competent proof: (@)\n(b)\n(e)\n(d)\n(e)\nat the time of disclosure is in the public domain;\nafter disclosure, becomes part of the public domain by publication or otherwise, except by breach of this Agreement by the\nRecipient;\nwas in the Recipient’'s possession in documentary form at the time of disclosure by the Company;\nthe Recipient received from a third party who had the lawful right to disclose the Confidential Information and who did not\nobtain the Confidential Information under an obligation of confidentiality; or\nis independently developed by the Recipient independent of any disclosure of Confidential Information hereunder.”\nInformation disclosed under this Agreement shall not be deemed to be within the foregoing exceptions merely because such information is embraced by more general information in the public domain or in the possession of the Recipient. In addition, any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the Recipient’s possession, but only if the combination itself and its principle of operation are in the public domain or in the Recipient’'s possession. 3. Notwithstanding any other provision of this Agreement, disclosure of Confidential Information shall not be precluded if such disclosure: (@)\n(b)\n()\nis in response to a valid order of a court or to another governmental body of the United States or any political subdivision\nthereof;\nis required by law or regulation; or\nis required by any stock exchange or similar regulatory or administrative body with jurisdiction over either party such as\nFINRA;\nprovided, however, that the Recipient shall give prompt written notice to the Company within a reasonable time prior to any such proposed disclosure to allow the Company to undertake efforts to obtain a protective order or confidentiality agreement, and in any event such Confidential Information may be disclosed by the Recipient only to the extent required by such law or regulation or body and\nmay be used only for purposes for which such order was issued or as required by such law or regulation or body.\n4. The Recipient shall maintain in trust and confidence all Confidential Information received from the Company and shall not use\nsuch Confidential Information for any unauthorized purpose or disclose such Confidential Information to any third party, except with\nthe specific prior written consent of the Company. Notwithstanding the prior sentence, the Company acknowledges and agrees\nEthicon may share the information with certain representatives (the “Representatives) of its affiliate companies and its parent\ncorporation as well as external advisors and consultants including its accountants, bankers, lawyers and consultants who have a\nneed to know it in order for the Recipient to complete its due diligence and evaluate fully the opportunity provided the Recipient\nshall be solely responsible for any breach of this Agreement by its Representatives. The Recipient and the Representatives may\nuse such Confidential Information only to the extent required for the purposes described herein. Confidential Information shall not\nbe used for any purpose or in any manner that would constitute a violation of any laws or regulations, including, without limitation,\nthe export control laws of the United States. No other rights or licenses to trademarks, inventions, copyrights, or patents are implied\nor granted under this Agreement.\n5. Confidential Information supplied shall not be reproduced in any form except as required to accomplish the purposes of this\nAgreement.\n6. All Confidential Information (including copies thereof) shall remain the property of the Company, and shall at the Recipient’s\noption either be returned to the Company or certified destroyed by an officer of the Recipient after the Recipient’s need for such\nConfidential Information to accomplish the purposes of this Agreement has expired, or within five (5) business days after a written\nrequest by the Company.\n7. This Agreement shall continue in full force and effect until terminated by either party as hereinafter provided this Agreement\nmay be terminated by either party at any time upon three (3) business days’ written notice to the other party. The termination of this\nAgreement shall not relieve the Recipient of the obligations imposed by this Agreement with respect to Confidential Information\ndisclosed prior to the effective date of such termination of this Agreement and the provisions of Paragraphs 3, 4, 8, 9, 11 through\n14, shall survive the termination of this Agreement for a period of twelve (12) months from such termination date.\n8. This Agreement shall be governed by the laws of the State of New York without regard to its conflicts of law provisions. Each\nparty hereby submits itself or himself for the sole purpose of this Agreement and any controversy arising hereunder to the exclusive\njurisdiction of the federal courts in the State of New York, and waives any objection (on the grounds of lack of jurisdiction, forum\n3\nnon conveniens or otherwise) to the exercise of such jurisdiction over it or him by any federal court in the State of New York.\n9. Both parties agree they shall not reveal and shall cause their advisors and bankers not to reveal the fact that Confidential\nInformation has been disclosed pursuant to this Agreement, nor that the Recipient is conducting, or has conducted, discussions or\nnegotiations in contemplation or furtherance of a business relationship including any specific terms or conditions or pricing\ndiscussions. It is understood that disclosure pursuant to this Agreement is not a public disclosure or sale or offer for sale of any\nproduct, but is made for the limited purposes relating to potential business activities stated herein.\n10. During such time as Confidential Information is being disclosed pursuant to this Agreement and the parties are conducting\ndiscussions or negotiations in contemplation or furtherance of a business relationship and for a period of eighteen (18) months\nthereafter, neither the Recipient nor any of its affiliates shall, without the prior written consent of the Company, directly or indirectly,\n(i) sell or contract to sell any of the Company’s securities held by the Recipient or any of its affiliates held by the Recipient or any of\nits affiliates to purchase any of the Company’s securities or (ii) grant any third party any option, right or warrant to purchase any of\nthe Company’s securities held by the Recipient or any of its affiliates, in any such case whether any such transaction above is to be\nsettled by delivery of the Company’s securities, in cash or otherwise\n11. The Company disclaims all warranties regarding the Confidential Information disclosed pursuant to this Agreement, including\nall warranties as to the accuracy, completeness or utility of the Confidential Information until such time as the parties enter into a\ndefinitive agreement or written instrument signed by both parties in connection with any strategic transaction.\n12. This Agreement contains the entire agreement of the parties and may not be changed, modified, amended or supplemented,\nexcept by a written instrument signed by both parties. The unenforceability of any provision of this Agreement shall not affect the\nenforceability of any other provision of this Agreement. Neither this Agreement nor the disclosure of any Confidential Information\npursuant to this Agreement shall restrict the Company from disclosing any of its Confidential Information to any third party.\n13. This Agreement shall not be assignable by the Recipient without the prior written consent of the Company; any such\npurported or attempted assignment of this Agreement or any right or benefit conferred upon the Recipient hereby shall be void and\nunenforceable.\n14. Each party hereby acknowledges and agrees that in the event of any breach of this Agreement, the Company shall be\nentitled to seek injunctive relief\nas may be granted by a court of competent jurisdiction, in addition to any and all other rights and remedies as may be available\nunder applicable law.\n15. This Agreement may be delivered by facsimile and executed in counterparts, each of which shall be deemed an original, but\nall of which together shall constitute one and the same instrument.\n5\nIN WITNESS WHEREOF, each Party has caused this Nondisclosure Agreement to be signed by its duly authorized representative AS OF\nTHE FIRST DATE ABOVE:\nOmrix Biopharmaceuticals, Inc. Ethicon, Inc.\nBy: /s/ Nanci Prado By: /s/ Susan E. Morano\nName Nanci Prado Name Susan E. Morano\nTitle Vice President General Counsel Title Vice President, WW New\nBusiness Development EX-99.E.3 3 y72866d9exv99wew3.htm EX-99.E.3: NONDISCLOSURE AGREEMENT\nExecution Copy\nExhibit (e)(3)\nNONDISCLOSURE AGREEMENT\nDisclosing Party: Omrix Biopharmaceuticals, Inc.\nRecipient: Ethicon, Inc.\nThis NONDISCLOSURE AGREEMENT (this "Agreement") is made effective as of the 1st day of August, 2008, by and between\nOmrix Biopharmaceuticals, Inc. (the "Company.") and Ethicon, Inc. (the "Recipient") to assure the protection and preservation of the\nconfidential and/or proprietary nature of information to be disclosed to the Recipient by the Company.\nWHEREAS, in order to pursue negotiations or discussions in contemplation or furtherance of a business relationship between\nthe parties or strategic transaction involving the parties, the Company has agreed to disclose and the Recipient has agreed to\nreceive certain data and other information which are of a proprietary and confidential nature (as defined in Paragraph 1 below and\nreferred to herein as "Confidential Information"). The Confidential Information will be used solely for the purpose of evaluating\na\npotential business relationship between the parties or strategic transaction involving the parties and will not be used, directly or\nindirectly, for any other purpose, except as required under Paragraph 3 of this Agreement;\nWHEREAS, the Company acknowledges that it previously entered into various agreements with the Recipient that contain\nvarious confidentiality provisions related to the subject matter of those agreements and the Company acknowledges that this\nAgreement is not intended to affect or modify in any way any of those existing agreements or confidentiality provisions and that the\nCompany and the Recipient will continue their existing relationship and operate in the ordinary course of business while these\nnegotiations and discussions take place;\nNOW, THEREFORE, in reliance upon and in consideration of the following undertakings, and for other good and valuable\nconsideration, the receipt of which is hereby acknowledged, the parties to this Agreement hereby agree as follows:\n1. Subject to the limitations set forth in Paragraph 2, Confidential Information shall mean any proprietary and confidentia\ninformation of the Company such as any, process, technique, compound, chemical structure, library, method of synthesis, program,\ndesign, drawing, formula, test data or other commercial or technical data or information relating to any research project, third party\nagreements, work in process, trade secret, proprietary right, actual or planned pre-clinical or clinical activity, development,\nengineering, manufacturing, marketing, servicing, financing or personnel matter relating to the Company, its present or future\ntechnology, products, customers, suppliers, employees, investors, business matters or business partners.\n2. The term "Confidential Information" shall not be deemed to include information which, to the extent that the Recipient can\nestablish by competent proof:\n(a) at the time of disclosure is in the public domain;\n(b) after disclosure, becomes part of the public domain by publication or otherwise, except by breach of this Agreement by the\nRecipient;\n(e) was in the Recipient's possession in documentary form at the time of disclosure by the Company;\n(d) the Recipient received from a third party who had the lawful right to disclose the Confidential Information and who did not\nobtain the Confidential Information under an obligation of confidentiality; or\n(e) is independently developed by the Recipient independent of any disclosure of Confidential Information hereunder."\nInformation disclosed under this Agreement shall not be deemed to be within the foregoing exceptions merely because such\ninformation is embraced by more general information in the public domain or in the possession of the Recipient. In addition, any\ncombination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the\npublic domain or in the Recipient's possession, but only if the combination itself and its principle of operation are in the public\ndomain or in the Recipient's possession.\n3. Notwithstanding any other provision of this Agreement, disclosure of Confidential Information shall not be precluded if such\ndisclosure:\n(a)\nis in response to a valid order of a court or to another governmental body of the United States or any political subdivision\nthereof;\n(b) is required by law or regulation; or\n(c) is required by any stock exchange or similar regulatory or administrative body with jurisdiction over either party such as\nFINRA;\nprovided, however, that the Recipient shall give prompt written notice to the Company within a reasonable time prior to any such\nproposed disclosure to allow the Company to undertake efforts to obtain a protective order or confidentiality agreement and in any\nevent such Confidential Information may be disclosed by the Recipient only to the extent required by such law or regulation or body\nand\n2\nmay be used only for purposes for which such order was issued or as required by such law or regulation or body.\n4. The Recipient shall maintain in trust and confidence all Confidentia Information received from the Company and shall not use\nsuch Confidential Information for any unauthorized purpose or disclose such Confidential Information to any third party, except with\nthe specific prior written consent of the Company. Notwithstanding the prior sentence, the Company acknowledges and agrees\nEthicon may share the information with certain representatives (the "Representatives) of its affiliate companies and its parent\ncorporation as well as external advisors and consultants including its accountants, bankers, lawyers and consultants who have\na\nneed to know it in order for the Recipient to complete its due diligence and evaluate fully the opportunity provided the Recipient\nshall be solely responsible for any breach of this Agreement by its Representatives. The Recipient and the Representatives may\nuse such Confidential Information only to the extent required for the purposes described herein. Confidential Information shall not\nbe used for any purpose or in any manner that would constitute a violation of any laws or regulations, including, without limitation,\nthe export control laws of the United States. No other rights or licenses to trademarks, inventions, copyrights, or patents are implied\nor granted under this Agreement.\n5. Confidential Information supplied shall not be reproduced in any form except as required to accomplish the purposes of this\nAgreement.\n6. All Confidential Information (including copies thereof) shall remain the property of the Company, and shall at the Recipient's\noption either be returned to the Company or certified destroyed by an officer of the Recipient after the Recipient's need for such\nConfidential Information to accomplish the purposes of this Agreement has expired, or within five (5) business days after a written\nrequest by the Company.\n7. This Agreement shall continue in full force and effect until terminated by either party as hereinafter provided this Agreement\nmay be terminated by either party at any time upon three (3) business days' written notice to the other party. The termination of\nthis\nAgreement shall not relieve the Recipient of the obligations imposed by this Agreement with respect to Confidential Information\ndisclosed prior to the effective date of such termination of this Agreement and the provisions of Paragraphs 3, 4, 8, 9, 11 through\n14, shall survive the termination of this Agreement for a period of twelve (12) months from such termination date.\n8. This Agreement shall be governed by the laws of the State of New York without regard to its conflicts of law provisions. Each\nparty hereby submits itself or himself for the sole purpose of this Agreement and any controversy arising hereunder to the exclusive\njurisdiction of the federal courts in the State of New York, and waives any objection (on the grounds of lack of jurisdiction,\nforum\n3\nnon conveniens or otherwise) to the exercise of such jurisdiction over it or him by any federal court in the State of New York.\n9. Both parties agree they shall not reveal and shall cause their advisors and bankers not to reveal the fact that Confidentia\nInformation has been disclosed pursuant to this Agreement, nor that the Recipient is conducting, or has conducted, discussions or\nnegotiations in contemplation or furtherance of a business relationship including any specific terms or conditions or pricing\ndiscussions. It is understood that disclosure pursuant to this Agreement is not a public disclosure or sale or offer for sale of any\nproduct, but is made for the limited purposes relating to potential business activities stated herein.\n10. During such time as Confidential Information is being disclosed pursuant to this Agreement and the parties are conducting\ndiscussions or negotiations in contemplation or furtherance of a business relationship and for a period of eighteen (18) months\nthereafter, neither the Recipient nor any of its affiliates shall, without the prior written consent of the Company, directly or indirectly,\n(i) sell or contract to sell any of the Company's securities held by the Recipient or any of its affiliates held by the Recipient or any of\nits\naffiliates\nto purchase any of the Company's securities or (ii) grant any third party any option, right or warrant to purchase any\nof\nthe Company's securities held by the Recipient or any of its affiliates, in any such case whether any such transaction above is to be\nsettled by delivery of the Company's securities, in cash or otherwise\n11. The Company disclaims all warranties regarding the Confidential Information disclosed pursuant to this Agreement, including\nall warranties as to the accuracy, completeness or utility of the Confidential Information until such time as the parties enter into a\ndefinitive agreement or written instrument signed by both parties in connection with any strategic transaction.\n12. This Agreement contains the entire agreement of the parties and may not be changed, modified, amended or supplemented,\nexcept by a written instrument signed by both parties. The unenforceability of any provision of this Agreement shall not affect the\nenforceability of any other provision of this Agreement. Neither this Agreement nor the disclosure of any Confidential Information\npursuant to this Agreement shall restrict the Company from disclosing any of its Confidential Information to any third party.\n13. This Agreement shall not be assignable by the Recipient without the prior written consent of the Company; any such\npurported or attempted assignment of this Agreement or any right or benefit conferred upon the Recipient hereby shall be void and\nunenforceable.\n14. Each party hereby acknowledges and agrees that in the event of any breach of this Agreement, the Company shall be\nentitled to seek injunctive relief\n4\nas may be granted by a court of competent jurisdiction in addition to any and all other rights and remedies as may be available\nunder applicable law.\n15. This Agreement may be delivered by facsimile and executed in counterparts, each of which shall be deemed an original, but\nall of which together shall constitute one and the same instrument.\n5\nIN WITNESS WHEREOF, each Party has caused this Nondisclosure Agreement to be signed by its duly authorized representative AS OF\nTHE FIRST DATE ABOVE:\nOmrix Biopharmaceuticals, Inc.\nEthicon, Inc.\nBy:\n/s/ Nanci Prado\nBy:\n/s/ Susan E. Morano\nName\nNanci Prado\nName\nSusan E. Morano\nTitle\nVice President General Counsel\nTitle\nVice President, WW New\nBusiness Development EX-99.E .3 3 y72866d9exv99wew3.htm EX-99.E.3: NONDISCLOSURE AGREEMENT\nExecution Copy\nExhibit (e)(3)\nNONDISCLOSURE AGREEMENT\nDisclosing Party: Omrix Biopharmaceuticals, Inc.\nRecipient: Ethicon, Inc.\nThis NONDISCLOSURE AGREEMENT (this “Agreement”) is made effective as of the 1st day of August, 2008, by and between\nOmrix Biopharmaceuticals, Inc. (the “Company”) and Ethicon, Inc. (the “Recipient”) to assure the protection and preservation of the\nconfidential and/or proprietary nature of information to be disclosed to the Recipient by the Company.\nWHEREAS, in order to pursue negotiations or discussions in contemplation or furtherance of a business relationship between\nthe parties or strategic transaction involving the parties, the Company has agreed to disclose and the Recipient has agreed to\nreceive certain data and other information which are of a proprietary and confidential nature (as defined in Paragraph 1 below and\nreferred to herein as “Confidential Information”). The Confidential Information will be used solely for the purpose of evaluating a\npotential business relationship between the parties or strategic transaction involving the parties and will not be used, directly or\nindirectly, for any other purpose, except as required under Paragraph 3 of this Agreement;\nWHEREAS, the Company acknowledges that it previously entered into various agreements with the Recipient that contain\nvarious confidentiality provisions related to the subject matter of those agreements and the Company acknowledges that this\nAgreement is not intended to affect or modify in any way any of those existing agreements or confidentiality provisions and that the\nCompany and the Recipient will continue their existing relationship and operate in the ordinary course of business while these\nnegotiations and discussions take place;\nNOW, THEREFORE, in reliance upon and in consideration of the following undertakings, and for other good and valuable\nconsideration, the receipt of which is hereby acknowledged, the parties to this Agreement hereby agree as follows:\n1. Subject to the limitations set forth in Paragraph 2, Confidential Information shall mean any proprietary and confidential\ninformation of the Company such as any, process, technique, compound, chemical structure, library, method of synthesis, program,\ndesign, drawing, formula, test data or other commercial or technical data or information relating to any research project, third party\nagreements, work in process, trade secret, proprietary right, actual or planned pre-clinical or clinical activity, development,\nengineering, manufacturing, marketing, servicing, financing or personnel matter relating to the Company, its present or future\ntechnology, products, customers, suppliers, employees, investors, business matters or business partners.\n2. The term “Confidential Information” shall not be deemed to include information which, to the extent that the Recipient can\nestablish by competent proof:\n(a) at the time of disclosure is in the public domain;\n(b) after disclosure, becomes part of the public domain by publication or otherwise, except by breach of this Agreement by the\nRecipient;\n(e) was in the Recipient’s possession in documentary form at the time of disclosure by the Company;\n(d) the Recipient received from a third party who had the lawful right to disclose the Confidential Information and who did not\nobtain the Confidential Information under an obligation of confidentiality; or\n(e) is independently developed by the Recipient independent of any disclosure of Confidential Information hereunder.”\nInformation disclosed under this Agreement shall not be deemed to be within the foregoing exceptions merely because such\ninformation is embraced by more general information in the public domain or in the possession of the Recipient. In addition, any\ncombination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the\npublic domain or in the Recipient’s possession, but only if the combination itself and its principle of operation are in the public\ndomain or in the Recipient’s possession.\n3. Notwithstanding any other provision of this Agreement, disclosure of Confidential Information shall not be precluded if such\ndisclosure:\n(a) is in response to a valid order of a court or to another governmental body of the United States or any political subdivision\nthereof;\n(b) is required by law or regulation; or\n(c) is required by any stock exchange or similar regulatory or administrative body with jurisdiction over either party such as\nFINRA;\nprovided, however, that the Recipient shall give prompt written notice to the Company within a reasonable time prior to any such\nproposed disclosure to allow the Company to undertake efforts to obtain a protective order or confidentiality agreement, and in any\nevent such Confidential Information may be disclosed by the Recipient only to the extent required by such law or regulation or body\nand\n2\nmay be used only for purposes for which such order was issued or as required by such law or regulation or body.\n4. The Recipient shall maintain in trust and confidence all Confidential Information received from the Company and shall not use\nsuch Confidential Information for any unauthorized purpose or disclose such Confidential Information to any third party, except with\nthe specific prior written consent of the Company. Notwithstanding the prior sentence, the Company acknowledges and agrees\nEthicon may share the information with certain representatives (the “Representatives) of its affiliate companies and its parent\ncorporation as well as external advisors and consultants including its accountants, bankers, lawyers and consultants who have a\nneed to know it in order for the Recipient to complete its due diligence and evaluate fully the opportunity provided the Recipient\nshall be solely responsible for any breach of this Agreement by its Representatives. The Recipient and the Representatives may\nuse such Confidential Information only to the extent required for the purposes described herein. Confidential Information shall not\nbe used for any purpose or in any manner that would constitute a violation of any laws or regulations, including, without limitation,\nthe export control laws of the United States. No other rights or licenses to trademarks, inventions, copyrights, or patents are implied\nor granted under this Agreement.\n5. Confidential Information supplied shall not be reproduced in any form except as required to accomplish the purposes of this\nAgreement.\n6. All Confidential Information (including copies thereof) shall remain the property of the Company, and shall at the Recipient’s\noption either be returned to the Company or certified destroyed by an officer of the Recipient after the Recipient’s need for such\nConfidential Information to accomplish the purposes of this Agreement has expired, or within five (5) business days after a written\nrequest by the Company.\n7. This Agreement shall continue in full force and effect until terminated by either party as hereinafter provided this Agreement\nmay be terminated by either party at any time upon three (3) business days’ written notice to the other party. The termination of this\nAgreement shall not relieve the Recipient of the obligations imposed by this Agreement with respect to Confidential Information\ndisclosed prior to the effective date of such termination of this Agreement and the provisions of Paragraphs 3, 4, 8, 9, 11 through\n14, shall survive the termination of this Agreement for a period of twelve (12) months from such termination date.\n8. This Agreement shall be governed by the laws of the State of New York without regard to its conflicts of law provisions. Each\nparty hereby submits itself or himself for the sole purpose of this Agreement and any controversy arising hereunder to the exclusive\njurisdiction of the federal courts in the State of New York, and waives any objection (on the grounds of lack of jurisdiction, forum\n3\nnon conveniens or otherwise) to the exercise of such jurisdiction over it or him by any federal court in the State of New York.\n9. Both parties agree they shall not reveal and shall cause their advisors and bankers not to reveal the fact that Confidential\nInformation has been disclosed pursuant to this Agreement, nor that the Recipient is conducting, or has conducted, discussions or\nnegotiations in contemplation or furtherance of a business relationship including any specific terms or conditions or pricing\ndiscussions. It is understood that disclosure pursuant to this Agreement is not a public disclosure or sale or offer for sale of any\nproduct, but is made for the limited purposes relating to potential business activities stated herein.\n10. During such time as Confidential Information is being disclosed pursuant to this Agreement and the parties are conducting\ndiscussions or negotiations in contemplation or furtherance of a business relationship and for a period of eighteen (18) months\nthereafter, neither the Recipient nor any of its affiliates shall, without the prior written consent of the Company, directly or indirectly,\n(i) sell or contract to sell any of the Company’s securities held by the Recipient or any of its affiliates held by the Recipient or any of\nits affiliates to purchase any of the Company’s securities or (ii) grant any third party any option, right or warrant to purchase any of\nthe Company’s securities held by the Recipient or any of its affiliates, in any such case whether any such transaction above is to be\nsettled by delivery of the Company’s securities, in cash or otherwise\n11. The Company disclaims all warranties regarding the Confidential Information disclosed pursuant to this Agreement, including\nall warranties as to the accuracy, completeness or utility of the Confidential Information until such time as the parties enter into a\ndefinitive agreement or written instrument signed by both parties in connection with any strategic transaction.\n12. This Agreement contains the entire agreement of the parties and may not be changed, modified, amended or supplemented,\nexcept by a written instrument signed by both parties. The unenforceability of any provision of this Agreement shall not affect the\nenforceability of any other provision of this Agreement. Neither this Agreement nor the disclosure of any Confidential Information\npursuant to this Agreement shall restrict the Company from disclosing any of its Confidential Information to any third party.\n13. This Agreement shall not be assignable by the Recipient without the prior written consent of the Company; any such\npurported or attempted assignment of this Agreement or any right or benefit conferred upon the Recipient hereby shall be void and\nunenforceable.\n14. Each party hereby acknowledges and agrees that in the event of any breach of this Agreement, the Company shall be\nentitled to seek injunctive relief\n4\nas may be granted by a court of competent jurisdiction, in addition to any and all other rights and remedies as may be available\nunder applicable law.\n15. This Agreement may be delivered by facsimile and executed in counterparts, each of which shall be deemed an original, but\nall of which together shall constitute one and the same instrument.\n5\nIN WITNESS WHEREOF, each Party has caused this Nondisclosure Agreement to be signed by its duly authorized representative AS OF\nTHE FIRST DATE ABOVE:\nOmrix Biopharmaceuticals, Inc.\nEthicon, Inc.\nBy:\n/s/ Nanci Prado\nBy:\n/s/ Susan E. Morano\nName Nanci Prado\nName Susan E. Morano\nTitle Vice President General Counsel\nTitle Vice President, WW New\nBusiness Development cdb615d6774f4ea7032768d5bcf02ee2.pdf effective_date jurisdiction party term EX-10.1 2 dex101.htm EMPLOYMENT AND CONFIDENTIALITY AGREEMENT\nEXHIBIT 10.1\nEmployment and Confidentiality Agreement\nThis Employment and Confidentiality Agreement (the “Agreement”) is made between First Bank of Beverly Hills (the “Bank”), a state chartered\nbank, and Joseph W. Kiley, III (the “Employee”). The Bank is an affiliate of Beverly Hills Bancorp, Inc. a Delaware corporation (the “Company”).\nAccordingly, on the basis of the representations, warranties, and covenants contained in this Agreement, the parties agree as follows effective as of\nJanuary 1, 2006 (the “Effective Date”):\n1. ARTICLE 1 – EMPLOYMENT AND TERM\n1.1. The Bank earlier notified Employee that it was not renewing Employee’s employment under the terms of the Employment,\nConfidentiality and Contingent Severance Agreement dated January 1, 2003 (the “Severance Agreement”). Accordingly, Employee’s\nemployment pursuant to that Severance Agreement will expire December 31, 2005. Notwithstanding the fact that the Bank and\nEmployee are entering into a new employment relationship pursuant to this Agreement, the pay and benefits Employee is to receive\nunder the terms of the Severance Agreement pursuant to Section 4.2(b) and (c) thereof shall not be impacted or otherwise affected by\nEmployee’s entering into this Agreement with the Bank and Employee shall begin to receive the pay and benefits outlined in the\nSeverance Agreement as a result of the Bank’s non-renewal of the Severance Agreement commencing on January 1, 2006. Likewise,\nEmployee’s entitlement to receive the 2004 continuous service bonus payments pursuant to the Amended 2004 Annual Incentive Award\nPlan is not altered by this Agreement and thus payable on January 1, 2006.\n1.2. Term. The term of employment under this Agreement shall commence on the Effective Date, and shall continue for a period of twelve\n(12) months thereafter. Either the Bank or Employee may terminate the employment relationship under this Agreement at any time, with\nor without reason, upon thirty (30) days notice to the other. If the Bank provides thirty (30) days notice to terminate the employment\nrelationship, then it will have no further obligation to pay Employee his salary through the remainder of the term of this Agreement. The\nBank may, at its option, offer to continue the employment relationship under this Agreement for an additional 6 month term, upon\nwritten notice to Employee.\n2. ARTICLE 2 – DUTIES OF THE EMPLOYEE\n2.1. Position and Duties. The Bank will employ the Employee as its President and Chief Executive Officer, and Employee accepts such\nemployment, on the terms and conditions set forth in this Agreement. Employee will undertake and\nPage 1\nperform all duties as required of the position. Employee will render such services and perform such duties and acts in connection with\nany aspect of the Bank’s business as may be lawfully required by the management or the Board of Directors of the Bank. Employee shall\nperform the services contemplated herein faithfully, diligently, to the best of Employee’s ability, and in the best interests of the Bank.\nEmployee will also devote his full and exclusive business time and efforts in rendering such services and to the extent of his authority\nwill endeavor to ensure that the Bank is in compliance with all laws, rules, regulations and policies applicable to the Bank. The\nEmployee shall, at all times, adhere to and obey any and all written internal rules and regulations governing the conduct of the Bank’s\nemployees as established and modified from time to time.\n2.2. Exclusive Services. During his employment by the Bank, the Employee shall not, without the express prior written consent of the Board\nof Directors of the Bank, engage directly or indirectly in any outside employment or consulting of any kind, whether or not the\nEmployee receives remuneration for such services. Further, the Employee shall not engage in any activity that would impair the\nEmployee’s ability to act and exercise judgment in the best interest of the Bank.\n2.3. Subpoenas; Cooperation in Defense of the Bank. If the Employee, during employment or thereafter, is served with any subpoena or other\ncompulsory judicial or administrative process calling for production of confidential information or if the Employee is otherwise required\nby law or regulations to disclose confidential information, the Employee will immediately, before making any such production or\ndisclosure, notify the Bank and provide it with such information as may be necessary for the Bank to take such action as the Bank deems\nnecessary to protect its interests. The Employee agrees to cooperate reasonably with the Bank, whether during employment or thereafter,\nin the prosecution or defense of all threatened claims or actual litigation in which the Bank is or may become a party, whether now\npending or hereafter brought, in which the Employee has knowledge of relevant facts or issues. The Employee shall be reimbursed for\nreasonable expenses for travel time due to cooperating with the prosecution or defense of any litigation for the Bank.\n2.4. Other Obligations. The Employee acknowledges that the Bank from time to time may have agreements with other persons or with\nvarious governmental agencies that impose obligations or restrictions on the Bank regarding inventions or creative works made during\nthe course of the Bank’s work under such agreements, or that relate to the confidential nature of such work. The Employee agrees to be\nbound by all such obligations and restrictions of which the Employee is informed by the Bank and to take all action necessary to\ndischarge the obligations of the Bank thereunder.\nPage 2\n3. ARTICLE 3 – COMPENSATION\n3.1. Base Salary. Employee will receive a base salary of $275,000.00 per year, less applicable withholdings. This salary shall be payable\nsemi-monthly in accordance with the Bank’s regular payroll practices.\n3.2. Bank Employee Benefits. Employee will be entitled to participate in the Bank’s employee benefit plans, including the Amended 2004\nAnnual Incentive Award Plan or its successor, 401(k) savings plan, medical, dental, vision, long-term disability, and short term disability\nbenefits or insurance programs on the same basis as any of those benefits or insurance programs are available generally to other officers\nof similar position under the Bank’s then current personnel policies. The Bank and the Company will not, without Employee’s written\nconsent, make any changes in Employee’s rights or benefits thereunder, except to the extent such changes are made applicable to all\nexecutive-level Bank and Company employees on a non-discriminatory basis. The Bank’s obligations to continue coverage of these\nbenefits under Section 4.2(c) of the above-referenced Severance Agreement will be suspended during the period of time Employee\ncontinues his employment pursuant to this Agreement. Upon the termination of Employee’s employment pursuant to this Agreement, the\nBank’s obligations under Section 4.2(c) of the Severance Agreement will commence and continue under the provisions stated therein.\n3.3. Vacation. Employee will be eligible to earn vacation time at a rate of 13.33 hours per month up to a total of 160 hours in the calendar\nyear. Vacation time not used in any calendar year may be carried forward, provided, however, that, once the Employee has accrued 200\nhours, Employee shall not be eligible to accrue additional vacation time until he has taken one or more days of vacation.\n3.4. Reimbursement for Expenses. To the extent Employee incurs necessary and reasonable business expenses in the course of his\nemployment, the Bank will reimburse Employee for such expenses, subject to the Bank’s then current policies regarding reimbursement\nof such business expenses.\n3.5. Indemnity and Insurance. Employee shall receive all benefits and privileges to which the Employee is entitled by law or pursuant to the\nBylaws of the Bank or the Company.\n3.6. 2005 Bonus Payment. Employee will be eligible to receive a 2005 bonus in the amount of $175,000.00 pursuant to the Amended 2004\nAnnual Incentive Award Plan approved by the Board on February 4, 2005. Said bonus payment will be made to Employee on or before\nMarch 15, 2006.\n3.7. Continuous Service Bonus Eligibility. Employee will be eligible to receive a continuous service bonus in the amount of $75,000.00 if\nEmployee remains employed through June 30, 2006. If the Bank terminates Employee’s employment pursuant to this Agreement at any\ntime prior to June 30, 2006, Employee will remain eligible to receive this continuous service bonus payment. Should Employee\nterminate his employment relationship with the Bank prior to\nPage 3\nJune 30, 2006, Employee will forfeit his eligibility for the continuous service bonus payment. If Employee is terminated for “cause” as\ndefined in Section 4.1 of this Agreement prior to June 30, 2006, then Employee is not entitled to and forfeits his eligibility for the\ncontinuous service bonus set forth in this Section 3.7. If Employee remains employed with the Bank after June 30, 2006, then, at the\nBank’s Board of Directors’ sole discretion, Employee may be provided a Bonus Opportunity in addition to the bonus mentioned in this\nSection 3.7 as provided in Section 3.2 .\n4. ARTICLE 4 – TERMINATION FOR CAUSE\n4.1 Termination for Cause. Termination for cause shall mean termination because of Employee’s incompetence, personal dishonesty, willful\nmisconduct, any breach of fiduciary duty involving personal profit, habitual neglect of duties, intentional failure to perform stated duties,\nwillful violation of any material law, rule or regulation, order or material breach of any employment policy of the Bank or any material\nbreach of any provision of this Agreement. Written notice delivered to Employee is a prerequisite to Termination for Cause and such\ntermination shall be effective on the delivery date of the written notice. Employee shall have the right to receive compensation or other\nbenefits which have already vested or been earned as of the date of notice of Termination for Cause, unless expressly prohibited by the\nterms of any plan, program or agreement governing such compensation or benefits. Employee shall receive no other compensation or\nseverance pay in the event of Termination for Cause.\n5. ARTICLE 5 – CONFIDENTIALITY AND NON-SOLICITATION\n5.1. Non-disclosure of Confidential and Trade Secret Information. Employee acknowledges that, in the course of employment with the Bank,\nEmployee will have access to and learn confidential information. Confidential information includes but is not limited to information\nabout the Bank’s borrowers and clients, the terms and conditions under which the Bank or its affiliates deal with borrowers and clients,\npricing information for the purchase or sale of assets, financing and securitization arrangements, research materials, manuals, computer\nprograms, formulas analyzing assets portfolios, techniques, data, marketing plans and tactics, technical information, lists of asset\nsources, the processes and practices of the Bank and related companies, information contained in electronic or computer files, financial\ninformation, salary and wage information, and other information that is designated by the Bank or its affiliates as confidential or that\nEmployee knows or should know is confidential information provided by third parties that the Bank or its affiliates are obligated to keep\nconfidential and all other proprietary information of the Bank or its affiliates. Employee acknowledges that all confidential information is\nand shall continue to be the exclusive property of the Bank or its affiliates, whether or not prepared in whole or in part by the Employee\nand whether or not disclosed to or entrusted to the Employee in connection with employment by the Bank. Employee agrees not to\nPage 4\ndisclose confidential information, directly or indirectly, under any circumstances or by any means, to any third persons without the prior\nwritten consent of the Bank. Employee agrees that he will not copy, transmit, reproduce, summarize, quote, or make any commercial or\nother use whatsoever of confidential information, except as may be necessary to perform work done by Employee for the Bank.\nEmployee agrees to exercise the highest degree of care in safeguarding confidential information against loss, theft or other inadvertent\ndisclosure and agrees generally to take all steps necessary or requested by the Bank to ensure maintenance of the confidentiality of the\nconfidential information. Employee agrees in addition to the specific covenants contained herein to comply with all of the Bank’s\npolicies and procedures, as well as all applicable laws, for the protection of confidential information.\n5.2. Exclusions. Section 5.1 shall not apply to the following information: (a) information now or hereafter voluntarily disseminated by the\nBank to the public or which otherwise becomes part of the public domain through lawful means; (b) information already known to the\nEmployee as documented by written records which predate Employee’s employment with the Bank; (c) information subsequently and\nrightfully received from third parties and not subject to any obligation of confidentiality; or (d) information independently developed by\nEmployee after termination of his employment.\n5.3. Confidential Proprietary and Trade Secret Information of Others. Employee represents that he has disclosed to the Bank any agreement\nto which Employee is or has been a party regarding the confidential information of others and Employee understands that Employee’s\nemployment by the Bank will not require Employee to breach any such agreement. Employee will not disclose such confidential\ninformation to the Bank nor induce the Bank to use any trade secret proprietary information received from another under an agreement\nor understanding prohibiting such use or disclosure.\n5.4. Non-solicitation of Employees. During the period of twelve (12) months after termination of this Agreement, Employee shall not directly\nor indirectly solicit for employment or for independent contractor work any employee of the Bank or the Company, and shall not\nencourage any such employee to leave the employment of the Bank or the Company.\n5.5. Company to Benefit from Provisions. To the extent any provisions of this Article 5 relates in any way to confidential information and\ntrade secrets of the Company, then the obligations of Employee set forth in this Article 5 shall also extend to the Company and inure to\nits benefit.\n6. ARTICLE 6 – BANK’S OWNERSHIP IN EMPLOYEE’S WORK\n6.1. Bank’s Ownership. The Employee agrees that all inventions, discoveries, improvements, trade secrets, formulas, techniques, mask\nworks, processes, and\nPage 5\nknow-how, whether or not patentable, and whether or not reduced to practice, that are conceived or developed during the Employee’s\nemployment with the Bank, either alone or jointly with others, or relating to the Bank or to the banking industry shall be owned\nexclusively by the Bank, and the Employee hereby assigns to the Bank all Employee’s right, title, and interest in all such intellectual\nproperty. The Employee agrees that the Bank shall be the sole owner of all rights pertaining thereto, including but not limited to domestic\nand foreign patents or other rights pertaining thereto, and further agrees to execute all documents that the Bank reasonably determines to\nbe necessary or convenient for use in applying for, prosecuting, perfecting, or enforcing patents or other intellectual property rights,\nincluding the execution of any assignments, patents applications, or other documents that Bank may reasonably request. The Employee\nshall claim no interest in any inventions, copyrighted material, mask works, patents, or patent applications unless the Employee\ndemonstrates that any such invention, copyrighted material, mask, work, patent, or patent application was developed before he began any\nemployment with the Bank. This provision is intended to apply only to the extent permitted by applicable law.\n6.2. Statutory Limitation on Assignment. The Employee understands that the Bank is hereby advising the Employee that any provision in this\nAgreement requiring the Employee to assign rights in any invention does not apply to an invention that qualifies fully under the\nprovisions of Section 2870 of the California Labor Code. That Section provides, as follows:\n(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her\nrights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her\nown time without using the employer’s equipment, supplies, facilities, or trade secret information, except for those inventions that\neither:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or\ndemonstrably anticipated research or development of the employer; or\n(2) Result from any work performed by the employee for the employer.\n(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded\nfrom being required to be assigned under subdivision (a), the provision is against the public policy of this state and is\nunenforceable.\nBy signing this Agreement, the Employee acknowledges that this paragraph shall constitute written notice of the provisions of\nSection 2870.\nPage 6\n6.3 Ownership of Records. Any written record that the Employee may maintain of inventions, discoveries, improvements, trade secrets,\nformulae, processes, or know-how, whether or not patentable and whether or not reduced to practice, and any such records relating to\noriginal works of authorship or mask works made by the Employee, alone or jointly with others, in the course of the Employee’s\nemployment with the Bank shall remain the property of the Bank. The Employee shall furnish the Bank any and all such records\nimmediately upon request.\n6.4 Ownership of Records. If the Employee, during employment with the Bank, is engaged in or associated with the planning or\nimplementation of any project, program, or venture involving the Bank and any third parties, all rights in the project, program, or venture\nshall belong to the Bank, and the Employee shall not be entitled to any interest therein or to any commission, finder’s fee, or other\ncompensation in connection therewith other than the salary to be paid to the Employee as provided in this Agreement.\n6.5 Return of Bank’s Property and Materials. Upon termination of employment with the Bank, Employee shall deliver to the Bank all Bank\nproperty and materials that are in the Employee’s possession or control, including all of the information described as confidential\ninformation in Article 5 of this Agreement and including all other information relating to any inventions, discoveries, improvements,\ntrade secrets, formulae, processes, know-how, original works of authorship, or mask works of the Bank.\n6.6 Company to Benefit from Provisions. To the extent any provisions of this Article 6 relates in any way to information, property, rights,\nprojects, ventures, or inventions of the Company, then the obligations of Employee set forth in this Article 6 shall also extend to the\nCompany and inure to its benefit.\n7. ARTICLE 7 – DISPUTE RESOLUTION AGREEMENT\n7.1 In the event of any dispute, claim or controversy between the Bank and Employee, both parties agree to initially submit such dispute,\nclaim or controversy to non-binding mediation, by a mediator mutually agreed upon by the Bank and Employee. The disputes, claims\nand controversies to be submitted to mediation include, but are not limited to, claims arising from the California Constitution; Title VII\nof the Civil Rights Act of 1964 (42 U.S .C. §2000e); the California Fair Employment and Housing Act (Cal.Govt. Code §12900 et seq.);\nthe Americans with Disabilities Act; the Age Discrimination in Employment Act (29 U.S .C. §§ 621-633a); the Older Workers’ Benefit\nProtection Act; and claims of intentional infliction of emotional distress; breach of contract including but not limited to this Agreement;\nbreach of implied contract; or any other statute or common law principle of similar effect.\n7.2 Either party may commence the non-binding mediation process called for in this Dispute Resolution Agreement by providing written\nnotice upon the\nPage 7\nother party as set forth in paragraph 8.10 of this Agreement. The parties will then agree to submit the claim to a mediator mutually\nagreed upon by the Bank and Employee. The parties will cooperate with one another and with the non-binding mediator, in selecting a\nmediator, and in scheduling the mediation.\n7.3 The Bank shall pay all of the fees and costs of the non-binding mediation and will pay for its own attorney’s fees and will not request any\nfees or costs from the Employee. Should the Employee retain legal counsel, the cost of such legal counsel shall be the sole responsibility\nof the Employee.\n7.4 If the parties fail to resolve their dispute, claim or controversy in non-binding mediation as set forth in paragraphs 7.1-7.3, above, then\nthe Bank and Employee agree to submit such dispute, claim or controversy to final and binding arbitration, by an arbitrator or association\nmutually agreed upon by the Bank and Employee. The disputes, claims and controversies to be submitted to arbitration include, but are\nnot limited to, claims arising from the California Constitution; Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e); the\nCalifornia Fair Employment and Housing Act (Cal.Govt. Code §12900 et seq.); the Americans with Disabilities Act; the Age\nDiscrimination in Employment Act (29 U.S.C. §§ 621-633a); the Older Workers’ Benefit Protection Act; and claims of intentional\ninfliction of emotional distress; breach of contract including but not limited to this Agreement; breach of implied contract; or any other\nstatute or common law principle of similar effect.\n7.5 Either party may commence the arbitration process called for in this Dispute Resolution Agreement by first filing a demand upon the\nother party. The parties will then agree to submit the claim to the arbitrator or association mutually agreed upon by the Bank and\nEmployee. Thereafter, the demand shall be filed with the arbitrator or association mutually agreed upon. The arbitration will be\nconducted in accordance with provisions set forth by such individual or organization, that are in effect at the time of filing the demand\nfor arbitration. The parties will cooperate with one another and with the arbitrator or association, in selecting an arbitrator, and in\nscheduling the arbitration proceedings. The arbitrator will issue a written award discussing the facts and the law. The arbitrator shall have\nthe authority to provide for all types of relief that would otherwise be available in court.\n7.6 For purposes of the arbitration, the parties are entitled to file responsive pleadings, cross complaints, demurrers, motions to strike,\nmotions for summary judgment and motions for judgment on the pleadings pursuant to the California Rules of Civil Procedure Code and\nthe California Evidence Code. The parties are entitled to conduct discovery pursuant to the California Code of Civil Procedure.\n7.7 The Bank shall pay all of the fees and costs of the arbitration and will pay for its own attorney’s fees and will not request any fees or\ncosts from the Employee. Should the Employee retain legal counsel, the cost of such legal counsel shall be the sole responsibility of the\nEmployee.\nPage 8\n7.8 Employee Acknowledgment. By initialing in the space below you are agreeing to have all disputes, claims or controversies arising out of\nor relating to your employment decided by neutral arbitration, and you are giving up any rights you might possess to have those matters\nlitigated in court or jury trial. By initialing in the space below you are giving up your judicial right to appeal. If you refuse to submit to\narbitration after agreeing to this provision, you may be compelled to arbitrate under federal or state law. Your agreement to this\narbitration provision is voluntary.\nI have read and understand the foregoing and agree to submission of all disputes, claims or controversies arising out of or relating to this\nagreement to neutral arbitration in accordance with this agreement.\nEMPLOYEE\nTHE BANK\n7.9 Employee has been advised to seek the advice of an attorney regarding the legal effect of this agreement prior to signing it. The\nEmployee specifically acknowledges that the Employee is entering into this agreement voluntarily and has not been coerced into signing\nthe agreement.\n8. ARTICLE 8 – MISCELLANEOUS\n8.1 Severable Provisions. The provisions of this Agreement are separate and distinct, and if any provisions are determined to be\nunenforceable, in whole or in part, the remaining provisions, and the enforceable parts of any partially unenforceable provisions, shall\nnevertheless be enforceable.\n8.2 Indemnification. The Bank and Employee are entering into an indemnification agreement in the form attached hereto as Exhibit “A.”\nAny payments made to Employee pursuant to such indemnification agreement are subject to and conditioned upon compliance with 12\nC.F.R. Section 545.121, and any rules or regulations promulgated thereunder.\n8.3 Successors and Assigns. The Bank shall require any successor or assignee, whether direct or indirect, by purchase, merger, consolidation,\nor otherwise to all or substantially all of the business or assets of the Bank to expressly assume and agree to perform in writing this\nAgreement in the same manner and to the same extent that the Bank would be required to perform it if no such succession or assignment\nhad taken place. This Agreement shall inure to the benefit of and be binding upon the Bank, its successors and assigns, and upon the\nEmployee and his heirs, executors, administrators and legal representatives. No party to this Agreement may delegate its or his duties\nhereunder without the prior written consent of the other parties to this Agreement.\nPage 9\n8.4 Governing Law. California law shall in all respects govern the validity, construction, and interpretation of this Agreement.\n8.5 Source of Payments. All payments provided in this Agreement shall be timely paid in cash or check from the general funds of the Bank.\nThe Company, however, unconditionally guarantees payment and provision of all amounts and benefits due hereunder to Employee and,\nif such amounts and benefits due from the Bank are not timely paid or provided by the Bank, such amounts and benefits shall be paid or\nprovided by the Company.\n8.6 Incorporation by Reference of Relevant Regulatory Law. This Agreement incorporates by reference all applicable regulatory law,\nincluding but not limited to 12 U.S.C. section 1828(k) and any regulations promulgated under it; 12 U.S .C. section 1818(e); and 12\nC.F.R. section 563.39(b); and all replacement statutes and regulations.\n8.7 Integration. This Agreement, including any documents expressly incorporated into it by the terms of this Agreement, constitute the entire\nagreement between the parties and supersedes all prior oral and written agreements, understandings, negotiations, and discussions\nrelating to the subject matter of this Agreement. With this Agreement the parties rescind any previous employment agreements or\narrangements between themselves.\n8.8 No Oral Modification. Any supplement, modification, waiver, or cancellation of this Agreement is valid only if it is set forth in a writing\nsigned by both parties.\n8.9 No Waiver. The waiver of any provision of this Agreement shall not constitute a waiver of any other provision and, unless otherwise\nstated, shall not constitute a continuing waiver.\n8.10 Notices. Any notices required under this Agreement shall be in writing and shall be deemed to have been given (i) if personally\ndelivered, when so delivered, (ii) if mailed, one week after having been placed in the U.S. mail, registered or certified, postage prepaid,\naddressed to the party to whom it is directed at the address listed below, or (iii) if given by facsimile, when the notice is transmitted to\nthe facsimile number specified below, and confirmation is received:\nIf to the Bank:\n23901 Calabasas Road, Suite 1050\nCalabasas, CA 91302\nAttention: Chairman, Compensation Committee\nWith a copy to the Chairman of the Board\nTelephone: (818) 223-5474\nFacsimile: (818) 223-5487\nPage 10\nIf to Employee:\nJoseph W. Kiley, III\n14734 Valley Vista Boulevard\nSherman Oak, CA 91403\nTelephone: (818) 783-4334\nFacsimile: (818) 783-4523\n9. ARTICLE 9 – ADVICE OF COUNSEL\nEach party acknowledges that it has had an opportunity to negotiate, carefully consider, and receive the advice of any attorney of its own choosing\non the terms of this Agreement before signing it. To the extent that any party does not seek the advice of an attorney, it knowingly and freely waives\nsuch a right.\nACCEPTED AND AGREED TO:\nACCEPTED AND AGREED TO:\nTHE BANK\nEMPLOYEE\nDate: December 21, 2005.\nDate: December 21, 2005.\nBy /s/ Larry B. Faigin\nBy /s/ Joseph W. Kiley, III\nLarry B. Faigin\nJoseph W. Kiley, III\nExecutive Vice President\nFirst Bank of Beverly Hills\nPage 11 EX-10.1 2 dex101.htm EMPLOYMENT AND CONFIDENTIALITY AGREEMENT EXHIBIT 10.1\nThis Employment and Confidentiality Agreement (the “Agreement”) is made between First Bank of Beverly Hills (the “Bank”), a state chartered bank, and Joseph W. Kiley, III (the “Employee”). The Bank is an affiliate of Beverly Hills Bancorp, Inc. a Delaware corporation (the “Company”). Accordingly, on the basis of the representations, warranties, and covenants contained in this Agreement, the parties agree as follows effective as of January 1, 2006 (the “Effective Date™): 1. ARTICLE 1-EMPLOYMENT AND TERM 1.1.\n1.2. The Bank earlier notified Employee that it was not renewing Employee’s employment under the terms of the Employment,\nConfidentiality and Contingent Severance Agreement dated January 1, 2003 (the “Severance Agreement”). Accordingly, Employee’s\nemployment pursuant to that Severance Agreement will expire December 31, 2005. Notwithstanding the fact that the Bank and\nEmployee are entering into a new employment relationship pursuant to this Agreement, the pay and benefits Employee is to receive\nunder the terms of the Severance Agreement pursuant to Section 4.2(b) and (c) thereof shall not be impacted or otherwise affected by\nEmployee’s entering into this Agreement with the Bank and Employee shall begin to receive the pay and benefits outlined in the\nSeverance Agreement as a result of the Bank’s non-renewal of the Severance Agreement commencing on January 1, 2006. Likewise,\nEmployee’s entitlement to receive the 2004 continuous service bonus payments pursuant to the Amended 2004 Annual Incentive Award\nPlan is not altered by this Agreement and thus payable on January 1, 2006.\nTerm. The term of employment under this Agreement shall commence on the Effective Date, and shall continue for a period of twelve\n(12) months thereafter. Either the Bank or Employee may terminate the employment relationship under this Agreement at any time, with\nor without reason, upon thirty (30) days notice to the other. If the Bank provides thirty (30) days notice to terminate the employment\nrelationship, then it will have no further obligation to pay Employee his salary through the remainder of the term of this Agreement. The\nBank may, at its option, offer to continue the employment relationship under this Agreement for an additional 6 month term, upon\nwritten notice to Employee.\n2. ARTICLE 2 - DUTIES OF THE EMPLOYEE 2.1. Position and Duties. The Bank will employ the Employee as its President and Chief Executive Officer, and Employee accepts such\nemployment, on the terms and conditions set forth in this Agreement. Employee will undertake and\nPage 1\n2.2 2.3. 24. perform all duties as required of the position. Employee will render such services and perform such duties and acts in connection with\nany aspect of the Bank’s business as may be lawfully required by the management or the Board of Directors of the Bank. Employee shall\nperform the services contemplated herein faithfully, diligently, to the best of Employee’s ability, and in the best interests of the Bank.\nEmployee will also devote his full and exclusive business time and efforts in rendering such services and to the extent of his authority\nwill endeavor to ensure that the Bank is in compliance with all laws, rules, regulations and policies applicable to the Bank. The\nEmployee shall, at all times, adhere to and obey any and all written internal rules and regulations governing the conduct of the Bank’s\nemployees as established and modified from time to time.\nExclusive Services. During his employment by the Bank, the Employee shall not, without the express prior written consent of the Board\nof Directors of the Bank, engage directly or indirectly in any outside employment or consulting of any kind, whether or not the\nEmployee receives remuneration for such services. Further, the Employee shall not engage in any activity that would impair the\nEmployee’s ability to act and exercise judgment in the best interest of the Bank.\nSubpoenas; Cooperation in Defense of the Bank. If the Employee, during employment or thereafter, is served with any subpoena or other\ncompulsory judicial or administrative process calling for production of confidential information or if the Employee is otherwise required\nby law or regulations to disclose confidential information, the Employee will immediately, before making any such production or\ndisclosure, notify the Bank and provide it with such information as may be necessary for the Bank to take such action as the Bank deems\nnecessary to protect its interests. The Employee agrees to cooperate reasonably with the Bank, whether during employment or thereafter,\nin the prosecution or defense of all threatened claims or actual litigation in which the Bank is or may become a party, whether now\npending or hereafter brought, in which the Employee has knowledge of relevant facts or issues. The Employee shall be reimbursed for\nreasonable expenses for travel time due to cooperating with the prosecution or defense of any litigation for the Bank.\nOther Obligations. The Employee acknowledges that the Bank from time to time may have agreements with other persons or with\nvarious governmental agencies that impose obligations or restrictions on the Bank regarding inventions or creative works made during\nthe course of the Bank’s work under such agreements, or that relate to the confidential nature of such work. The Employee agrees to be\nbound by all such obligations and restrictions of which the Employee is informed by the Bank and to take all action necessary to\ndischarge the obligations of the Bank thereunder.\n \nPage 2\n3. ARTICLE 3 - COMPENSATION 3.1.\n3.2\n3.3.\n3.4. 3.5. 3.6. 3.7. Base Salary. Employee will receive a base salary of $275,000.00 per year, less applicable withholdings. This salary shall be payable\nsemi-monthly in accordance with the Bank’s regular payroll practices.\nBank Employee Benefits. Employee will be entitled to participate in the Bank’s employee benefit plans, including the Amended 2004\nAnnual Incentive Award Plan or its successor, 401(k) savings plan, medical, dental, vision, long-term disability, and short term disability\nbenefits or insurance programs on the same basis as any of those benefits or insurance programs are available generally to other officers\nof similar position under the Bank’s then current personnel policies. The Bank and the Company will not, without Employee’s written\nconsent, make any changes in Employee’s rights or benefits thereunder, except to the extent such changes are made applicable to all\nexecutive-level Bank and Company employees on a non-discriminatory basis. The Bank’s obligations to continue coverage of these\nbenefits under Section 4.2(c) of the above-referenced Severance Agreement will be suspended during the period of time Employee\ncontinues his employment pursuant to this Agreement. Upon the termination of Employee’s employment pursuant to this Agreement, the\nBank’s obligations under Section 4.2(c) of the Severance Agreement will commence and continue under the provisions stated therein.\nVacation. Employee will be eligible to earn vacation time at a rate of 13.33 hours per month up to a total of 160 hours in the calendar\nyear. Vacation time not used in any calendar year may be carried forward, provided, however, that, once the Employee has accrued 200\nhours, Employee shall not be eligible to accrue additional vacation time until he has taken one or more days of vacation.\nReimbursement for Expenses. To the extent Employee incurs necessary and reasonable business expenses in the course of his\nemployment, the Bank will reimburse Employee for such expenses, subject to the Bank’s then current policies regarding reimbursement\nof such business expenses.\nIndemnity and Insurance. Employee shall receive all benefits and privileges to which the Employee is entitled by law or pursuant to the\nBylaws of the Bank or the Company.\n2005 Bonus Payment. Employee will be eligible to receive a 2005 bonus in the amount of $175,000.00 pursuant to the Amended 2004\nAnnual Incentive Award Plan approved by the Board on February 4, 2005. Said bonus payment will be made to Employee on or before\nMarch 15, 2006.\nContinuous Service Bonus Eligibility. Employee will be eligible to receive a continuous service bonus in the amount of $75,000.00 if\nEmployee remains employed through June 30, 2006. If the Bank terminates Employee’s employment pursuant to this Agreement at any\ntime prior to June 30, 2006, Employee will remain eligible to receive this continuous service bonus payment. Should Employee\nterminate his employment relationship with the Bank prior to\nPage 3\nJune 30, 2006, Employee will forfeit his eligibility for the continuous service bonus payment. If Employee is terminated for “cause” as\ndefined in Section 4.1 of this Agreement prior to June 30, 2006, then Employee is not entitled to and forfeits his eligibility for the\ncontinuous service bonus set forth in this Section 3.7. If Employee remains employed with the Bank after June 30, 2006, then, at the\nBank’s Board of Directors’ sole discretion, Employee may be provided a Bonus Opportunity in addition to the bonus mentioned in this\nSection 3.7 as provided in Section 3.2.\n4. ARTICLE 4 - TERMINATION FOR CAUSE 4.1\nTermination for Cause. Termination for cause shall mean termination because of Employee’s incompetence, personal dishonesty, willful\nmisconduct, any breach of fiduciary duty involving personal profit, habitual neglect of duties, intentional failure to perform stated duties,\nwillful violation of any material law, rule or regulation, order or material breach of any employment policy of the Bank or any material\nbreach of any provision of this Agreement. Written notice delivered to Employee is a prerequisite to Termination for Cause and such\ntermination shall be effective on the delivery date of the written notice. Employee shall have the right to receive compensation or other\nbenefits which have already vested or been earned as of the date of notice of Termination for Cause, unless expressly prohibited by the\nterms of any plan, program or agreement governing such compensation or benefits. Employee shall receive no other compensation or\nseverance pay in the event of Termination for Cause.\n5. ARTICLE 5 - CONFIDENTIALITY AND NON-SOLICITATION 5.1.\nNon-disclosure of Confidential and Trade Secret Information. Employee acknowledges that, in the course of employment with the Bank,\nEmployee will have access to and learn confidential information. Confidential information includes but is not limited to information\nabout the Bank’s borrowers and clients, the terms and conditions under which the Bank or its affiliates deal with borrowers and clients,\npricing information for the purchase or sale of assets, financing and securitization arrangements, research materials, manuals, computer\nprograms, formulas analyzing assets portfolios, techniques, data, marketing plans and tactics, technical information, lists of asset\nsources, the processes and practices of the Bank and related companies, information contained in electronic or computer files, financial\ninformation, salary and wage information, and other information that is designated by the Bank or its affiliates as confidential or that\nEmployee knows or should know is confidential information provided by third parties that the Bank or its affiliates are obligated to keep\nconfidential and all other proprietary information of the Bank or its affiliates. Employee acknowledges that all confidential information is\nand shall continue to be the exclusive property of the Bank or its affiliates, whether or not prepared in whole or in part by the Employee\nand whether or not disclosed to or entrusted to the Employee in connection with employment by the Bank. Employee agrees not to\nPage 4\n5.2 5.3. 5.4. 5.5. disclose confidential information, directly or indirectly, under any circumstances or by any means, to any third persons without the prior\nwritten consent of the Bank. Employee agrees that he will not copy, transmit, reproduce, summarize, quote, or make any commercial or\nother use whatsoever of confidential information, except as may be necessary to perform work done by Employee for the Bank.\nEmployee agrees to exercise the highest degree of care in safeguarding confidential information against loss, theft or other inadvertent\ndisclosure and agrees generally to take all steps necessary or requested by the Bank to ensure maintenance of the confidentiality of the\nconfidential information. Employee agrees in addition to the specific covenants contained herein to comply with all of the Bank’s\npolicies and procedures, as well as all applicable laws, for the protection of confidential information.\nExclusions. Section 5.1 shall not apply to the following information: (a) information now or hereafter voluntarily disseminated by the\nBank to the public or which otherwise becomes part of the public domain through lawful means; (b) information already known to the\nEmployee as documented by written records which predate Employee’s employment with the Bank; (c) information subsequently and\nrightfully received from third parties and not subject to any obligation of confidentiality; or (d) information independently developed by\nEmployee after termination of his employment.\nConfidential Proprietary and Trade Secret Information of Others. Employee represents that he has disclosed to the Bank any agreement\nto which Employee is or has been a party regarding the confidential information of others and Employee understands that Employee’s\nemployment by the Bank will not require Employee to breach any such agreement. Employee will not disclose such confidential\ninformation to the Bank nor induce the Bank to use any trade secret proprietary information received from another under an agreement\nor understanding prohibiting such use or disclosure.\nNon-solicitation of Employees. During the period of twelve (12) months after termination of this Agreement, Employee shall not directly\nor indirectly solicit for employment or for independent contractor work any employee of the Bank or the Company, and shall not\nencourage any such employee to leave the employment of the Bank or the Company.\nCompany to Benefit from Provisions. To the extent any provisions of this Article 5 relates in any way to confidential information and\ntrade secrets of the Company, then the obligations of Employee set forth in this Article 5 shall also extend to the Company and inure to\nits benefit.\nARTICLE 6 - BANK’S OWNERSHIP IN EMPLOYEE’S WORK 6.1. Bank’s Ownership. The Employee agrees that all inventions, discoveries, improvements, trade secrets, formulas, techniques, mask\nworks, processes, and\nPage 5\n6.2. know-how, whether or not patentable, and whether or not reduced to practice, that are conceived or developed during the Employee’s\nemployment with the Bank, either alone or jointly with others, or relating to the Bank or to the banking industry shall be owned\nexclusively by the Bank, and the Employee hereby assigns to the Bank all Employee’s right, title, and interest in all such intellectual\nproperty. The Employee agrees that the Bank shall be the sole owner of all rights pertaining thereto, including but not limited to domestic\nand foreign patents or other rights pertaining thereto, and further agrees to execute all documents that the Bank reasonably determines to\nbe necessary or convenient for use in applying for, prosecuting, perfecting, or enforcing patents or other intellectual property rights,\nincluding the execution of any assignments, patents applications, or other documents that Bank may reasonably request. The Employee\nshall claim no interest in any inventions, copyrighted material, mask works, patents, or patent applications unless the Employee\ndemonstrates that any such invention, copyrighted material, mask, work, patent, or patent application was developed before he began any\nemployment with the Bank. This provision is intended to apply only to the extent permitted by applicable law.\nStatutory Limitation on Assignment. The Employee understands that the Bank is hereby advising the Employee that any provision in this\nAgreement requiring the Employee to assign rights in any invention does not apply to an invention that qualifies fully under the\nprovisions of Section 2870 of the California Labor Code. That Section provides, as follows:\n(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her\nrights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her\nown time without using the employer’s equipment, supplies, facilities, or trade secret information, except for those inventions that\neither:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or\ndemonstrably anticipated research or development of the employer; or\n(2) Result from any work performed by the employee for the employer.\n(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded\nfrom being required to be assigned under subdivision (a), the provision is against the public policy of this state and is\nunenforceable.\nBy signing this Agreement, the Employee acknowledges that this paragraph shall constitute written notice of the provisions of\nSection 2870.\nPage 6\n6.3\n6.4\n6.5\n6.6\nOwnership of Records. Any written record that the Employee may maintain of inventions, discoveries, improvements, trade secrets,\nformulae, processes, or know-how, whether or not patentable and whether or not reduced to practice, and any such records relating to\noriginal works of authorship or mask works made by the Employee, alone or jointly with others, in the course of the Employee’s\nemployment with the Bank shall remain the property of the Bank. The Employee shall furnish the Bank any and all such records\nimmediately upon request.\nOwnership of Records. If the Employee, during employment with the Bank, is engaged in or associated with the planning or\nimplementation of any project, program, or venture involving the Bank and any third parties, all rights in the project, program, or venture\nshall belong to the Bank, and the Employee shall not be entitled to any interest therein or to any commission, finder’s fee, or other\ncompensation in connection therewith other than the salary to be paid to the Employee as provided in this Agreement.\nReturn of Bank’s Property and Materials. Upon termination of employment with the Bank, Employee shall deliver to the Bank all Bank\nproperty and materials that are in the Employee’s possession or control, including all of the information described as confidential\ninformation in Article 5 of this Agreement and including all other information relating to any inventions, discoveries, improvements,\ntrade secrets, formulae, processes, know-how, original works of authorship, or mask works of the Bank.\nCompany to Benefit from Provisions. To the extent any provisions of this Article 6 relates in any way to information, property, rights,\nprojects, ventures, or inventions of the Company, then the obligations of Employee set forth in this Article 6 shall also extend to the\nCompany and inure to its benefit.\nARTICLE 7 - DISPUTE RESOLUTION AGREEMENT 7.1\n7.2\nIn the event of any dispute, claim or controversy between the Bank and Employee, both parties agree to initially submit such dispute,\nclaim or controversy to non-binding mediation, by a mediator mutually agreed upon by the Bank and Employee. The disputes, claims\nand controversies to be submitted to mediation include, but are not limited to, claims arising from the California Constitution; Title VII\nof the Civil Rights Act of 1964 (42 U.S.C. §2000e); the California Fair Employment and Housing Act (Cal.Govt. Code §12900 et seq.);\nthe Americans with Disabilities Act; the Age Discrimination in Employment Act (29 U.S.C. §§ 621-633a); the Older Workers’ Benefit\nProtection Act; and claims of intentional infliction of emotional distress; breach of contract including but not limited to this Agreement;\nbreach of implied contract; or any other statute or common law principle of similar effect.\nEither party may commence the non-binding mediation process called for in this Dispute Resolution Agreement by providing written\nnotice upon the\nPage 7\n7.3\n7.4\n7.5\n7.6\n7.7\nother party as set forth in paragraph 8.10 of this Agreement. The parties will then agree to submit the claim to a mediator mutually\nagreed upon by the Bank and Employee. The parties will cooperate with one another and with the non-binding mediator, in selecting a\nmediator, and in scheduling the mediation.\nThe Bank shall pay all of the fees and costs of the non-binding mediation and will pay for its own attorney’s fees and will not request any\nfees or costs from the Employee. Should the Employee retain legal counsel, the cost of such legal counsel shall be the sole responsibility\nof the Employee.\nIf the parties fail to resolve their dispute, claim or controversy in non-binding mediation as set forth in paragraphs 7.1-7.3, above, then\nthe Bank and Employee agree to submit such dispute, claim or controversy to final and binding arbitration, by an arbitrator or association\nmutually agreed upon by the Bank and Employee. The disputes, claims and controversies to be submitted to arbitration include, but are\nnot limited to, claims arising from the California Constitution; Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e); the\nCalifornia Fair Employment and Housing Act (Cal.Govt. Code §12900 et seq.); the Americans with Disabilities Act; the Age\nDiscrimination in Employment Act (29 U.S.C. §§ 621-633a); the Older Workers’ Benefit Protection Act; and claims of intentional\ninfliction of emotional distress; breach of contract including but not limited to this Agreement; breach of implied contract; or any other\nstatute or common law principle of similar effect.\nEither party may commence the arbitration process called for in this Dispute Resolution Agreement by first filing a demand upon the\nother party. The parties will then agree to submit the claim to the arbitrator or association mutually agreed upon by the Bank and\nEmployee. Thereafter, the demand shall be filed with the arbitrator or association mutually agreed upon. The arbitration will be\nconducted in accordance with provisions set forth by such individual or organization, that are in effect at the time of filing the demand\nfor arbitration. The parties will cooperate with one another and with the arbitrator or association, in selecting an arbitrator, and in\nscheduling the arbitration proceedings. The arbitrator will issue a written award discussing the facts and the law. The arbitrator shall have\nthe authority to provide for all types of relief that would otherwise be available in court.\nFor purposes of the arbitration, the parties are entitled to file responsive pleadings, cross complaints, demurrers, motions to strike,\nmotions for summary judgment and motions for judgment on the pleadings pursuant to the California Rules of Civil Procedure Code and\nthe California Evidence Code. The parties are entitled to conduct discovery pursuant to the California Code of Civil Procedure.\nThe Bank shall pay all of the fees and costs of the arbitration and will pay for its own attorney’s fees and will not request any fees or\ncosts from the Employee. Should the Employee retain legal counsel, the cost of such legal counsel shall be the sole responsibility of the\nEmployee.\nPage 8\n7.8\nEmployee Acknowledgment. By initialing in the space below you are agreeing to have all disputes, claims or controversies arising out of\nor relating to your employment decided by neutral arbitration, and you are giving up any rights you might possess to have those matters\nlitigated in court or jury trial. By initialing in the space below you are giving up your judicial right to appeal. If you refuse to submit to\narbitration after agreeing to this provision, you may be compelled to arbitrate under federal or state law. Your agreement to this\narbitration provision is voluntary.\nI have read and understand the foregoing and agree to submission of all disputes, claims or controversies arising out of or relating to this agreement to neutral arbitration in accordance with this agreement. EMPLOYEE THE BANK 7.9\nEmployee has been advised to seek the advice of an attorney regarding the legal effect of this agreement prior to signing it. The\nEmployee specifically acknowledges that the Employee is entering into this agreement voluntarily and has not been coerced into signing\nthe agreement.\nARTICLE 8 - MISCELLANEOUS 8.1\n8.2\n8.3\nSeverable Provisions. The provisions of this Agreement are separate and distinct, and if any provisions are determined to be\nunenforceable, in whole or in part, the remaining provisions, and the enforceable parts of any partially unenforceable provisions, shall\nnevertheless be enforceable.\nIndemnification. The Bank and Employee are entering into an indemnification agreement in the form attached hereto as Exhibit “A.”\nAny payments made to Employee pursuant to such indemnification agreement are subject to and conditioned upon compliance with 12\nC.F.R. Section 545.121, and any rules or regulations promulgated thereunder.\nSuccessors and Assigns. The Bank shall require any successor or assignee, whether direct or indirect, by purchase, merger, consolidation,\nor otherwise to all or substantially all of the business or assets of the Bank to expressly assume and agree to perform in writing this\nAgreement in the same manner and to the same extent that the Bank would be required to perform it if no such succession or assignment\nhad taken place. This Agreement shall inure to the benefit of and be binding upon the Bank, its successors and assigns, and upon the\nEmployee and his heirs, executors, administrators and legal representatives. No party to this Agreement may delegate its or his duties\nhereunder without the prior written consent of the other parties to this Agreement.\nPage 9\n8.4\n8.5\n8.6\n8.7\n8.8\n8.9\n8.10\nGoverning Law. California law shall in all respects govern the validity, construction, and interpretation of this Agreement.\nSource of Payments. All payments provided in this Agreement shall be timely paid in cash or check from the general funds of the Bank.\nThe Company, however, unconditionally guarantees payment and provision of all amounts and benefits due hereunder to Employee and,\nif such amounts and benefits due from the Bank are not timely paid or provided by the Bank, such amounts and benefits shall be paid or\nprovided by the Company.\nincluding but not limited to 12 U.S.C. section 1828(k) and any regulations promulgated under it; 12 U.S.C. section 1818(e); and 12\nC.ER. section 563.39(b); and all replacement statutes and regulations.\nIntegration. This Agreement, including any documents expressly incorporated into it by the terms of this Agreement, constitute the entire\nagreement between the parties and supersedes all prior oral and written agreements, understandings, negotiations, and discussions\nrelating to the subject matter of this Agreement. With this Agreement the parties rescind any previous employment agreements or\narrangements between themselves.\nNo Oral Modification. Any supplement, modification, waiver, or cancellation of this Agreement is valid only if it is set forth in a writing\nsigned by both parties.\nNo Waiver. The waiver of any provision of this Agreement shall not constitute a waiver of any other provision and, unless otherwise\nstated, shall not constitute a continuing waiver.\nNotices. Any notices required under this Agreement shall be in writing and shall be deemed to have been given (i) if personally\ndelivered, when so delivered, (ii) if mailed, one week after having been placed in the U.S. mail, registered or certified, postage prepaid,\naddressed to the party to whom it is directed at the address listed below, or (iii) if given by facsimile, when the notice is transmitted to\nthe facsimile number specified below, and confirmation is received:\nIf to the Bank:\n23901 Calabasas Road, Suite 1050\nCalabasas, CA 91302\nAttention: Chairman, Compensation Committee\nWith a copy to the Chairman of the Board\nTelephone: (818) 223-5474\nFacsimile: (818) 223-5487\nPage 10\nIf to Employee:\nJoseph W. Kiley, III\n14734 Valley Vista Boulevard\nSherman Oak, CA 91403\nTelephone: (818) 783-4334\nFacsimile: (818) 783-4523\n9. ARTICLE 9 - ADVICE OF COUNSEL\nEach party acknowledges that it has had an opportunity to negotiate, carefully consider, and receive the advice of any attorney of its own choosing\non the terms of this Agreement before signing it. To the extent that any party does not seek the advice of an attorney, it knowingly and freely waives\nsuch a right.\nACCEPTED AND AGREED TO: ACCEPTED AND AGREED TO:\nTHE BANK EMPLOYEE\nDate: December 21, 2005. Date: December 21, 2005.\nBy /s/Larry B. Faigin By /s/ Joseph W. Kiley, III\nLarry B. Faigin Joseph W. Kiley, III\nExecutive Vice President\nFirst Bank of Beverly Hills\nPage 11 EX-10.1 2 dex101.htm EMPLOYMENT AND CONFIDENTIALITY AGREEMENT\nEXHIBIT 10.1\nEmployment and Confidentiality Agreement\nThis Employment and Confidentiality Agreement (the "Agreement") is made between First Bank of Beverly Hills (the "Bank"), a state chartered\nbank, and Joseph W. Kiley, III (the "Employee"). The Bank is an affiliate of Beverly Hills Bancorp, Inc. a Delaware corporation (the "Company").\nAccordingly, on the basis of the representations, warranties, and covenants contained in this Agreement, the parties agree as follows effective as of\nJanuary 1, 2006 (the "Effective Date"):\n1.\nARTICLE 1 - EMPLOYMENT AND TERM\n1.1. The Bank earlier notified Employee that it was not renewing Employee's employment under the terms of the Employment,\nConfidentiality and Contingent Severance Agreement dated January 1, 2003 (the "Severance Agreement"). Accordingly, Employee's\nemployment pursuant to that Severance Agreement will expire December 31, 2005. Notwithstanding the fact that the Bank and\nEmployee are entering into a new employment relationship pursuant to this Agreement, the pay and benefits Employee is to receive\nunder the terms of the Severance Agreement pursuant to Section 4.2(b) and (c) thereof shall not be impacted or otherwise affected by\nEmployee's entering into this Agreement with the Bank and Employee shall begin to receive the pay and benefits outlined in the\nSeverance Agreement as a result of the Bank's non-renewal of the Severance Agreement commencing on January 1, 2006. Likewise,\nEmployee's entitlement to receive the 2004 continuous service bonus payments pursuant to the Amended 2004 Annual Incentive Award\nPlan is not altered by this Agreement and thus payable on January 1, 2006.\n1.2.\nTerm. The term of employment under this Agreement shall commence on the Effective Date, and shall continue for a period of twelve\n(12) months thereafter. Either the Bank or Employee may terminate the employment relationship under this Agreement at any time, with\nor without reason, upon thirty (30) days notice to the other. If the Bank provides thirty (30) days notice to terminate the employment\nrelationship, then it will have no further obligation to pay Employee his salary through the remainder of the term of this Agreement\nThe\nBank may, at its option, offer to continue the employment relationship under this Agreement for an additional 6 month term, upon\nwritten notice to Employee.\n2.\nARTICLE 2 - DUTIES OF THE EMPLOYEE\n2.1.\nPosition and Duties. The Bank will employ the Employee as its President and Chief Executive Officer, and Employee accepts such\nemployment, on the terms and conditions set forth in this Agreement. Employee will undertake and\nPage 1\nperform all duties as required of the position. Employee will render such services and perform such duties and acts in connection with\nany aspect of the Bank's business as may be lawfully required by the management or the Board of Directors of the Bank. Employee shall\nperform the services contemplated herein faithfully, diligently, to the best of Employee's ability, and in the best interests of the Bank.\nEmployee will also devote his full and exclusive business time and efforts in rendering such services and to the extent of his authority\nwill endeavor to ensure that the Bank is in compliance with all laws, rules, regulations and policies applicable to the Bank. The\nEmployee shall, at all times, adhere to and obey any and all written internal rules and regulations governing the conduct of the Bank's\nemployees as established and modified from time to time.\n2.2. Exclusive Services. During his employment by the Bank, the Employee shall not, without the express prior written consent of the Board\nof Directors of the Bank, engage directly or indirectly in any outside employment or consulting of any kind, whether or not the\nEmployee receives remuneration for such services. Further, the Employee shall not engage in any activity that would impair the\nEmployee's ability to act and exercise judgment in the best interest of the Bank.\n2.3.\nSubpoenas; Cooperation in Defense of the Bank. If the Employee, during employment or thereafter, is served with any subpoena or other\ncompulsory judicial or administrative process calling for production of confidential information or if the Employee is otherwise required\nby law or regulations to disclose confidential information, the Employee will immediately, before making any such production or\ndisclosure, notify the Bank and provide it with such information as may be necessary for the Bank to take such action as the Bank deems\nnecessary to protect its interests. The Employee agrees to cooperate reasonably with the Bank, whether during employment or thereafter,\nin the prosecution or defense of all threatened claims or actual litigation in which the Bank is or may become a party, whether now\npending or hereafter brought, in which the Employee has knowledge of relevant facts or issues. The Employee shall be reimbursed for\nreasonable expenses for travel time due to cooperating with the prosecution or defense of any litigation for the Bank.\n2.4. Other Obligations. The Employee acknowledges that the Bank from time to time may have agreements with other persons or with\nvarious governmental agencies that impose obligations or restrictions on the Bank regarding inventions or creative works made during\nthe course of the Bank's work under such agreements, or that relate to the confidential nature of such work. The Employee agrees to\nbe\nbound by all such obligations and restrictions of which the Employee is informed by the Bank and to take all action necessary to\ndischarge the obligations of the Bank thereunder.\nPage 2\n3.\nARTICLE 3 - COMPENSATION\n3.1. Base Salary.. Employee will receive a base salary of $275,000.00 per year, less applicable withholdings. This salary shall be payable\nsemi-monthly in accordance with the Bank's regular payroll practices.\n3.2. Bank Employee Benefits. Employee will be entitled to participate in the Bank's employee benefit plans, including the Amended 2004\nAnnual Incentive Award Plan or its successor, 401(k) savings plan, medical, dental, vision, long-term disability, and short term disability\nbenefits or insurance programs on the same basis as any of those benefits or insurance programs are available generally to other officers\nof similar position under the Bank's then current personnel policies. The Bank and the Company will not, without Employee's written\nconsent, make any changes in Employee's rights or benefits thereunder, except to the extent such changes are made applicable to all\nexecutive-level Bank and Company employees on a non-discriminatory basis. The Bank's obligations to continue coverage of these\nbenefits under Section 4.2(c) of the above-referenced Severance Agreement will be suspended during the period of time Employee\ncontinues his employment pursuant to this Agreement. Upon the termination of Employee's employment pursuant to this Agreement, the\nBank's obligations under Section 4.2(c) of the Severance Agreement will commence and continue under the provisions stated therein.\n3.3.\nVacation. Employee will be eligible to earn vacation time at a rate of 13.33 hours per month up to a total of 160 hours in the calendar\nyear. Vacation time not used in any calendar year may be carried forward, provided, however, that, once the Employee has accrued 200\nhours, Employee shall not be eligible to accrue additional vacation time until he has taken one or more days of vacation.\n3.4. Reimbursement for Expenses. To the extent Employee incurs necessary and reasonable business expenses in the course of his\nemployment the Bank will reimburse Employee for such expenses, subject to the Bank's then current policies regarding reimbursement\nof such business expenses.\n3.5. Indemnity. and Insurance. Employee shall receive all benefits and privileges to which the Employee is entitled by law or pursuant to the\nBylaws of the Bank or the Company.\n3.6. 2005 Bonus Payment. Employee will be eligible to receive a 2005 bonus in the amount of $175,000.00 pursuant to the Amended 2004\nAnnual Incentive Award Plan approved by the Board on February 4, 2005. Said bonus payment will be made to Employee on or before\nMarch 15, 2006.\n3.7. Continuous Service Bonus Eligibility. Employee will be eligible to receive a continuous service bonus in the amount of $75,000.00 if\nEmployee remains employed through June 30, 2006. If the Bank terminates Employee's employment pursuant to this Agreement at any\ntime prior to June 30, 2006, Employee will remain eligible to receive this continuous service bonus payment. Should Employee\nterminate his employment relationship with the Bank prior to\nPage 3\nJune 30, 2006, Employee will forfeit his eligibility for the continuous service bonus payment. If Employee is terminated for "cause" as\ndefined in Section 4.1 of this Agreement prior to June 30, 2006, then Employee is not entitled to and forfeits his eligibility for the\ncontinuous service bonus set forth in this Section 3.7. If Employee remains employed with the Bank after June 30, 2006, then, at the\nBank's Board of Directors' sole discretion, Employee may be provided a Bonus Opportunity in addition to the bonus mentioned in this\nSection 3.7 as provided in Section 3.2.\n4.\nARTICLE 4 - TERMINATION FOR CAUSE\n4.1\nTermination fon Cause. Termination for cause shall mean termination because of Employee's incompetence, personal dishonesty, willful\nmisconduct, any breach of fiduciary duty involving persona profit, habitual neglect of duties, intentional failure to perform stated duties,\nwillful violation of any material law, rule or regulation, order or material breach of any employment policy of the Bank or any material\nbreach of any provision of this Agreement. Written notice delivered to Employee is a prerequisite to Termination for Cause and such\ntermination shall be effective on the delivery date of the written notice. Employee shall have the right to receive compensation or other\nbenefits which have already vested or been earned as of the date of notice of Termination for Cause, unless expressly prohibited by the\nterms of any plan, program or agreement governing such compensation or benefits. Employee shall receive no other compensation or\nseverance pay in the event of Termination for Cause.\n5.\nARTICLE 5 - CONFIDENTIALITY AND NON-SOLICITATION\n5.1.\nNon-disclosure of Confidential and Trade Secret Information. Employee acknowledges that, in the course of employment with the Bank,\nEmployee will have access to and learn confidential information. Confidential information includes but is not limited to information\nabout the Bank's borrowers and clients, the terms and conditions under which the Bank or its affiliates deal with borrowers and clients,\npricing information for the purchase or sale of assets, financing and securitization arrangements, research materials, manuals, computer\nprograms, formulas analyzing assets portfolios, techniques, data, marketing plans and tactics, technical information, lists of asset\nsources, the processes and practices of the Bank and related companies, information contained in electronic or computer files, financial\ninformation, salary and wage information, and other information that is designated by the Bank or its affiliates as confidential or that\nEmployee knows or should know is confidential information provided by third parties that the Bank or its affiliates are obligated to keep\nconfidential and all other proprietary information of the Bank or its affiliates. Employee acknowledges that all confidential information\nis\nand shall continue to be the exclusive property of the Bank or its affiliates, whether or not prepared in whole or in part by the Employee\nand whether or not disclosed to or entrusted to the Employee in connection with employment by the Bank. Employee agrees not to\nPage 4\ndisclose confidential information, directly or indirectly, under any circumstances or by any means, to any third persons without the prior\nwritten consent of the Bank. Employee agrees that he will not copy, transmit, reproduce, summarize, quote, or make any commercial or\nother use whatsoever of confidential information, except as may be necessary to perform work done by Employee for the Bank.\nEmployee agrees to exercise the highest degree of care in safeguarding confidential information against loss, theft or other inadvertent\ndisclosure and agrees generally to take all steps necessary or requested by the Bank to ensure maintenance of the confidentiality of the\nconfidential information. Employee agrees in addition to the specific covenants contained herein to comply with all of the Bank's\npolicies and procedures, as well as all applicable laws, for the protection of confidential information.\n5.2. Exclusions Section 5.1 shall not apply to the following information: (a) information now or hereafter voluntarily disseminated by the\nBank to the public or which otherwise becomes part of the public domain through lawful means; (b) information already known to the\nEmployee as documented by written records which predate Employee's employment with the Bank; (c) information subsequently and\nrightfully received from third parties and not subject to any obligation of confidentiality; or (d) information independently developed by\nEmployee after termination of his employment.\n5.3.\nConfidential Proprietary and Trade Secret Information of Others. Employee represents that he has disclosed to the Bank any agreement\nto which Employee is or has been a party regarding the confidential information of others and Employee understands that Employee's\nemployment by the Bank will not require Employee to breach any such agreement. Employee will not disclose such confidential\ninformation to the Bank nor induce the Bank to use any trade secret proprietary information received from another under an agreement\nor understanding prohibiting such use or disclosure.\n5.4. Non-solicitation of Employees. During the period of twelve (12) months after termination of this Agreement, Employee shall not directly\nor indirectly solicit for employment or for independent contractor work any employee of the Bank or the Company, and shall not\nencourage any such employee to leave the employment of the Bank or the Company.\n5.5. Company to Benefit from Provisions. To the extent any provisions of this Article 5 relates in any way to confidential information and\ntrade secrets of the Company, then the obligations of Employee set forth in this Article 5 shall also extend to the Company and inure to\nits benefit.\n6.\nARTICLE 6 - BANK'S OWNERSHIP IN EMPLOYEE'S WORK\n6.1. Bank's Ownership. The Employee agrees that all inventions, discoveries, improvements, trade secrets, formulas, techniques, mask\nworks, processes, and\nPage 5\nknow-how, whether or not patentable, and whether or not reduced to practice, that are conceived or developed during the Employee's\nemployment with the Bank, either alone or jointly with others, or relating to the Bank or to the banking industry shall be owned\nexclusively by the Bank, and the Employee hereby assigns to the Bank all Employee's right, title, and interest in all such intellectual\nproperty. The Employee agrees that the Bank shall be the sole owner of all rights pertaining thereto, including but not limited to domestic\nand foreign patents or other rights pertaining thereto, and further agrees to execute all documents that the Bank reasonably determines to\nbe necessary or convenient for use in applying for, prosecuting, perfecting, or enforcing patents or other intellectual property rights,\nincluding the execution of any assignments, patents applications, or other documents that Bank may reasonably request. The Employee\nshall claim no interest in any inventions, copyrighted material, mask works, patents, or patent applications unless the Employee\ndemonstrates that any such invention, copyrighted material, mask, work, patent, or patent application was developed before he began any\nemployment with the Bank. This provision is intended to apply only to the extent permitted by applicable law.\n6.2. Statutory. Limitation on Assignment. The Employee understands that the Bank is hereby advising the Employee that any provision in this\nAgreement requiring the Employee to assign rights in any invention does not apply to an invention that qualifies fully under the\nprovisions of Section 2870 of the California Labor Code. That Section provides, as follows:\n(a)\nAny provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her\nrights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her\nown time without using the employer's equipment, supplies, facilities, or trade secret information, except for those inventions that\neither:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or\ndemonstrably anticipated research or development of the employer; or\n(2) Result from any work performed by the employee for the employer.\n(b)\nTo the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded\nfrom being required to be assigned under subdivision (a), the provision is against the public policy of this state and is\nunenforceable.\nBy signing this Agreement, the Employee acknowledges that this paragraph shall constitute written notice of the provisions of\nSection 2870.\nPage 6\n6.3\nOwnership of Records. Any written record that the Employee may maintain of inventions, discoveries, improvements, trade secrets,\nformulae, processes, or know-how, whether or not patentable and whether or not reduced to practice, and any such records relating to\noriginal works of authorship or mask works made by the Employee, alone or jointly with others, in the course of the Employee's\nemployment with the Bank shall remain the property of the Bank. The Employee shall furnish the Bank any and all such records\nimmediately upon request.\n6.4\nOwnership of Records. If the Employee, during employment with the Bank, is engaged in or associated with the planning\nor\nimplementation of any project, program, or venture involving the Bank and any third parties, all rights in the project, program, or venture\nshall belong to the Bank, and the Employee shall not be entitled to any interest therein or to any commission, finder's fee, or other\ncompensation in connection therewith other than the salary to be paid to the Employee as provided in this Agreement.\n6.5\nReturn of Bank's Property and Materials. Upon termination of employment with the Bank, Employee shall deliver to the Bank all Bank\nproperty and materials that are in the Employee's possession or control, including all of the information described as confidential\ninformation in Article 5 of this Agreement and including all other information relating to any inventions, discoveries, improvements,\ntrade secrets, formulae, processes, know-how, original works of authorship, or mask works of the Bank.\n6.6\nCompany to Benefit from Provisions. To the extent any provisions of this Article 6 relates in any way to information, property, rights,\nprojects, ventures, or inventions of the Company, then the obligations of Employee set forth in this Article 6 shall also extend to the\nCompany and inure to its benefit.\n7.\nARTICLE 7 - DISPUTE RESOLUTION AGREEMENT\n7.1 In the event of any dispute, claim or controversy between the Bank and Employee, both parties agree to initially submit such dispute,\nclaim or controversy to non-binding mediation, by a mediator mutually agreed upon by the Bank and Employee. The disputes, claims\nand controversies to be submitted to mediation include, but are not limited to, claims arising from the California Constitution; Title VII\nof the Civil Rights Act of 1964 (42 U.S.C. 82000e); the California Fair Employment and Housing Act (Cal.Govt. Code 812900 et seq.);\nthe Americans with Disabilities Act; the Age Discrimination in Employment Act (29 U.S.C. 88 621-633a); the Older Workers' Benefit\nProtection Act; and claims of intentional infliction of emotional distress; breach of contract including but not limited to this Agreement;\nbreach of implied contract; or any other statute or common law principle of similar effect.\n7.2\nEither party may commence the non-binding mediation process called for in this Dispute Resolution Agreement by providing written\nnotice upon the\nPage 7\nother party as set forth in paragraph 8.10 of this Agreement. The parties will then agree to submit the claim to a mediator mutually\nagreed upon by the Bank and Employee. The parties will cooperate with one another and with the non-binding mediator, in selecting a\nmediator, and in scheduling the mediation.\n7.3\nThe Bank shall pay all of the fees and costs of the non-binding mediation and will pay for its own attorney's fees and will not request any\nfees or costs from the Employee. Should the Employee retain legal counsel, the cost of such legal counsel shall be the sole responsibility\nof the Employee.\n7.4\nIf the parties fail to resolve their dispute, claim or controversy in non-binding mediation as set forth in paragraphs 7.1-7.3, above, then\nthe Bank and Employee agree to submit such dispute, claim or controversy to final and binding arbitration, by an arbitrator or association\nmutually agreed upon by the Bank and Employee. The disputes, claims and controversies to be submitted to arbitration include, but are\nnot limited to, claims arising from the California Constitution; Title VII of the Civil Rights Act of 1964 (42 U.S.C. 82000e); the\nCalifornia Fair Employment and Housing Act (Cal.Govt. Code 812900 et seq.); the Americans with Disabilities Act; the Age\nDiscrimination in Employment Act (29 U.S.C. 88 621-633a); the Older Workers' Benefit Protection Act; and claims of intentional\ninfliction of emotional distress; breach of contract including but not limited to this Agreement; breach of implied contract; or any other\nstatute or common law principle of similar effect.\n7.5 Either party may commence the arbitration process called for in this Dispute Resolution Agreement by first filing a demand upon the\nother party. The parties will then agree to submit the claim to the arbitrator or association mutually agreed upon by the Bank and\nEmployee. Thereafter, the demand shall be filed with the arbitrator or association mutually agreed upon. The arbitration will be\nconducted in accordance with provisions set forth by such individual or organization, that are in effect at the time of filing the demand\nfor arbitration. The parties will cooperate with one another and with the arbitrator or association, in selecting an arbitrator, and in\nscheduling the arbitration proceedings. The arbitrator will issue a written award discussing the facts and the law. The arbitrator shall have\nthe authority to provide for all types of relief that would otherwise be available in court.\n7.6 For purposes of the arbitration, the parties are entitled to file responsive pleadings, cross complaints, demurrers, motions to strike,\nmotions for summary judgment and motions for judgment on the pleadings pursuant to the California Rules of Civil Procedure Code and\nthe California Evidence Code. The parties are entitled to conduct discovery pursuant to the California Code of Civil Procedure.\n7.7\nThe Bank shall pay all of the fees and costs of the arbitration and will pay for its own attorney's fees and will not request any fees or\ncosts from the Employee. Should the Employee retain legal counsel, the cost of such legal counsel shall be the sole responsibility of the\nEmployee.\nPage 8\n7.8 Employee Acknowledgment. By initialing in the space below you are agreeing to have all disputes, claims or controversies arising out of\nor relating to your employment decided by neutral arbitration, and you are giving up any rights you might possess to have those matters\nlitigated in court or jury trial. By initialing in the space below you are giving up your judicial right to appeal. If you refuse to submit to\narbitration after agreeing to this provision, you may be compelled to arbitrate under federal or state law. Your agreement to this\narbitration provision is voluntary.\nI have read and understand the foregoing and agree to submission of all disputes, claims or controversies arising out of or relating to this\nagreement to neutral arbitration in accordance with this agreement.\nEMPLOYEE\nTHE BANK\n7.9 Employee has been advised to seek the advice of an attorney regarding the legal effect of this agreement prior to signing it. The\nEmployee specifically acknowledges that the Employee is entering into this agreement voluntarily and has not been coerced into signing\nthe agreement.\n8.\nARTICLE 8 - MISCELLANEOUS\n8.1 Severable Provisions. The provisions of this Agreement are separate and distinct, and if any provisions are determined to be\nunenforceable, in whole or in part, the remaining provisions, and the enforceable parts of any partially unenforceable provisions, shall\nnevertheless be enforceable.\n8.2\nIndemnification. The Bank and Employee are entering into an indemnification agreement in the form attached hereto as Exhibit "A."\nAny payments made to Employee pursuant to such indemnification agreement are subject to and conditioned upon compliance with 12\nC.F.R. Section 545.121, and any rules or regulations promulgated thereunder.\n8.3\nSuccessors and Assigns. The Bank shall require any successor or assignee, whether direct or indirect, by purchase, merger, consolidation,\nor otherwise to all or substantially all of the business or assets of the Bank to expressly assume and agree to perform in writing this\nAgreement in the same manner and to the same extent that the Bank would be required to perform it if no such succession or assignment\nhad taken place. This Agreement shall inure to the benefit of and be binding upon the Bank, its successors and assigns, and upon\nthe\nEmployee and his heirs, executors, administrators and legal representatives. No party to this Agreement may delegate its or his duties\nhereunder without the prior written consent of the other parties to this Agreement.\nPage 9\n8.4 Governing Law. California law shall in all respects govern the validity, construction, and interpretation of this Agreement.\n8.5 Source of Payments. All payments provided in this Agreement shall be timely paid in cash or check from the general funds of the Bank.\nThe Company, however, unconditionally guarantees payment and provision of all amounts and benefits due hereunder to Employee and,\nif such amounts and benefits due from the Bank are not timely paid or provided by the Bank, such amounts and benefits shall be paid or\nprovided by the Company.\n8.6\nIncorporation by. Reference of Relevant Regulatory. Law. This Agreement incorporates by reference all applicable regulatory law,\nincluding but not limited to 12 U.S.C. section 1828(k) and any regulations promulgated under it; 12 U.S.C. section 1818(e); and 12\nC.F.R. section 563.39(b); and all replacement statutes and regulations.\n8.7 Integration. This Agreement, including any documents expressly incorporated into it by the terms of this Agreement, constitute the entire\nagreement between the parties and supersedes all prior oral and written agreements, understandings, negotiations, and discussions\nrelating to the subject matter of this Agreement. With this Agreement the parties rescind any previous employment agreements or\narrangements between themselves.\n8.8 No Oral Modification. Any supplement, modification, waiver, or cancellation of this Agreement is valid only if it is set forth in a writing\nsigned by both parties.\n8.9\nNo Waiver. The waiver of any provision of this Agreement shall not constitute a waiver of any other provision and, unless otherwise\nstated, shall not constitute a continuing waiver.\n8.10 Notices. Any notices required under this Agreement shall be in writing and shall be deemed to have been given (i) if personally\ndelivered, when so delivered, (ii) if mailed, one week after having been placed in the U.S. mail, registered or certified, postage prepaid,\naddressed to the party to whom it is directed at the address listed below, or (iii) if given by facsimile, when the notice is transmitted\nto\nthe facsimile number specified below, and confirmation is received:\nIf to the Bank:\n23901 Calabasas Road, Suite 1050\nCalabasas, CA 91302\nAttention: Chairman, Compensation Committee\nWith a copy to the Chairman of the Board\nTelephone: (818) 223-5474\nFacsimile: (818) 223-5487\nPage 10\nIf to Employee:\nJoseph W. Kiley, III\n14734 Valley Vista Boulevard\nSherman Oak, CA 91403\nTelephone: (818) 783-4334\nFacsimile: (818) 783-4523\n9.\nARTICLE 9 - ADVICE OF COUNSEL\nEach party acknowledges that it has had an opportunity to negotiate, carefully consider, and receive the advice of any attorney of its own choosing\non the terms of this Agreement before signing it. To the extent that any party does not seek the advice of an attorney, it knowingly and freely waives\nsuch a right.\nACCEPTED AND AGREED TO:\nACCEPTED AND AGREED TO:\nTHE BANK\nEMPLOYEE\nDate: December 21, 2005.\nDate: December 21, 2005.\nBy /s/ Larry B. Faigin\nBy /s/ Joseph W. Kiley, III\nLarry B. Faigin\nJoseph W. Kiley, III\nExecutive Vice President\nFirst Bank of Beverly Hills\nPage 11 EX-10.1 2 dex101.htm EMPLOYMENT AND CONFIDENTIALITY AGREEMENT\nEXHIBIT 10.1\nEmployment and Confidentiality Agreement\nThis Employment and Confidentiality Agreement (the “Agreement”) is made between First Bank of Beverly Hills (the “Bank”), a state chartered\nbank, and Joseph W. Kiley, III (the “Employee”). The Bank is an affiliate of Beverly Hills Bancorp, Inc. a Delaware corporation (the “Company”).\nAccordingly, on the basis of the representations, warranties, and covenants contained in this Agreement, the parties agree as follows effective as of\nJanuary 1, 2006 (the “Effective Date”):\n1. ARTICLE 1 – EMPLOYMENT AND TERM\n1.1. The Bank earlier notified Employee that it was not renewing Employee’s employment under the terms of the Employment,\nConfidentiality and Contingent Severance Agreement dated January 1, 2003 (the “Severance Agreement”). Accordingly, Employee’s\nemployment pursuant to that Severance Agreement will expire December 31, 2005. Notwithstanding the fact that the Bank and\nEmployee are entering into a new employment relationship pursuant to this Agreement, the pay and benefits Employee is to receive\nunder the terms of the Severance Agreement pursuant to Section 4.2(b) and (c) thereof shall not be impacted or otherwise affected by\nEmployee’s entering into this Agreement with the Bank and Employee shall begin to receive the pay and benefits outlined in the\nSeverance Agreement as a result of the Bank’s non-renewal of the Severance Agreement commencing on January 1, 2006. Likewise,\nEmployee’s entitlement to receive the 2004 continuous service bonus payments pursuant to the Amended 2004 Annual Incentive Award\nPlan is not altered by this Agreement and thus payable on January 1, 2006.\n1.2. Term. The term of employment under this Agreement shall commence on the Effective Date, and shall continue for a period of twelve\n(12) months thereafter. Either the Bank or Employee may terminate the employment relationship under this Agreement at any time, with\nor without reason, upon thirty (30) days notice to the other. If the Bank provides thirty (30) days notice to terminate the employment\nrelationship, then it will have no further obligation to pay Employee his salary through the remainder of the term of this Agreement. The\nBank may, at its option, offer to continue the employment relationship under this Agreement for an additional 6 month term, upon\nwritten notice to Employee.\n2. ARTICLE 2 – DUTIES OF THE EMPLOYEE\n2.1. Position and Duties. The Bank will employ the Employee as its President and Chief Executive Officer, and Employee accepts such\nemployment, on the terms and conditions set forth in this Agreement. Employee will undertake and\nPage 1\nperform all duties as required of the position. Employee will render such services and perform such duties and acts in connection with\nany aspect of the Bank’s business as may be lawfully required by the management or the Board of Directors of the Bank. Employee shall\nperform the services contemplated herein faithfully, diligently, to the best of Employee’s ability, and in the best interests of the Bank.\nEmployee will also devote his full and exclusive business time and efforts in rendering such services and to the extent of his authority\nwill endeavor to ensure that the Bank is in compliance with all laws, rules, regulations and policies applicable to the Bank. The\nEmployee shall, at all times, adhere to and obey any and all written internal rules and regulations governing the conduct of the Bank’s\nemployees as established and modified from time to time.\n2.2. Exclusive Services. During his employment by the Bank, the Employee shall not, without the express prior written consent of the Board\nof Directors of the Bank, engage directly or indirectly in any outside employment or consulting of any kind, whether or not the\nEmployee receives remuneration for such services. Further, the Employee shall not engage in any activity that would impair the\nEmployee’s ability to act and exercise judgment in the best interest of the Bank.\n2.3. Subpoenas; Cooperation in Defense of the Bank. If the Employee, during employment or thereafter, is served with any subpoena or other\ncompulsory judicial or administrative process calling for production of confidential information or if the Employee is otherwise required\nby law or regulations to disclose confidential information, the Employee will immediately, before making any such production or\ndisclosure, notify the Bank and provide it with such information as may be necessary for the Bank to take such action as the Bank deems\nnecessary to protect its interests. The Employee agrees to cooperate reasonably with the Bank, whether during employment or thereafter,\nin the prosecution or defense of all threatened claims or actual litigation in which the Bank is or may become a party, whether now\npending or hereafter brought, in which the Employee has knowledge of relevant facts or issues. The Employee shall be reimbursed for\nreasonable expenses for travel time due to cooperating with the prosecution or defense of any litigation for the Bank.\n2.4. Other Obligations. The Employee acknowledges that the Bank from time to time may have agreements with other persons or with\nvarious governmental agencies that impose obligations or restrictions on the Bank regarding inventions or creative works made during\nthe course of the Bank’s work under such agreements, or that relate to the confidential nature of such work. The Employee agrees to be\nbound by all such obligations and restrictions of which the Employee is informed by the Bank and to take all action necessary to\ndischarge the obligations of the Bank thereunder.\nPage 2\n3. ARTICLE 3 – COMPENSATION\n3.1. Base Salary. Employee will receive a base salary of $275,000.00 per year, less applicable withholdings. This salary shall be payable\nsemi-monthly in accordance with the Bank’s regular payroll practices.\n3.2. Bank Employee Benefits. Employee will be entitled to participate in the Bank’s employee benefit plans, including the Amended 2004\nAnnual Incentive Award Plan or its successor, 401(k) savings plan, medical, dental, vision, long-term disability, and short term disability\nbenefits or insurance programs on the same basis as any of those benefits or insurance programs are available generally to other officers\nof similar position under the Bank’s then current personnel policies. The Bank and the Company will not, without Employee’s written\nconsent, make any changes in Employee’s rights or benefits thereunder, except to the extent such changes are made applicable to all\nexecutive-level Bank and Company employees on a non-discriminatory basis. The Bank’s obligations to continue coverage of these\nbenefits under Section 4.2(c) of the above-referenced Severance Agreement will be suspended during the period of time Employee\ncontinues his employment pursuant to this Agreement. Upon the termination of Employee’s employment pursuant to this Agreement, the\nBank’s obligations under Section 4.2(c) of the Severance Agreement will commence and continue under the provisions stated therein.\n3.3. Vacation. Employee will be eligible to earn vacation time at a rate of 13.33 hours per month up to a total of 160 hours in the calendar\nyear. Vacation time not used in any calendar year may be carried forward, provided, however, that, once the Employee has accrued 200\nhours, Employee shall not be eligible to accrue additional vacation time until he has taken one or more days of vacation.\n3.4. Reimbursement for Expenses. To the extent Employee incurs necessary and reasonable business expenses in the course of his\nemployment, the Bank will reimburse Employee for such expenses, subject to the Bank’s then current policies regarding reimbursement\nof such business expenses.\n3.5. Indemnity and Insurance. Employee shall receive all benefits and privileges to which the Employee is entitled by law or pursuant to the\nBylaws of the Bank or the Company.\n3.6. 2005 Bonus Payment. Employee will be eligible to receive a 2005 bonus in the amount of $175,000.00 pursuant to the Amended 2004\nAnnual Incentive Award Plan approved by the Board on February 4, 2005. Said bonus payment will be made to Employee on or before\nMarch 15, 2006.\n3.7. Continuous Service Bonus Eligibility. Employee will be eligible to receive a continuous service bonus in the amount of $75,000.00 if\nEmployee remains employed through June 30, 2006. If the Bank terminates Employee’s employment pursuant to this Agreement at any\ntime prior to June 30, 2006, Employee will remain eligible to receive this continuous service bonus payment. Should Employee\nterminate his employment relationship with the Bank prior to\nPage 3\nJune 30, 2006, Employee will forfeit his eligibility for the continuous service bonus payment. If Employee is terminated for “cause” as\ndefined in Section 4.1 of this Agreement prior to June 30, 2006, then Employee is not entitled to and forfeits his eligibility for the\ncontinuous service bonus set forth in this Section 3.7. If Employee remains employed with the Bank after June 30, 2006, then, at the\nBank’s Board of Directors’ sole discretion, Employee may be provided a Bonus Opportunity in addition to the bonus mentioned in this\nSection 3.7 as provided in Section 3.2 .\n4. ARTICLE 4 – TERMINATION FOR CAUSE\n4.1 Termination for Cause. Termination for cause shall mean termination because of Employee’s incompetence, personal dishonesty, willful\nmisconduct, any breach of fiduciary duty involving personal profit, habitual neglect of duties, intentional failure to perform stated duties,\nwillful violation of any material law, rule or regulation, order or material breach of any employment policy of the Bank or any material\nbreach of any provision of this Agreement. Written notice delivered to Employee is a prerequisite to Termination for Cause and such\ntermination shall be effective on the delivery date of the written notice. Employee shall have the right to receive compensation or other\nbenefits which have already vested or been earned as of the date of notice of Termination for Cause, unless expressly prohibited by the\nterms of any plan, program or agreement governing such compensation or benefits. Employee shall receive no other compensation or\nseverance pay in the event of Termination for Cause.\n5. ARTICLE 5 – CONFIDENTIALITY AND NON-SOLICITATION\n5.1. Non-disclosure of Confidential and Trade Secret Information. Employee acknowledges that, in the course of employment with the Bank,\nEmployee will have access to and learn confidential information. Confidential information includes but is not limited to information\nabout the Bank’s borrowers and clients, the terms and conditions under which the Bank or its affiliates deal with borrowers and clients,\npricing information for the purchase or sale of assets, financing and securitization arrangements, research materials, manuals, computer\nprograms, formulas analyzing assets portfolios, techniques, data, marketing plans and tactics, technical information, lists of asset\nsources, the processes and practices of the Bank and related companies, information contained in electronic or computer files, financial\ninformation, salary and wage information, and other information that is designated by the Bank or its affiliates as confidential or that\nEmployee knows or should know is confidential information provided by third parties that the Bank or its affiliates are obligated to keep\nconfidential and all other proprietary information of the Bank or its affiliates. Employee acknowledges that all confidential information is\nand shall continue to be the exclusive property of the Bank or its affiliates, whether or not prepared in whole or in part by the Employee\nand whether or not disclosed to or entrusted to the Employee in connection with employment by the Bank. Employee agrees not to\nPage 4\ndisclose confidential information, directly or indirectly, under any circumstances or by any means, to any third persons without the prior\nwritten consent of the Bank. Employee agrees that he will not copy, transmit, reproduce, summarize, quote, or make any commercial or\nother use whatsoever of confidential information, except as may be necessary to perform work done by Employee for the Bank.\nEmployee agrees to exercise the highest degree of care in safeguarding confidential information against loss, theft or other inadvertent\ndisclosure and agrees generally to take all steps necessary or requested by the Bank to ensure maintenance of the confidentiality of the\nconfidential information. Employee agrees in addition to the specific covenants contained herein to comply with all of the Bank’s\npolicies and procedures, as well as all applicable laws, for the protection of confidential information.\n5.2. Exclusions. Section 5.1 shall not apply to the following information: (a) information now or hereafter voluntarily disseminated by the\nBank to the public or which otherwise becomes part of the public domain through lawful means; (b) information already known to the\nEmployee as documented by written records which predate Employee’s employment with the Bank; (c) information subsequently and\nrightfully received from third parties and not subject to any obligation of confidentiality; or (d) information independently developed by\nEmployee after termination of his employment.\n5.3. Confidential Proprietary and Trade Secret Information of Others. Employee represents that he has disclosed to the Bank any agreement\nto which Employee is or has been a party regarding the confidential information of others and Employee understands that Employee’s\nemployment by the Bank will not require Employee to breach any such agreement. Employee will not disclose such confidential\ninformation to the Bank nor induce the Bank to use any trade secret proprietary information received from another under an agreement\nor understanding prohibiting such use or disclosure.\n5.4. Non-solicitation of Employees. During the period of twelve (12) months after termination of this Agreement, Employee shall not directly\nor indirectly solicit for employment or for independent contractor work any employee of the Bank or the Company, and shall not\nencourage any such employee to leave the employment of the Bank or the Company.\n5.5. Company to Benefit from Provisions. To the extent any provisions of this Article 5 relates in any way to confidential information and\ntrade secrets of the Company, then the obligations of Employee set forth in this Article 5 shall also extend to the Company and inure to\nits benefit.\n6. ARTICLE 6 – BANK’S OWNERSHIP IN EMPLOYEE’S WORK\n6.1. Bank’s Ownership. The Employee agrees that all inventions, discoveries, improvements, trade secrets, formulas, techniques, mask\nworks, processes, and\nPage 5\nknow-how, whether or not patentable, and whether or not reduced to practice, that are conceived or developed during the Employee’s\nemployment with the Bank, either alone or jointly with others, or relating to the Bank or to the banking industry shall be owned\nexclusively by the Bank, and the Employee hereby assigns to the Bank all Employee’s right, title, and interest in all such intellectual\nproperty. The Employee agrees that the Bank shall be the sole owner of all rights pertaining thereto, including but not limited to domestic\nand foreign patents or other rights pertaining thereto, and further agrees to execute all documents that the Bank reasonably determines to\nbe necessary or convenient for use in applying for, prosecuting, perfecting, or enforcing patents or other intellectual property rights,\nincluding the execution of any assignments, patents applications, or other documents that Bank may reasonably request. The Employee\nshall claim no interest in any inventions, copyrighted material, mask works, patents, or patent applications unless the Employee\ndemonstrates that any such invention, copyrighted material, mask, work, patent, or patent application was developed before he began any\nemployment with the Bank. This provision is intended to apply only to the extent permitted by applicable law.\n6.2. Statutory Limitation on Assignment. The Employee understands that the Bank is hereby advising the Employee that any provision in this\nAgreement requiring the Employee to assign rights in any invention does not apply to an invention that qualifies fully under the\nprovisions of Section 2870 of the California Labor Code. That Section provides, as follows:\n(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her\nrights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her\nown time without using the employer’s equipment, supplies, facilities, or trade secret information, except for those inventions that\neither:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or\ndemonstrably anticipated research or development of the employer; or\n(2) Result from any work performed by the employee for the employer.\n(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded\nfrom being required to be assigned under subdivision (a), the provision is against the public policy of this state and is\nunenforceable.\nBy signing this Agreement, the Employee acknowledges that this paragraph shall constitute written notice of the provisions of\nSection 2870.\nPage 6\n6.3 Ownership of Records. Any written record that the Employee may maintain of inventions, discoveries, improvements, trade secrets,\nformulae, processes, or know-how, whether or not patentable and whether or not reduced to practice, and any such records relating to\noriginal works of authorship or mask works made by the Employee, alone or jointly with others, in the course of the Employee’s\nemployment with the Bank shall remain the property of the Bank. The Employee shall furnish the Bank any and all such records\nimmediately upon request.\n6.4 Ownership of Records. If the Employee, during employment with the Bank, is engaged in or associated with the planning or\nimplementation of any project, program, or venture involving the Bank and any third parties, all rights in the project, program, or venture\nshall belong to the Bank, and the Employee shall not be entitled to any interest therein or to any commission, finder’s fee, or other\ncompensation in connection therewith other than the salary to be paid to the Employee as provided in this Agreement.\n6.5 Return of Bank’s Property and Materials. Upon termination of employment with the Bank, Employee shall deliver to the Bank all Bank\nproperty and materials that are in the Employee’s possession or control, including all of the information described as confidential\ninformation in Article 5 of this Agreement and including all other information relating to any inventions, discoveries, improvements,\ntrade secrets, formulae, processes, know-how, original works of authorship, or mask works of the Bank.\n6.6 Company to Benefit from Provisions. To the extent any provisions of this Article 6 relates in any way to information, property, rights,\nprojects, ventures, or inventions of the Company, then the obligations of Employee set forth in this Article 6 shall also extend to the\nCompany and inure to its benefit.\n7. ARTICLE 7 – DISPUTE RESOLUTION AGREEMENT\n7.1 In the event of any dispute, claim or controversy between the Bank and Employee, both parties agree to initially submit such dispute,\nclaim or controversy to non-binding mediation, by a mediator mutually agreed upon by the Bank and Employee. The disputes, claims\nand controversies to be submitted to mediation include, but are not limited to, claims arising from the California Constitution; Title VII\nof the Civil Rights Act of 1964 (42 U.S .C. §2000e); the California Fair Employment and Housing Act (Cal.Govt. Code §12900 et seq.);\nthe Americans with Disabilities Act; the Age Discrimination in Employment Act (29 U.S .C. §§ 621-633a); the Older Workers’ Benefit\nProtection Act; and claims of intentional infliction of emotional distress; breach of contract including but not limited to this Agreement;\nbreach of implied contract; or any other statute or common law principle of similar effect.\n7.2 Either party may commence the non-binding mediation process called for in this Dispute Resolution Agreement by providing written\nnotice upon the\nPage 7\nother party as set forth in paragraph 8.10 of this Agreement. The parties will then agree to submit the claim to a mediator mutually\nagreed upon by the Bank and Employee. The parties will cooperate with one another and with the non-binding mediator, in selecting a\nmediator, and in scheduling the mediation.\n7.3 The Bank shall pay all of the fees and costs of the non-binding mediation and will pay for its own attorney’s fees and will not request any\nfees or costs from the Employee. Should the Employee retain legal counsel, the cost of such legal counsel shall be the sole responsibility\nof the Employee.\n7.4 If the parties fail to resolve their dispute, claim or controversy in non-binding mediation as set forth in paragraphs 7.1-7.3, above, then\nthe Bank and Employee agree to submit such dispute, claim or controversy to final and binding arbitration, by an arbitrator or association\nmutually agreed upon by the Bank and Employee. The disputes, claims and controversies to be submitted to arbitration include, but are\nnot limited to, claims arising from the California Constitution; Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e); the\nCalifornia Fair Employment and Housing Act (Cal.Govt. Code §12900 et seq.); the Americans with Disabilities Act; the Age\nDiscrimination in Employment Act (29 U.S.C. §§ 621-633a); the Older Workers’ Benefit Protection Act; and claims of intentional\ninfliction of emotional distress; breach of contract including but not limited to this Agreement; breach of implied contract; or any other\nstatute or common law principle of similar effect.\n7.5 Either party may commence the arbitration process called for in this Dispute Resolution Agreement by first filing a demand upon the\nother party. The parties will then agree to submit the claim to the arbitrator or association mutually agreed upon by the Bank and\nEmployee. Thereafter, the demand shall be filed with the arbitrator or association mutually agreed upon. The arbitration will be\nconducted in accordance with provisions set forth by such individual or organization, that are in effect at the time of filing the demand\nfor arbitration. The parties will cooperate with one another and with the arbitrator or association, in selecting an arbitrator, and in\nscheduling the arbitration proceedings. The arbitrator will issue a written award discussing the facts and the law. The arbitrator shall have\nthe authority to provide for all types of relief that would otherwise be available in court.\n7.6 For purposes of the arbitration, the parties are entitled to file responsive pleadings, cross complaints, demurrers, motions to strike,\nmotions for summary judgment and motions for judgment on the pleadings pursuant to the California Rules of Civil Procedure Code and\nthe California Evidence Code. The parties are entitled to conduct discovery pursuant to the California Code of Civil Procedure.\n7.7 The Bank shall pay all of the fees and costs of the arbitration and will pay for its own attorney’s fees and will not request any fees or\ncosts from the Employee. Should the Employee retain legal counsel, the cost of such legal counsel shall be the sole responsibility of the\nEmployee.\nPage 8\n7.8 Employee Acknowledgment. By initialing in the space below you are agreeing to have all disputes, claims or controversies arising out of\nor relating to your employment decided by neutral arbitration, and you are giving up any rights you might possess to have those matters\nlitigated in court or jury trial. By initialing in the space below you are giving up your judicial right to appeal. If you refuse to submit to\narbitration after agreeing to this provision, you may be compelled to arbitrate under federal or state law. Your agreement to this\narbitration provision is voluntary.\nI have read and understand the foregoing and agree to submission of all disputes, claims or controversies arising out of or relating to this\nagreement to neutral arbitration in accordance with this agreement.\nEMPLOYEE\nTHE BANK\n7.9 Employee has been advised to seek the advice of an attorney regarding the legal effect of this agreement prior to signing it. The\nEmployee specifically acknowledges that the Employee is entering into this agreement voluntarily and has not been coerced into signing\nthe agreement.\n8. ARTICLE 8 – MISCELLANEOUS\n8.1 Severable Provisions. The provisions of this Agreement are separate and distinct, and if any provisions are determined to be\nunenforceable, in whole or in part, the remaining provisions, and the enforceable parts of any partially unenforceable provisions, shall\nnevertheless be enforceable.\n8.2 Indemnification. The Bank and Employee are entering into an indemnification agreement in the form attached hereto as Exhibit “A.”\nAny payments made to Employee pursuant to such indemnification agreement are subject to and conditioned upon compliance with 12\nC.F.R. Section 545.121, and any rules or regulations promulgated thereunder.\n8.3 Successors and Assigns. The Bank shall require any successor or assignee, whether direct or indirect, by purchase, merger, consolidation,\nor otherwise to all or substantially all of the business or assets of the Bank to expressly assume and agree to perform in writing this\nAgreement in the same manner and to the same extent that the Bank would be required to perform it if no such succession or assignment\nhad taken place. This Agreement shall inure to the benefit of and be binding upon the Bank, its successors and assigns, and upon the\nEmployee and his heirs, executors, administrators and legal representatives. No party to this Agreement may delegate its or his duties\nhereunder without the prior written consent of the other parties to this Agreement.\nPage 9\n8.4 Governing Law. California law shall in all respects govern the validity, construction, and interpretation of this Agreement.\n8.5 Source of Payments. All payments provided in this Agreement shall be timely paid in cash or check from the general funds of the Bank.\nThe Company, however, unconditionally guarantees payment and provision of all amounts and benefits due hereunder to Employee and,\nif such amounts and benefits due from the Bank are not timely paid or provided by the Bank, such amounts and benefits shall be paid or\nprovided by the Company.\n8.6 Incorporation by Reference of Relevant Regulatory Law. This Agreement incorporates by reference all applicable regulatory law,\nincluding but not limited to 12 U.S.C. section 1828(k) and any regulations promulgated under it; 12 U.S .C. section 1818(e); and 12\nC.F.R. section 563.39(b); and all replacement statutes and regulations.\n8.7 Integration. This Agreement, including any documents expressly incorporated into it by the terms of this Agreement, constitute the entire\nagreement between the parties and supersedes all prior oral and written agreements, understandings, negotiations, and discussions\nrelating to the subject matter of this Agreement. With this Agreement the parties rescind any previous employment agreements or\narrangements between themselves.\n8.8 No Oral Modification. Any supplement, modification, waiver, or cancellation of this Agreement is valid only if it is set forth in a writing\nsigned by both parties.\n8.9 No Waiver. The waiver of any provision of this Agreement shall not constitute a waiver of any other provision and, unless otherwise\nstated, shall not constitute a continuing waiver.\n8.10 Notices. Any notices required under this Agreement shall be in writing and shall be deemed to have been given (i) if personally\ndelivered, when so delivered, (ii) if mailed, one week after having been placed in the U.S. mail, registered or certified, postage prepaid,\naddressed to the party to whom it is directed at the address listed below, or (iii) if given by facsimile, when the notice is transmitted to\nthe facsimile number specified below, and confirmation is received:\nIf to the Bank:\n23901 Calabasas Road, Suite 1050\nCalabasas, CA 91302\nAttention: Chairman, Compensation Committee\nWith a copy to the Chairman of the Board\nTelephone: (818) 223-5474\nFacsimile: (818) 223-5487\nPage 10\nIf to Employee:\nJoseph W. Kiley, III\n14734 Valley Vista Boulevard\nSherman Oak, CA 91403\nTelephone: (818) 783-4334\nFacsimile: (818) 783-4523\n9. ARTICLE 9 – ADVICE OF COUNSEL\nEach party acknowledges that it has had an opportunity to negotiate, carefully consider, and receive the advice of any attorney of its own choosing\non the terms of this Agreement before signing it. To the extent that any party does not seek the advice of an attorney, it knowingly and freely waives\nsuch a right.\nACCEPTED AND AGREED TO:\nACCEPTED AND AGREED TO:\nTHE BANK\nEMPLOYEE\nDate: December 21, 2005.\nDate: December 21, 2005.\nBy /s/ Larry B. Faigin\nBy /s/ Joseph W. Kiley, III\nLarry B. Faigin\nJoseph W. Kiley, III\nExecutive Vice President\nFirst Bank of Beverly Hills\nPage 11 d14ccc86989f0ebb66cf2cedd1085b98.pdf effective_date jurisdiction party term EX-99.(E)(2) 2 a2226442zex-99_e2.htm EX-99.(E)(2)\nExhibit (e)(2)\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality Agreement (“Agreement”) is entered into effective as of March 16, 2015 (the “Effective Date”) by and between\nGalil Medical, Inc., and Perseon Corporation, a Delaware corporation. The parties wish to protect and preserve the confidential and/or\nproprietary nature of information and materials that may be disclosed or made available to each other in connection with certain discussions,\nnegotiations or dealings between the parties relating to one or more possible business transactions or business relationships (the “Purpose”). In\nconsideration of the foregoing and the rights and obligations set forth herein, both parties hereby agree as follows:\n1.\nPROPRIETARY INFORMATION.\n“Proprietary Information” means any and all information and material disclosed by the disclosing party or any parent company, subsidiary or\nother affiliate of the disclosing party (“Discloser”) to the receiving party (“Recipient”) (whether in writing, or in oral, graphic, electronic or any\nother form). Proprietary Information, includes, without limitation, any (a) trade secret, know-how, idea, invention, process, technique, algorithm,\nprogram (whether in source code or object code form), hardware, device, design, schematic, drawing, formula, data, plan, strategy and forecast\nof, and (b) technical, engineering, manufacturing, product, marketing, servicing, pricing, financial, personnel and other information and materials\nof, Discloser and its employees, consultants, investors, affiliates, licensors, suppliers, vendors, customers, clients and other persons and entities.\n2.\nNON-DISCLOSURE AND LIMITED USE.\nRecipient shall hold all Proprietary Information in strict confidence and shall not disclose any Proprietary Information to any third party, other\nthan to its employees, agents, consultants, subsidiaries and other affiliates who need to know such information and who are bound by restrictions\nregarding disclosure and use of such information comparable to and no less restrictive than those set forth herein. Recipient shall not use any\nProprietary Information for the benefit of itself or any third party or for any purpose other than the Purpose. Recipient shall take the same degree\nof care that it uses to protect its own confidential and proprietary information and materials of similar nature and importance (but in no event less\nthan reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication or dissemination of the Proprietary\nInformation. Recipient shall not make any copies of the Proprietary Information except to the extent reasonably necessary to carry out the\nPurpose, or unless otherwise approved in writing in advance by Discloser. Recipient shall not decompile, disassemble or otherwise reverse\nengineer any Proprietary Information or any portion thereof, or determine or attempt to determine any source code, algorithms, methods or\ntechniques embodied in any Proprietary Information or any portion thereof. If the parties mutually agree to enter into or continue a business\nrelationship or other arrangement relating to the Purpose and do not enter into a new confidentiality agreement, the terms and conditions set forth\nherein shall also apply to any information and/or materials related to, or activities undertaken in connection with, carrying out such business\nrelationship or other arrangement, unless otherwise agreed to by the parties in\n1\nwriting. Except as required by law or as reasonably required to assert its rights hereunder, neither party shall disclose to any third party, other\nthan to its employees, agents, consultants, subsidiaries and other affiliates who need to know such information and who are bound by restrictions\nregarding disclosure and use of such information comparable to and no less restrictive than those set forth herein, the existence or substance of\nthe discussions between the parties or any terms of this Agreement or any related agreement between the parties (or any matters relating thereto),\nwithout the prior written consent of the other party. For purposes of this Agreement, an “affiliate” includes, without limitation, any entity that on\nor after the date of this Agreement controls, is controlled by or is under common control with a party. The obligations of this Section 2 with\nrespect to any item of Proprietary Information shall survive any termination or expiration of this Agreement for three years.\n3.\nSCOPE.\nThe obligations of this Agreement, including the restrictions on disclosure and use, shall not apply with respect to any Proprietary Information to\nthe extent such Proprietary Information: (a) is or becomes publicly known through no act or omission of Recipient; (b) was rightfully known by\nRecipient before receipt from Discloser, as evidenced by Recipient’s contemporaneous written records; (c) becomes rightfully known to\nRecipient without confidential or proprietary restriction from a source other than Discloser that does not owe a duty of confidentiality to\nDiscloser with respect to such Proprietary Information; or (d) is independently developed by Recipient without the use of or reference to the\nProprietary Information of Discloser, as evidenced by Recipient’s contemporaneous written records. In addition, Recipient may use or disclose\nProprietary Information to the extent (i) approved by Discloser, or (ii) Recipient is legally compelled to disclose such Proprietary Information,\nprovided, however, that prior to any such compelled disclosure, Recipient shall give Discloser reasonable notice of any such disclosure and shall\ncooperate with Discloser in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure\nand/or use of the Proprietary Information.\n4.\nOWNERSHIP.\nAll Proprietary Information of Discloser (including, without limitation, all copies, extracts and portions thereof) is and shall remain the sole\nproperty of Discloser. Recipient does not acquire (by license or otherwise, whether express or implied) any intellectual property rights or other\nrights under this Agreement or any disclosure hereunder, except the limited right to use such Proprietary Information in accordance with the\nexpress provisions of this Agreement. All rights relating to the Proprietary Information that are not expressly granted hereunder to Recipient are\nreserved and retained by Discloser.\n5.\nNO WARRANTY.\nExcept as may be otherwise agreed to in writing, no warranties of any kind, whether express or implied, are given by Discloser with respect to\nany Proprietary Information or any use thereof, and the Proprietary Information is provided on an “AS IS” basis. Discloser hereby expressly\ndisclaims all such warranties, including any implied warranties of merchantability and fitness for\n2\na particular purpose and any warranties arising out of course of performance, course of dealing or usage of trade,\n6.\nTERMINATION.\nEither party may terminate this Agreement at any time upon written notice to the other party, and neither party shall have any obligation to\ndisclose any Proprietary Information or to continue discussions relating to, or to enter into or continue any arrangement or agreement relating to,\nthe Purpose or any other matter, except as agreed in writing by the parties. Any provisions of this Agreement, which are intended by their\nspecific terms or by necessary implication, to survive the expiration or termination of this Agreement shall so survive.\n7.\nREMEDIES.\nRecipient agrees that, due to the unique nature of the Proprietary Information, the unauthorized disclosure or use of the Proprietary Information\nof Discloser may cause irreparable harm and significant injury to Discloser, the extent of which may be difficult to ascertain and for which there\nmay be no adequate remedy at law. Accordingly, Recipient agrees that Discloser, in addition to any other available remedies, shall have the right\nto seek an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Agreement. Recipient shall notify\nDiscloser in writing immediately upon Recipient’s becoming aware of any such breach or threatened breach.\n8.\nRETURN OF MATERIALS.\nUpon any termination of discussions or any business relationship between the parties related to the Purpose, or of this Agreement, or at any time\nat Discloser ’s request, (a) Recipient shall promptly return to Discloser or destroy all materials (in written, electronic or other form) containing or\nconstituting Proprietary Information of Discloser, including any copies and extracts thereof, and (b) Recipient shall not use such Proprietary\nInformation in any way for any purpose.\n9.\nATTORNEY-CLIENT PRIVILEGED INFORMATION\nTo the extent that any Proprietary Information may include material subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that\nthey have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Proprietary Information provided by the Discloser that is\nentitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such\nprotection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this agreement obligates any party to reveal\nmaterial subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\n3\n10.\nREGULATION FD CONFIDENTIALITY AGREEMENT\nThe parties acknowledge that they are aware, and that they will advise their representatives who are informed as to the matters which are the\nsubject of this Agreement, (i) that the United States securities laws prohibit any person who has received from an issuer material, non-public\ninformation concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to\npurchase or sell securities and (ii) that they are familiar with the Securities Exchange Act of 1934 (the “Exchange Act”), and the rules and\nregulations promulgated thereunder, and they agree that they will neither use nor cause any person to use any Proprietary Information in\ncontravention of the Exchange Act or such rules and regulations, including without limitation Rules 10b-5 and 14e-3 . This Agreement is a\nconfidentiality agreement for purposes of Regulation FD.\n11.\nMISCELLANEOUS.\nThis Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior or\ncontemporaneous representations, negotiations, conditions, communications and agreements, whether oral or written, between the parties relating\nto the subject matter hereof and all past courses of dealing or industry custom. No amendment, modification or waiver of any provision of this\nAgreement shall be effective unless in writing and signed by duly authorized signatories of both parties. The waiver by either party of a default\nunder any provision of this Agreement shall not be construed as a waiver of any subsequent default under the same or any other provision of this\nAgreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have\nhereunder operate as a waiver of any right or remedy. Any lawsuit, action or proceeding arising out of or relating to this Agreement shall be\ndecided in accordance with the laws of the State of Utah, without giving effect to principles of conflicts of laws. Any lawsuit, action or\nproceeding arising out of or relating to this Agreement shall be commenced in a federal or state court located in the County of Salt Lake, Utah,\nand each party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such lawsuit, action or proceeding. This\nAgreement and the rights and obligations hereunder may not be assigned or delegated by either party, in whole or part, without the prior written\nconsent of the other party. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their\nrespective successors and permitted assigns. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of\ncompetent jurisdiction to be invalid or unenforceable, the remaining portions hereof shall remain in full force and effect and such provision shall\nbe enforced to the maximum extent possible so as to effect the intent of the parties and shall be reformed to the extent necessary to make such\nprovision valid and enforceable. The parties are independent contractors, and neither party shall have any authority of any kind to bind the other\nparty in any respect whatsoever. Each party shall comply with all applicable laws and regulations in connection with any acts or omissions under\nor relating to this Agreement, including, without limitation, all laws and regulations relating to the export of technical data or products. This\nAgreement may be executed (including, without limitation, by facsimile signature or electronic signature) in one or more counterparts, with the\nsame effect as if the parties bad signed the same document. Each counterpart so executed shall be deemed to be an\n4\noriginal, and all such counterparts shall be construed together and shall constitute one Agreement.\n[RECIPIENT]\nPerseon Corporation\nBy: /s/ Scott P. Youngstrom\nBy: /s/ William S. Barth\nName: Scott P. Youngstrom\nName: William S. Barth\nTitle: VP-Finance, Chief Financial Officer\nTitle: CFO\n5 EX-99.(E)(2) 2 a2226442zex-99_e2.htm EX-99.(E)(2)\nExhibit (e)(2)\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality Agreement (“Agreement”) is entered into effective as of March 16, 2015 (the “Effective Date”) by and between\nGalil Medical, Inc., and Perseon Corporation, a Delaware corporation. The parties wish to protect and preserve the confidential and/or\nproprietary nature of information and materials that may be disclosed or made available to each other in connection with certain discussions,\nnegotiations or dealings between the parties relating to one or more possible business transactions or business relationships (the “Purpose”). In\nconsideration of the foregoing and the rights and obligations set forth herein, both parties hereby agree as follows:\n1. PROPRIETARY INFORMATION.\n“Proprietary Information” means any and all information and material disclosed by the disclosing party or any parent company, subsidiary or\nother affiliate of the disclosing party (“Discloser”) to the receiving party (“Recipient”) (whether in writing, or in oral, graphic, electronic or any\nother form). Proprietary Information, includes, without limitation, any (a) trade secret, know-how, idea, invention, process, technique, algorithm,\nprogram (whether in source code or object code form), hardware, device, design, schematic, drawing, formula, data, plan, strategy and forecast\nof, and (b) technical, engineering, manufacturing, product, marketing, servicing, pricing, financial, personnel and other information and materials\nof, Discloser and its employees, consultants, investors, affiliates, licensors, suppliers, vendors, customers, clients and other persons and entities.\n2. NON-DISCLOSURE AND LIMITED USE.\nRecipient shall hold all Proprietary Information in strict confidence and shall not disclose any Proprietary Information to any third party, other\nthan to its employees, agents, consultants, subsidiaries and other affiliates who need to know such information and who are bound by restrictions\nregarding disclosure and use of such information comparable to and no less restrictive than those set forth herein. Recipient shall not use any\nProprietary Information for the benefit of itself or any third party or for any purpose other than the Purpose. Recipient shall take the same degree\nof care that it uses to protect its own confidential and proprietary information and materials of similar nature and importance (but in no event less\nthan reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication or dissemination of the Proprietary\nInformation. Recipient shall not make any copies of the Proprietary Information except to the extent reasonably necessary to carry out the\nPurpose, or unless otherwise approved in writing in advance by Discloser. Recipient shall not decompile, disassemble or otherwise reverse\nengineer any Proprietary Information or any portion thereof, or determine or attempt to determine any source code, algorithms, methods or\ntechniques embodied in any Proprietary Information or any portion thereof. If the parties mutually agree to enter into or continue a business\nrelationship or other arrangement relating to the Purpose and do not enter into a new confidentiality agreement, the terms and conditions set forth\nherein shall also apply to any information and/or materials related to, or activities undertaken in connection with, carrying out such business\nrelationship or other arrangement, unless otherwise agreed to by the parties in\n \nwriting. Except as required by law or as reasonably required to assert its rights hereunder, neither party shall disclose to any third party, other\nthan to its employees, agents, consultants, subsidiaries and other affiliates who need to know such information and who are bound by restrictions\nregarding disclosure and use of such information comparable to and no less restrictive than those set forth herein, the existence or substance of\nthe discussions between the parties or any terms of this Agreement or any related agreement between the parties (or any matters relating thereto),\nwithout the prior written consent of the other party. For purposes of this Agreement, an “affiliate” includes, without limitation, any entity that on\nor after the date of this Agreement controls, is controlled by or is under common control with a party. The obligations of this Section 2 with\nrespect to any item of Proprietary Information shall survive any termination or expiration of this Agreement for three years.\n3. SCOPE.\nThe obligations of this Agreement, including the restrictions on disclosure and use, shall not apply with respect to any Proprietary Information to\nthe extent such Proprietary Information: (a) is or becomes publicly known through no act or omission of Recipient; (b) was rightfully known by\nRecipient before receipt from Discloser, as evidenced by Recipient’s contemporaneous written records; (c) becomes rightfully known to\nRecipient without confidential or proprietary restriction from a source other than Discloser that does not owe a duty of confidentiality to\nDiscloser with respect to such Proprietary Information; or (d) is independently developed by Recipient without the use of or reference to the\nProprietary Information of Discloser, as evidenced by Recipient’s contemporaneous written records. In addition, Recipient may use or disclose\nProprietary Information to the extent (i) approved by Discloser, or (ii) Recipient is legally compelled to disclose such Proprietary Information,\nprovided, however, that prior to any such compelled disclosure, Recipient shall give Discloser reasonable notice of any such disclosure and shall\ncooperate with Discloser in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure\nand/or use of the Proprietary Information.\n4. OWNERSHIP.\nAll Proprietary Information of Discloser (including, without limitation, all copies, extracts and portions thereof) is and shall remain the sole\nproperty of Discloser. Recipient does not acquire (by license or otherwise, whether express or implied) any intellectual property rights or other\nrights under this Agreement or any disclosure hereunder, except the limited right to use such Proprietary Information in accordance with the\nexpress provisions of this Agreement. All rights relating to the Proprietary Information that are not expressly granted hereunder to Recipient are\nreserved and retained by Discloser.\n5. NO WARRANTY.\nExcept as may be otherwise agreed to in writing, no warranties of any kind, whether express or implied, are given by Discloser with respect to\nany Proprietary Information or any use thereof, and the Proprietary Information is provided on an “AS IS” basis. Discloser hereby expressly\ndisclaims all such warranties, including any implied warranties of merchantability and fitness for\n2\n \na particular purpose and any warranties arising out of course of performance, course of dealing or usage of trade,\n6. TERMINATION.\nEither party may terminate this Agreement at any time upon written notice to the other party, and neither party shall have any obligation to\ndisclose any Proprietary Information or to continue discussions relating to, or to enter into or continue any arrangement or agreement relating to,\nthe Purpose or any other matter, except as agreed in writing by the parties. Any provisions of this Agreement, which are intended by their\nspecific terms or by necessary implication, to survive the expiration or termination of this Agreement shall so survive.\n7. REMEDIES.\nRecipient agrees that, due to the unique nature of the Proprietary Information, the unauthorized disclosure or use of the Proprietary Information\nof Discloser may cause irreparable harm and significant injury to Discloser, the extent of which may be difficult to ascertain and for which there\nmay be no adequate remedy at law. Accordingly, Recipient agrees that Discloser, in addition to any other available remedies, shall have the right\nto seek an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Agreement. Recipient shall notify\nDiscloser in writing immediately upon Recipient’s becoming aware of any such breach or threatened breach.\n8. RETURN OF MATERIALS.\nUpon any termination of discussions or any business relationship between the parties related to the Purpose, or of this Agreement, or at any time\nat Discloser’s request, (a) Recipient shall promptly return to Discloser or destroy all materials (in written, electronic or other form) containing or\nconstituting Proprietary Information of Discloser, including any copies and extracts thereof, and (b) Recipient shall not use such Proprietary\nInformation in any way for any purpose.\n9. ATTORNEY-CLIENT PRIVILEGED INFORMATION\nTo the extent that any Proprietary Information may include material subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that\nthey have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Proprietary Information provided by the Discloser that is\nentitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such\nprotection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this agreement obligates any party to reveal\nmaterial subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\n3\n \n10. REGULATION FD CONFIDENTIALITY AGREEMENT\nThe parties acknowledge that they are aware, and that they will advise their representatives who are informed as to the matters which are the\nsubject of this Agreement, (i) that the United States securities laws prohibit any person who has received from an issuer material, non-public\ninformation concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to\npurchase or sell securities and (ii) that they are familiar with the Securities Exchange Act of 1934 (the “Exchange Act”), and the rules and\nregulations promulgated thereunder, and they agree that they will neither use nor cause any person to use any Proprietary Information in\ncontravention of the Exchange Act or such rules and regulations, including without limitation Rules 10b-5 and 14e-3. This Agreement is a\nconfidentiality agreement for purposes of Regulation FD.\n11. MISCELLANEOUS.\nThis Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior or\ncontemporaneous representations, negotiations, conditions, communications and agreements, whether oral or written, between the parties relating\nto the subject matter hereof and all past courses of dealing or industry custom. No amendment, modification or waiver of any provision of this\nAgreement shall be effective unless in writing and signed by duly authorized signatories of both parties. The waiver by either party of a default\nunder any provision of this Agreement shall not be construed as a waiver of any subsequent default under the same or any other provision of this\nAgreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have\nhereunder operate as a waiver of any right or remedy. Any lawsuit, action or proceeding arising out of or relating to this Agreement shall be\ndecided in accordance with the laws of the State of Utah, without giving effect to principles of conflicts of laws. Any lawsuit, action or\nproceeding arising out of or relating to this Agreement shall be commenced in a federal or state court located in the County of Salt Lake, Utah,\nand each party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such lawsuit, action or proceeding. This\nAgreement and the rights and obligations hereunder may not be assigned or delegated by either party, in whole or part, without the prior written\nconsent of the other party. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their\nrespective successors and permitted assigns. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of\ncompetent jurisdiction to be invalid or unenforceable, the remaining portions hereof shall remain in full force and effect and such provision shall\nbe enforced to the maximum extent possible so as to effect the intent of the parties and shall be reformed to the extent necessary to make such\nprovision valid and enforceable. The parties are independent contractors, and neither party shall have any authority of any kind to bind the other\nparty in any respect whatsoever. Each party shall comply with all applicable laws and regulations in connection with any acts or omissions under\nor relating to this Agreement, including, without limitation, all laws and regulations relating to the export of technical data or products. This\nAgreement may be executed (including, without limitation, by facsimile signature or electronic signature) in one or more counterparts, with the\nsame effect as if the parties bad signed the same document. Each counterpart so executed shall be deemed to be an\n4\n \noriginal, and all such counterparts shall be construed together and shall constitute one Agreement.\n[RECIPIENT] Perseon Corporation\nBy: /s/ Scott P. Youngstrom By: /s/ William S. Barth\nName: Scott P. Youngstrom Name: William S. Barth\nTitle: VP-Finance, Chief Financial Officer Title: CFO\n EX-99.(E)(2) 2 a2226442zex-99_e2.htm EX-99.(E)(2)\nExhibit (e)(2)\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality Agreement ("Agreement") is entered into effective as of March 16, 2015 (the "Effective Date") by and between\nGalil Medical, Inc., and Perseon Corporation, a Delaware corporation. The parties wish to protect and preserve the confidential and/or\nproprietary nature of information and materials that may be disclosed or made available to each other in connection with certain discussions,\nnegotiations or dealings between the parties relating to one or more possible business transactions or business relationships (the "Purpose"). In\nconsideration of the foregoing and the rights and obligations set forth herein, both parties hereby agree as follows:\n1.\nPROPRIETARY INFORMATION.\n"Proprietary Information" means any and all information and material disclosed by the disclosing party or any parent company, subsidiary or\nother affiliate of the disclosing party ("Discloser") to the receiving party ("Recipient") (whether in writing, or in oral, graphic, electronic or\nany\nother form). Proprietary Information, includes, without limitation, any (a) trade secret, know-how, idea, invention, process, technique, algorithm,\nprogram (whether in source code or object code form), hardware, device, design, schematic, drawing, formula, data, plan, strategy and forecast\nof, and (b) technical, engineering, manufacturing, product, marketing, servicing, pricing, financial, personnel and other information and materials\nof, Discloser and its employees, consultants, investors, affiliates, licensors, suppliers, vendors, customers, clients and other persons and entities.\n2.\nNON-DISCLOSURE AND LIMITED USE.\nRecipient shall hold all Proprietary Information in strict confidence and shall not disclose any Proprietary Information to any third party, other\nthan to its employees, agents, consultants, subsidiaries and other affiliates who need to know such information and who are bound by restrictions\nregarding disclosure and use of such information comparable to and no less restrictive than those set forth herein. Recipient shall not use any\nProprietary\nInformation\nfor\nthe\nbenefit\nof\nitself\nor\nany\nthird\nparty\nor\nfor\nany\npurpose\nother\nthan\nthe\nPurpose.\nRecipient\nshall\ntake\nthe\nsame\ndegree\nof care that it uses to protect its own confidential and proprietary information and materials of similar nature and importance (but in no event less\nthan reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication or dissemination of the Proprietary\nInformation.\nRecipient\nshall\nnot\nmake\nany\ncopies\nof\nthe\nProprietary\nInformation\nexcept\nto\nthe\nextent\nreasonably\nnecessary\nto\ncarry\nout\nthe\nPurpose, or unless otherwise approved in writing in advance by Discloser. Recipient shall not decompile, disassemble or otherwise reverse\nengineer any Proprietary Information or any portion thereof, or determine or attempt to determine any source code, algorithms, methods or\ntechniques embodied in any Proprietary Information or any portion thereof. If the parties mutually agree to enter into or continue a business\nrelationship or other arrangement relating to the Purpose and do not enter into a new confidentiality agreement, the terms and conditions set forth\nherein shall also apply to any information and/or materials related to, or activities undertaken in connection with, carrying out such business\nrelationship or other arrangement, unless otherwise agreed to by the parties in\n1\nwriting. Except as required by law or as reasonably required to assert its rights hereunder, neither party shall disclose to any third party, other\nthan to its employees, agents, consultants, subsidiaries and other affiliates who need to know such information and who are bound by restrictions\nregarding disclosure and use of such information comparable to and no less restrictive than those set forth herein, the existence or substance of\nthe discussions between the parties or any terms of this Agreement or any related agreement between the parties (or any matters relating thereto),\nwithout the prior written consent of the other party. For purposes of this Agreement, an "affiliate" includes, without limitation, any entity that on\nor after the date of this Agreement controls, is controlled by or is under common control with a party. The obligations of this Section 2 with\nrespect to any item of Proprietary Information shall survive any termination or expiration of this Agreement for three years.\n3.\nSCOPE.\nThe obligations of this Agreement, including the restrictions on disclosure and use, shall not apply with respect to any Proprietary Information to\nthe extent such Proprietary Information: (a) is or becomes publicly known through no act or omission of Recipient; (b) was rightfully known by\nRecipient before receipt from Discloser, as evidenced by Recipient's contemporaneous written records; (c) becomes rightfully known to\nRecipient without confidential or proprietary restriction from a source other than Discloser that does not owe a duty of confidentiality to\nDiscloser with respect to such Proprietary Information; or (d) is independently developed by Recipient without the use of or reference to\nthe\nProprietary Information of Discloser, as evidenced by Recipient's contemporaneous written records. In addition, Recipient may use or disclose\nProprietary Information to the extent (i) approved by Discloser, or (ii) Recipient is legally compelled to disclose such Proprietary Information,\nprovided, however, that prior to any such compelled disclosure, Recipient shall give Discloser reasonable notice of any such disclosure and shall\ncooperate with Discloser in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure\nand/or use of the Proprietary Information.\n4.\nOWNERSHIP.\nAll Proprietary Information of Discloser (including, without limitation, all copies, extracts and portions thereof) is and shall remain the sole\nproperty of Discloser. Recipient does not acquire (by license or otherwise, whether express or implied) any intellectual property rights or other\nrights under this Agreement or any disclosure hereunder, except the limited right to use such Proprietary Information in accordance with the\nexpress provisions of this Agreement. All rights relating to the Proprietary Information that are not expressly granted hereunder to Recipient are\nreserved and retained by Discloser.\n5.\nNO WARRANTY.\nExcept as may be otherwise agreed to in writing, no warranties of any kind, whether express or implied, are given by Discloser with respect to\nany Proprietary Information or any use thereof, and the Proprietary Information is provided on an "AS IS" basis. Discloser hereby expressly\ndisclaims all such warranties, including any implied warranties of merchantability and fitness for\n2\na particular purpose and any warranties arising out of course of performance, course of dealing or usage of trade,\n6.\nTERMINATION.\nEither party may terminate this Agreement at any time upon written notice to the other party, and neither party shall have any obligation to\ndisclose any Proprietary Information or to continue discussions relating to, or to enter into or continue any arrangement or agreement relating to,\nthe Purpose or any other matter, except as agreed in writing by the parties. Any provisions of this Agreement, which are intended by their\nspecific terms or by necessary implication, to survive the expiration or termination of this Agreement shall so survive.\n7.\nREMEDIES.\nRecipient agrees that, due to the unique nature of the Proprietary Information, the unauthorized disclosure or use of the Proprietary Information\nof Discloser may cause irreparable harm and significant injury to Discloser, the extent of which may be difficult to ascertain and for which there\nmay be no adequate remedy at law. Accordingly, Recipient agrees that Discloser, in addition to any other available remedies, shall have the right\nto seek an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Agreement. Recipient shall notify\nDiscloser in writing immediately upon Recipient's becoming aware of any such breach or threatened breach.\n8.\nRETURN OF MATERIALS.\nUpon any termination of discussions or any business relationship between the parties related to the Purpose, or of this Agreement, or at any time\nat Discloser's request, (a) Recipient shall promptly return to Discloser or destroy all materials (in written, electronic or other form) containing or\nconstituting Proprietary Information of Discloser, including any copies and extracts thereof, and (b) Recipient shall not use such Proprietary\nInformation in any way for any purpose.\n9.\nATTORNEY-CLIENT PRIVILEGED INFORMATION\nTo the extent that any Proprietary Information may include material subject to the attorney-client privilege, work product doctrine or any other\napplicable\nprivilege\nconcerning\npending\nor\nthreatened\nlegal\nproceedings\nor\ngovernmental\ninvestigations,\nthe\nparties\nunderstand\nand\nagree\nthat\nthey have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Proprietary Information provided by the Discloser that is\nentitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such\nprotection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this agreement obligates any party to reveal\nmaterial subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\n3\n10.\nREGULATION FD CONFIDENTIALITY AGREEMENT\nThe parties acknowledge that they are aware, and that they will advise their representatives who are informed as to the matters which are the\nsubject of this Agreement, (i) that the United States securities laws prohibit any person who has received from an issuer material, non-public\ninformation concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely\nto\npurchase or sell securities and (ii) that they are familiar with the Securities Exchange Act of 1934 (the "Exchange Act"), and the rules and\nregulations promulgated thereunder, and they agree that they will neither use nor cause any person to use any Proprietary Information in\ncontravention of the Exchange Act or such rules and regulations, including without limitation Rules 10b-5 and 14e-3. This Agreement is a\nconfidentiality agreement for purposes of Regulation FD.\n11.\nMISCELLANEOUS.\nThis Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior or\ncontemporaneous representations, negotiations, conditions, communications and agreements, whether oral or written, between the parties relating\nto the subject matter hereof and all past courses of dealing or industry custom. No amendment, modification or waiver of any provision of this\nAgreement shall be effective unless in writing and signed by duly authorized signatories of both parties. The waiver by either party of a default\nunder any provision of this Agreement shall not be construed as a waiver of any subsequent default under the same or any other provision of this\nAgreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have\nhereunder operate as a waiver of any right or remedy. Any lawsuit, action or proceeding arising out of or relating to this Agreement shall be\ndecided in accordance with the laws of the State of Utah, without giving effect to principles of conflicts of laws. Any lawsuit, action\nor\nproceeding arising out of or relating to this Agreement shall be commenced in a federal or state court located in the County of Salt Lake, Utah,\nand each party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such lawsuit, action or proceeding. This\nAgreement and the rights and obligations hereunder may not be assigned or delegated by either party, in whole or part, without the prior written\nconsent of the other party. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their\nrespective successors and permitted assigns. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of\ncompetent jurisdiction to be invalid or unenforceable, the remaining portions hereof shall remain in full force and effect and such provision shall\nbe enforced to the maximum extent possible so as to effect the intent of the parties and shall be reformed to the extent necessary to make such\nprovision valid and enforceable. The parties are independent contractors, and neither party shall have any authority of any kind to bind the other\nparty in any respect whatsoever. Each party shall comply with all applicable laws and regulations in connection with any acts or omissions under\nor relating to this Agreement, including, without limitation, all laws and regulations relating to the export of technical data or products. This\nAgreement may be executed (including, without limitation, by facsimile signature or electronic signature) in one or more counterparts, with the\nsame effect as if the parties bad signed the same document. Each counterpart so executed shall be deemed to be an\n4\noriginal, and all such counterparts shall be construed together and shall constitute one Agreement.\n[RECIPIENT]\nPerseon Corporation\nBy: /s/ Scott P. Youngstrom\nBy:\n/s/ William S. Barth\nName: Scott P. Youngstrom\nName: William S. Barth\nTitle: VP-Finance, Chief Financial Officer\nTitle: CFO\n5 EX-99.(E)(2) 2 a2226442zex-99_e2.htm EX-99.(E)(2)\nExhibit (e)(2)\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality Agreement (“Agreement”) is entered into effective as of March 16, 2015 (the “Effective Date”) by and between\nGalil Medical, Inc., and Perseon Corporation, a Delaware corporation. The parties wish to protect and preserve the confidential and/or\nproprietary nature of information and materials that may be disclosed or made available to each other in connection with certain discussions,\nnegotiations or dealings between the parties relating to one or more possible business transactions or business relationships (the “Purpose”). In\nconsideration of the foregoing and the rights and obligations set forth herein, both parties hereby agree as follows:\n1.\nPROPRIETARY INFORMATION.\n“Proprietary Information” means any and all information and material disclosed by the disclosing party or any parent company, subsidiary or\nother affiliate of the disclosing party (“Discloser”) to the receiving party (“Recipient”) (whether in writing, or in oral, graphic, electronic or any\nother form). Proprietary Information, includes, without limitation, any (a) trade secret, know-how, idea, invention, process, technique, algorithm,\nprogram (whether in source code or object code form), hardware, device, design, schematic, drawing, formula, data, plan, strategy and forecast\nof, and (b) technical, engineering, manufacturing, product, marketing, servicing, pricing, financial, personnel and other information and materials\nof, Discloser and its employees, consultants, investors, affiliates, licensors, suppliers, vendors, customers, clients and other persons and entities.\n2.\nNON-DISCLOSURE AND LIMITED USE.\nRecipient shall hold all Proprietary Information in strict confidence and shall not disclose any Proprietary Information to any third party, other\nthan to its employees, agents, consultants, subsidiaries and other affiliates who need to know such information and who are bound by restrictions\nregarding disclosure and use of such information comparable to and no less restrictive than those set forth herein. Recipient shall not use any\nProprietary Information for the benefit of itself or any third party or for any purpose other than the Purpose. Recipient shall take the same degree\nof care that it uses to protect its own confidential and proprietary information and materials of similar nature and importance (but in no event less\nthan reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication or dissemination of the Proprietary\nInformation. Recipient shall not make any copies of the Proprietary Information except to the extent reasonably necessary to carry out the\nPurpose, or unless otherwise approved in writing in advance by Discloser. Recipient shall not decompile, disassemble or otherwise reverse\nengineer any Proprietary Information or any portion thereof, or determine or attempt to determine any source code, algorithms, methods or\ntechniques embodied in any Proprietary Information or any portion thereof. If the parties mutually agree to enter into or continue a business\nrelationship or other arrangement relating to the Purpose and do not enter into a new confidentiality agreement, the terms and conditions set forth\nherein shall also apply to any information and/or materials related to, or activities undertaken in connection with, carrying out such business\nrelationship or other arrangement, unless otherwise agreed to by the parties in\n1\nwriting. Except as required by law or as reasonably required to assert its rights hereunder, neither party shall disclose to any third party, other\nthan to its employees, agents, consultants, subsidiaries and other affiliates who need to know such information and who are bound by restrictions\nregarding disclosure and use of such information comparable to and no less restrictive than those set forth herein, the existence or substance of\nthe discussions between the parties or any terms of this Agreement or any related agreement between the parties (or any matters relating thereto),\nwithout the prior written consent of the other party. For purposes of this Agreement, an “affiliate” includes, without limitation, any entity that on\nor after the date of this Agreement controls, is controlled by or is under common control with a party. The obligations of this Section 2 with\nrespect to any item of Proprietary Information shall survive any termination or expiration of this Agreement for three years.\n3.\nSCOPE.\nThe obligations of this Agreement, including the restrictions on disclosure and use, shall not apply with respect to any Proprietary Information to\nthe extent such Proprietary Information: (a) is or becomes publicly known through no act or omission of Recipient; (b) was rightfully known by\nRecipient before receipt from Discloser, as evidenced by Recipient’s contemporaneous written records; (c) becomes rightfully known to\nRecipient without confidential or proprietary restriction from a source other than Discloser that does not owe a duty of confidentiality to\nDiscloser with respect to such Proprietary Information; or (d) is independently developed by Recipient without the use of or reference to the\nProprietary Information of Discloser, as evidenced by Recipient’s contemporaneous written records. In addition, Recipient may use or disclose\nProprietary Information to the extent (i) approved by Discloser, or (ii) Recipient is legally compelled to disclose such Proprietary Information,\nprovided, however, that prior to any such compelled disclosure, Recipient shall give Discloser reasonable notice of any such disclosure and shall\ncooperate with Discloser in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure\nand/or use of the Proprietary Information.\n4.\nOWNERSHIP.\nAll Proprietary Information of Discloser (including, without limitation, all copies, extracts and portions thereof) is and shall remain the sole\nproperty of Discloser. Recipient does not acquire (by license or otherwise, whether express or implied) any intellectual property rights or other\nrights under this Agreement or any disclosure hereunder, except the limited right to use such Proprietary Information in accordance with the\nexpress provisions of this Agreement. All rights relating to the Proprietary Information that are not expressly granted hereunder to Recipient are\nreserved and retained by Discloser.\n5.\nNO WARRANTY.\nExcept as may be otherwise agreed to in writing, no warranties of any kind, whether express or implied, are given by Discloser with respect to\nany Proprietary Information or any use thereof, and the Proprietary Information is provided on an “AS IS” basis. Discloser hereby expressly\ndisclaims all such warranties, including any implied warranties of merchantability and fitness for\n2\na particular purpose and any warranties arising out of course of performance, course of dealing or usage of trade,\n6.\nTERMINATION.\nEither party may terminate this Agreement at any time upon written notice to the other party, and neither party shall have any obligation to\ndisclose any Proprietary Information or to continue discussions relating to, or to enter into or continue any arrangement or agreement relating to,\nthe Purpose or any other matter, except as agreed in writing by the parties. Any provisions of this Agreement, which are intended by their\nspecific terms or by necessary implication, to survive the expiration or termination of this Agreement shall so survive.\n7.\nREMEDIES.\nRecipient agrees that, due to the unique nature of the Proprietary Information, the unauthorized disclosure or use of the Proprietary Information\nof Discloser may cause irreparable harm and significant injury to Discloser, the extent of which may be difficult to ascertain and for which there\nmay be no adequate remedy at law. Accordingly, Recipient agrees that Discloser, in addition to any other available remedies, shall have the right\nto seek an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Agreement. Recipient shall notify\nDiscloser in writing immediately upon Recipient’s becoming aware of any such breach or threatened breach.\n8.\nRETURN OF MATERIALS.\nUpon any termination of discussions or any business relationship between the parties related to the Purpose, or of this Agreement, or at any time\nat Discloser ’s request, (a) Recipient shall promptly return to Discloser or destroy all materials (in written, electronic or other form) containing or\nconstituting Proprietary Information of Discloser, including any copies and extracts thereof, and (b) Recipient shall not use such Proprietary\nInformation in any way for any purpose.\n9.\nATTORNEY-CLIENT PRIVILEGED INFORMATION\nTo the extent that any Proprietary Information may include material subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that\nthey have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Proprietary Information provided by the Discloser that is\nentitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such\nprotection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this agreement obligates any party to reveal\nmaterial subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\n3\n10.\nREGULATION FD CONFIDENTIALITY AGREEMENT\nThe parties acknowledge that they are aware, and that they will advise their representatives who are informed as to the matters which are the\nsubject of this Agreement, (i) that the United States securities laws prohibit any person who has received from an issuer material, non-public\ninformation concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to\npurchase or sell securities and (ii) that they are familiar with the Securities Exchange Act of 1934 (the “Exchange Act”), and the rules and\nregulations promulgated thereunder, and they agree that they will neither use nor cause any person to use any Proprietary Information in\ncontravention of the Exchange Act or such rules and regulations, including without limitation Rules 10b-5 and 14e-3 . This Agreement is a\nconfidentiality agreement for purposes of Regulation FD.\n11.\nMISCELLANEOUS.\nThis Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior or\ncontemporaneous representations, negotiations, conditions, communications and agreements, whether oral or written, between the parties relating\nto the subject matter hereof and all past courses of dealing or industry custom. No amendment, modification or waiver of any provision of this\nAgreement shall be effective unless in writing and signed by duly authorized signatories of both parties. The waiver by either party of a default\nunder any provision of this Agreement shall not be construed as a waiver of any subsequent default under the same or any other provision of this\nAgreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have\nhereunder operate as a waiver of any right or remedy. Any lawsuit, action or proceeding arising out of or relating to this Agreement shall be\ndecided in accordance with the laws of the State of Utah, without giving effect to principles of conflicts of laws. Any lawsuit, action or\nproceeding arising out of or relating to this Agreement shall be commenced in a federal or state court located in the County of Salt Lake, Utah,\nand each party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such lawsuit, action or proceeding. This\nAgreement and the rights and obligations hereunder may not be assigned or delegated by either party, in whole or part, without the prior written\nconsent of the other party. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their\nrespective successors and permitted assigns. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of\ncompetent jurisdiction to be invalid or unenforceable, the remaining portions hereof shall remain in full force and effect and such provision shall\nbe enforced to the maximum extent possible so as to effect the intent of the parties and shall be reformed to the extent necessary to make such\nprovision valid and enforceable. The parties are independent contractors, and neither party shall have any authority of any kind to bind the other\nparty in any respect whatsoever. Each party shall comply with all applicable laws and regulations in connection with any acts or omissions under\nor relating to this Agreement, including, without limitation, all laws and regulations relating to the export of technical data or products. This\nAgreement may be executed (including, without limitation, by facsimile signature or electronic signature) in one or more counterparts, with the\nsame effect as if the parties bad signed the same document. Each counterpart so executed shall be deemed to be an\n4\noriginal, and all such counterparts shall be construed together and shall constitute one Agreement.\n[RECIPIENT]\nPerseon Corporation\nBy: /s/ Scott P. Youngstrom\nBy: /s/ William S. Barth\nName: Scott P. Youngstrom\nName: William S. Barth\nTitle: VP-Finance, Chief Financial Officer\nTitle: CFO\n5 d2ab0e93655331571e34090f0a6abbdd.pdf effective_date jurisdiction party term EX-99.(E)(10) 2 d432563dex99e10.htm CONFIDENTIALITY AGREEMENT\nExhibit 99(e) (10)\nCONFIDENTIAL\nWilliams Controls, Inc.\n14100 SW 72 Avenue\nPortland, Oregon 97224\nJuly 5, 2012\nMr. Brian Freeman\nCurtiss-Wright Controls, Inc.\n15800 John J. Delaney Dr., Suite 200\nCharlotte, NC 28277\nDear Mr. Watts:\nIn connection with the consideration of a possible negotiated transaction (the “Transaction”) involving Curtiss-Wright Controls, Inc. or its\naffiliates (collectively, “you”) and Williams Controls, Inc., a Delaware corporation (the “Company”), you have requested information regarding the\nCompany. As a condition to any information regarding the Company being furnished to you, you agree to treat any Evaluation Material (as defined\nbelow), and to take or abstain from taking certain other actions, in accordance with the provisions of this letter agreement.\n1. Definitions.\n1.1 Evaluation Material. The term “Evaluation Material” means all information, data, reports, interpretations, forecasts, business plans and\nrecords, financial or otherwise, and whether written, oral, electronic, visual or otherwise (whatever the form or transmission or storage medium),\nconcerning or related to the Company, any of its affiliates, subsidiaries or joint ventures, or any of the businesses, properties, products, intellectual\nproperty, product designs and plans, technical know-how, marketing information, services, costs and pricing information, methods of operation,\nemployees, financial condition, operations, assets, liabilities, results of operations and/or prospects of any of the foregoing (whether prepared by the\nCompany, any of its Representatives (as defined below) or otherwise) that previously has been or may be furnished to you or any of your\nRepresentatives by or on behalf of the Company or any of its Representatives (collectively, “Information”), as well as all notes, analyses,\ncompilations, summaries, extracts, studies, interpretations or other materials prepared by you or any of your Representatives that contain, reflect or\nare based upon, in whole or in part, any such Information, and in each case regardless of whether or not specifically marked as confidential. The\nterm “Evaluation Material” does not include Information that (i) is or becomes generally available to the public (other than as a result of a disclosure\nby you or any of your Representatives in violation of this letter agreement or any other obligation of confidentiality), or (ii) was within your\npossession prior to it being furnished to you by or on behalf of the Company or any of its Representatives (as can be demonstrated by you with dated\nmaterials) or thereafter becomes available to you, in either case without being subject to any contractual, legal, fiduciary or other obligation of\nconfidentiality to the Company or any other person with respect to such Information, or (iii) developed by you independently of the Company as\nsupported by your\nnd\nwritten records. The term “Evaluation Material” shall include, without limitation, the existence of a possible Transaction, your or the Company’s\ninterest in a possible Transaction, the fact that Evaluation Material has been made available to you or any of your Representatives, the fact that\ndiscussions or negotiations have taken place, are taking place or may take place concerning a possible Transaction or any similar transaction or any\nof the terms, conditions or other facts with respect thereto (including, without limitation, the status thereof and any drafts of any term sheets, letters\nof intent or agreements related to the Transaction), and the existence and terms of this letter agreement. You acknowledge and agree that the\nEvaluation Material may include Information made available to the Company or any of its Representatives pursuant to confidentiality agreements or\nother obligations of confidentiality between the Company and/or one or more of its Representatives and third parties.\n1.2 Other Definitions. As used in this letter agreement, (i) the term “Representatives” means, each party’s respective affiliates and joint\nventures and any partners, members, managers, directors, officers, employees, agents, representatives, advisors (including, without limitation,\nfinancial advisors, bankers, consultants, counsel and accountants) thereof, and, subject to the next sentence, financing sources, (ii) the term “person”\nshall be broadly interpreted to include the media and any individual, corporation, partnership, limited liability company, group, governmental\nauthority or other entity, and (iii) the term “affiliate” shall have the meaning ascribed to such term in Rule 12b-2 promulgated under the Securities\nExchange Act of 1934, as amended (the “Exchange Act”). Your or your Representatives’ actual or prospective financing sources for the Transaction\nshall not be deemed “Representatives” unless and until, prior to contacting such financing sources (including for purposes of checking conflicts), the\nCompany has consented in writing to such persons being contacted by you or your Representatives for such purposes.\n2. Evaluation Material.\n2.1 Nondisclosure of Evaluation Material. You hereby agree that you shall, and you shall cause your Representatives to: (i) use the Evaluation\nMaterial solely for the purpose of evaluating your possible participation in the Transaction, (ii) keep the Evaluation Material strictly confidential in\naccordance with the terms of this letter agreement, and (iii) without the prior written consent of the Company, not disclose any of the Evaluation\nMaterial to any person; provided, however, that you may disclose any of the Evaluation Material to your Representatives who need to know such\nInformation for the sole purpose set forth in clause (i) above and who agree to be bound by the terms hereof to the same extent as if they were parties\nhereto. You hereby agree to notify the Company immediately upon discovery of any unauthorized use or disclosure of Evaluation Material or any\nother breach of this letter agreement by you or any of your Representatives, and will cooperate with the Company to assist the Company to regain\npossession of the Evaluation Material and prevent its further unauthorized use or disclosure.\n2.2 Compulsory Disclosure. In the event that you or any of your Representatives receives a request (by deposition, interrogatory, request for\ndocuments, subpoena, civil investigative demand or similar process) to disclose, or is otherwise required by law or any rule of any securities\nexchange to which you or any of your Representatives is subject (“Law”), including, for purposes of accountants, applicable professional standards\nof the American Institute of Certified Public Accountants, Public Company Accounting Oversight Board or state\n2\nboards of accountancy or obligations thereunder, to disclose, any of the Evaluation Material, you shall (x) provide the Company with prompt written\nnotice of such request or requirement, along with, to the extent applicable, a copy of the request and the proposed disclosure, the circumstances\nsurrounding such request or requirement, the reason that such disclosure is required and the time and place such disclosure is expected to be made, in\neach case with sufficient specificity so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with the\nprovisions of this letter agreement, and (y) if requested by the Company, assist the Company in seeking a protective order or other appropriate\nremedy in response to such request or requirement. Without limiting the generality of the foregoing, you shall not, and shall cause your\nRepresentatives not to, oppose any action by the Company to obtain such a protective order or other remedy. Notwithstanding Paragraph 2.1 hereof,\nif, in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you are, or any of your Representatives is,\nnonetheless, on the advice of your counsel, required by Law to disclose any Evaluation Material, you or such Representative may disclose to the\napplicable tribunal or other person only that portion of the Evaluation Material which such counsel advises you is required by Law to be disclosed,\nprovided that you, and, if appropriate, such Representative, exercise your reasonable best efforts to continue to preserve, and have such tribunal or\nother person preserve, the confidentiality of such Evaluation Material. Notwithstanding any disclosure of Evaluation Material pursuant to this\nParagraph 2.2, you and your Representatives will continue to be bound by your and their obligations of confidentiality (including, without limitation,\nwith respect to any Evaluation Material disclosed pursuant to this Paragraph 2.2) and other obligations hereunder.\n2.3 Privileges. Neither the Company nor the board of directors of the Company (the “Company Board”) intend to waive, or to cause any of\ntheir Representatives to waive, the attorney-client, attorney work product or other applicable privilege of the Company, the Company Board or any\nof the Company’s subsidiaries, affiliates or joint ventures (any of the foregoing, a “Privilege”) by providing any Evaluation Material subject to a\nPrivilege, and any production by the Company, the Company Board or any of their Representatives of such Information shall be inadvertent.\nAccordingly, you agree that a production to you or any of your Representatives by the Company, the Company Board or any of their Representatives\nof Evaluation Materials protected by a Privilege shall not constitute a waiver of any such Privilege by any person, and you agree that, upon request\nby the Company, the Company Board or any of their Representatives, you will, and you will cause your Representatives to, immediately return\nand/or destroy such inadvertently produced Evaluation Materials.\n2.4 Information Request Procedures; No Contact. You agree that, without the prior written consent of the Company Board, all communications\nfrom you or your Representatives regarding the proposed Transaction, including, without limitation, inquiries, requests for additional information,\nrequests for access to personnel or other business contacts, requests for facility tours or discussions or questions regarding procedures, will be\nsubmitted only to the persons listed in Annex A hereto or to such other person or persons as specifically designated in writing by the Company for\nsuch purposes, except that you or your counsel may direct questions regarding this letter agreement to Davis Wright Tremaine LLP. You agree that\nyou will not, and you will cause your Representatives not to, initiate or maintain contact with (i) subject to the preceding sentence, the Company’s\nRepresentatives, regarding any matters related to the possible Transaction, employment arrangements or understandings, any rollover of equity, the\n3\nprocess or discussions of the Company Board or any related matters, or (ii) any customer, supplier, licensor, licensee or other business partner of the\nCompany or any of its subsidiaries or joint ventures with respect to any matters related to the Company or any of its subsidiaries or joint ventures or\nany of the foregoing persons’ businesses or assets, in either case except with the prior written consent of, and supervision by, the Company Board or\na designated Representative of the Company Board.\n2.5 Return and Destruction of Evaluation Material. If you decide that you do not wish to participate in the Transaction, you will promptly\ninform the Company of that decision. In that case, or at any time upon the request of the Company for any reason, you will promptly (i) deliver to\nthe Company all Evaluation Material furnished by or on behalf of the Company or any of its Representatives and (ii) deliver to the Company or\ndestroy all other Evaluation Material, in each case without keeping any copies, in whole or part thereof in any medium whatsoever; provided,\nhowever, that you and your Representatives shall be entitled to retain the minimum number of copies of the Evaluation Material to the extent\nnecessary to comply with applicable Law, which shall be used solely for such purposes. In the event of such a decision or request, you shall cause\none of your authorized officers to deliver to the Company a certificate stating that you have complied with all of the requirements of this Paragraph\n2.5. Notwithstanding the return or the destruction of the Evaluation Material or the termination of discussions regarding the Transaction, you and\nyour Representatives will continue to be bound by your and their obligations of confidentiality (including, without limitation, with respect to any\nEvaluation Material destroyed or returned pursuant to this Paragraph 2.5 or any Evaluation Material retained pursuant to the proviso to the first\nsentence of this Paragraph 2.5) and other obligations hereunder.\n2.6 Accuracy of Evaluation Material. You understand and agree that none of the Company, the Company Board or any of their Representatives\nis making or shall be deemed to make or have made any representation or warranty, express or implied, as to the accuracy or completeness of the\nEvaluation Material. You agree that none of the Company, the Company Board or any of their Representatives shall have any liability to you or any\nof your Representatives relating to or resulting from the use of the Evaluation Material, including, without limitation, for any conclusions that you,\nany of your Representatives or any other person derive from the Evaluation Material. Only those representations or warranties that are made in a\nfinal definitive written agreement (if any) providing for the Transaction (which, for avoidance of doubt, shall not include a term sheet, letter of intent\nor other similar instrument) (a “Definitive Transaction Agreement”), when, as and if executed and delivered, and subject to such limitations and\nrestrictions as may be specified therein, will have any legal effect.\n2.7 Ownership of Evaluation Material. Nothing herein, nor any disclosure contemplated hereby, shall be deemed to transfer to you or any other\nperson any interest in, or confer in you or any other person any right (including, without limitation, intellectual property right) over, the Evaluation\nMaterial whatsoever beyond those interests and rights expressly provided for in this letter agreement.\n2.8 Term. The obligations of each party hereto set forth in this Paragraph 2 shall terminate and be of no further force or effect on the date that\nis three (3) years from the date hereof.\n4\n3. Non-Solicitation; Non-Hire.\nIn consideration of the Evaluation Material being furnished to you, for a period of two (2) years from the date hereof, you will cause your\nRepresentatives who are aware of this letter agreement (other than third party advisors taking action on behalf of an unrelated person without breach\nof any of the other terms of this letter agreement) not to, directly or indirectly, without obtaining the prior written consent of the Company, solicit for\nemployment any current or former officers, employees or independent contractors of the Company or any of its affiliates or joint ventures (whether\nor not such person would commit any breach of such person’s contract of service in leaving such employment or service); provided, however, that\nthe restriction on solicitation above shall not restrict your ability to conduct generalized searches for officers or employees by use of advertisements\nin periodicals of general circulation.\n4. Standstill; Securities Laws.\n4.1 Standstill. You hereby represent and warrant that you and your affiliates do not beneficially own any shares of the common stock of the\nCompany. In consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of two (2) years from the date\nhereof, unless invited in advance by the Company Board to do so (which invitation will be expressly set forth in a written instrument from, and duly\nauthorized by, the Company Board), you will not, and you will cause your Representatives (other than third party advisors taking action on behalf of\nan unrelated person without breach of any of the other terms of this letter agreement) not to, directly or indirectly, acting alone or as part of a group:\n(i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, (a) any securities (whether equity, debt or otherwise)\nof the Company or any of its subsidiaries (or beneficial ownership thereof, as such term is used pursuant to Rule 13d-3 under the Exchange Act),\n(b) any right to vote or to direct the voting of any voting or equity securities of the Company or any of its subsidiaries, or (c) any direct or indirect\nrights to acquire any securities of the Company or any of its subsidiaries or any derivative securities with economic equivalents of ownership of any\nof such securities; (ii) enter into or agree, offer, propose or seek to enter into, or otherwise be involved in or part of, directly or indirectly, any\nacquisition transaction or other business combination relating to all or part of the Company or any of its subsidiaries (whether by way of merger,\nconsolidation, purchase, exchange, recapitalization, restructuring or otherwise) or any acquisition transaction for all or part of the assets of the\nCompany or any of its businesses or subsidiaries; (iii) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as\nsuch terms are used in the rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person or entity with respect\nto the voting of, any voting securities of the Company; (iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3)\nof the Exchange Act) with respect to any securities of the Company or any of its subsidiaries; (v) seek or propose, alone or in concert with others, to\ninfluence or control the management or policies of the Company or any of its subsidiaries or to become, designate, replace or remove a member of\nthe board of directors of the Company or any of its subsidiaries; (vi) directly or indirectly enter into any discussions, negotiations, agreements,\narrangements or understandings with any other person with respect to any of the foregoing activities or propose any of such activities to any other\nperson; (vii) advise, assist, encourage, or act as a financing source for or otherwise invest in any other person in connection any of the foregoing\nactivities; (viii) disclose (other than, to the extent otherwise permitted hereby, to the\n5\nCompany or its Representatives) any intention, plan or arrangement inconsistent with any of the foregoing; (ix) request that the Company, the\nCompany Board or any of their Representatives, directly or indirectly, (A) amend or waive any provision of this Paragraph 4.1 (including this clause\n(ix)) or (B) otherwise consent to any action inconsistent with any provision of this Paragraph 4.1 (including this clause (ix)); (x) take any action that\nmight require the Company or any of its Representatives to make a public announcement regarding any of the activities referred to in clauses (i)-\n(viii) of this Paragraph 4.1 (other than disclosures otherwise expressly permitted by this letter agreement); or (xi) agree to take any of the foregoing\nactions.\n4.2 Prohibition on Voting Restrictions. For a period of two (2) years from the date hereof, unless consented to in advance by the Company\nBoard to do so (which invitation will be expressly set forth in a written instrument from, and duly authorized by, the Company Board), you shall not,\nand you shall cause your Representatives (other than third party advisors not taking action on your behalf or at your direction) not to, enter into any\nexclusivity, lock-up or other agreement, arrangement or understanding, whether written or oral, with any current or future shareholder of the\nCompany or other person that has the right to vote or direct the voting of voting securities of the Company that is intended or could reasonably be\nexpected to limit, restrict, restrain or otherwise impair in any manner, directly or indirectly, the ability of such person to (i) vote any voting securities\nof the Company beneficially owned by such person (or with respect to which such person otherwise has the right to vote or to the direct the voting of\nsuch voting securities) in favor of, or (ii) tender any such voting or equity securities of the Company into any offer made in connection with, any\ntransaction involving the Company.\n4.3 Securities Laws. You understand and agree that you are aware, and that you will advise your Representatives, that the U.S . federal and state\nsecurities laws prohibit, and certain foreign laws may prohibit, any person who has material, non-public information about a company from\npurchasing or selling securities of such company or from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that the person is likely to purchase or sell such securities. You will, and will cause your Representatives to, comply with\nU.S . federal and state securities laws and foreign laws in connection with the receipt of Evaluation Material contemplated hereby.\n5. Certain Additional Restrictions\n5.1 No Partnering. Neither you nor your affiliates nor any of your Representatives have or will, without the prior written consent of the\nCompany Board, enter into, directly or indirectly, any discussions, negotiations, agreements, arrangements or understandings with any person (other\nthan your Representatives), with respect to a possible Transaction or a transaction involving any assets of the Company or that could otherwise affect\nsuch person’s decisions or actions with respect to a possible Transaction.\n5.2 Prohibition on Exclusive Arrangements. You have not and will not, directly or indirectly, enter into any agreement, arrangement or\nunderstanding, whether written or oral, with any potential financing source or sources which may reasonably be expected to limit, restrict, restrain,\notherwise impair in any manner, directly or indirectly, the ability of such financing source or sources to provide financing or other assistance to any\nother party in any other transaction involving the Company.\n6\n6. Miscellaneous.\n6.1 Breach. You shall be responsible for ensuring that your Representatives adhere to the terms of this letter agreement as if such persons were\noriginal parties hereto, you shall be responsible for any breach of this letter agreement by you or any of your Representatives, and you agree, at your\nsole expense, to take all reasonable measures to avoid any prohibited or unauthorized disclosure or use of the Evaluation Material or other breach of\nthis letter agreement by any of your Representatives. The foregoing obligation shall not limit the remedies available to the Company for any breach\nof this letter agreement by any of your Representatives.\n6.2 Process. You understand and agree that: (i) unless and until a Definitive Transaction Agreement has been executed and delivered by the\nCompany and you, none of the Company, the Company Board nor any of their Representatives will be under any legal obligation of any kind\nwhatsoever with respect to the Transaction, and except as arising pursuant to such a Definitive Transaction Agreement, neither you nor any of your\nRepresentatives shall have, and you hereby waive for yourself and on their behalf, any claims whatsoever against the Company, the Company Board\nor any of their Representatives arising out of or relating to the Transaction; (ii) no Information provided, including any statements made, to you or\nany of your Representatives prior to, in the course of or for the purpose of negotiations relating to a Transaction, will constitute an offer by the\nCompany or on the Company’s behalf, nor will you or any of your Representatives claim that any such Information forms the basis of any contract\nor agreement (including, without limitation, an agreement in principle), to engage in any transaction with you, and you hereby waive any claims to\nthe contrary; (iii) the Company Board and the Company reserve the right, in their sole discretion, to both reject any and all proposals made by you or\nany of your Representatives with regard to a Transaction and/or to terminate discussions and negotiations with you or any of your Representatives at\nany time for any reason or no reason; (iv) the Company, the Company Board or any of their Representatives may enter into negotiations and\ndiscussions with any other parties for a possible transaction in lieu of the Transaction with you and enter into a definitive agreement with respect\nthereto without prior notice to you or any of your Representatives; (v) the Company Board and the Company may change in any way in their sole\ndiscretion the Company’s processes or procedures for considering the Transaction or any transaction in lieu of the Transaction without prior notice to\nyou or any of your Representatives; (vi) the Company Board and the Company retain the right to determine, in their sole discretion, what\nInformation it will make available to you or any of your Representatives; and (vii) any passwords provided to you in connection with an electronic\ndata room (“EDR”), if any, will be used only by the individuals to whom such passwords are issued, and that should you desire additional\nindividuals to access the EDR, you will request additional passwords for such individuals.\n6.3 Modification and Waiver. This letter agreement may be modified or waived only by a separate writing by the Company and you expressly\nso modifying or waiving this letter agreement. It is understood and agreed that no failure or delay by the Company, or the Company Board on behalf\nof the Company, in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\n7\n6.4 Severability. The illegality, invalidity or unenforceability of any provision of this letter agreement in any jurisdiction shall not affect the\nlegality, validity or enforceability of any other provision of this letter agreement or the legality, validity or enforceability of such provision of this\nletter agreement in any other jurisdiction. In the event that any of the provisions of this letter agreement shall be held by a court or other tribunal of\ncompetent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be deemed limited or eliminated only to the minimum extent\nnecessary so that this letter agreement shall otherwise remain in full force and effect.\n6.5 Entire Agreement. This letter agreement contains the entire agreement between the Company and you concerning the subject matter hereof\nand supersedes all previous agreements, written or oral, to the extent relating to the exchange of Evaluation Material contemplated hereby or any\nconsideration, discussions or negotiations of a Transaction.\n6.6 Remedies. It is further understood and agreed that money damages may not be a sufficient remedy for any breach of this letter agreement\nby you or any of your Representatives and, in addition to all other remedies that the Company or any of its Representatives may have at law or in\nequity and without limiting any of the foregoing, the Company and any of its Representatives shall be entitled to equitable relief, including, without\nlimitation, injunction and specific performance, as a remedy for any such breach and you hereby waive any requirement for the securing or posting\nof any bond in connection with such remedy. Notwithstanding anything to the contrary contained in this letter agreement and without limiting any of\nthe Company’s other rights and remedies available in connection with this letter agreement, if a court of competent jurisdiction determines that you\nor any of your Representatives has breached any provision of this letter agreement, you shall be liable for and pay to the Company on demand any\ndamages awarded, and the reasonable legal fees and expenses incurred by the Company in connection with such breach, including any litigation\nrelated thereto and any appeal therefrom.\n6.7 Governing Law; Venue. This letter agreement shall be governed by and construed in accordance with the laws of the State of Delaware\nwithout giving effect to the conflicts of law provisions thereof. The parties hereto hereby irrevocably and unconditionally consent to the sole and\nexclusive jurisdiction of, and waive any objection to the laying of venue in, the U.S. federal and state court sitting in the City of Wilmington\n(collectively, the “Delaware Courts”) for any action, suit or proceeding arising out of or relating to this letter agreement, and agree not to commence\nany action, suit or proceeding related thereto except in a Delaware Court. Each of the parties hereto further agrees that service of any process,\nsummons, notice or document by registered mail to its address set forth on the first page of this letter agreement shall be effective service of process\nfor any action, suit or proceeding brought against it in any Delaware Court.\n6.8 Assignment; Binding Effect. You may not assign your rights or obligations under this letter agreement to any person. The Company may\nassign its rights and obligations, in whole or in part, under this letter agreement to any person. This letter agreement shall be binding upon you and\nyour respective successors and permitted assigns and shall inure to the benefit of, and be enforceable by, the Company and its respective successors\nand assigns.\n6.9 Expenses. All costs and expenses incurred in connection with this letter agreement and the consideration by the parties of the Transaction,\nincluding, without limitation, all fees of law firms, commercial banks, investment banks, accountants, public relations firms, experts and consultants,\nshall be paid by the party incurring such cost or expense.\n8\n6.10 Headings. Headings included in this letter agreement are for the convenience of the parties only and shall be given no substantive or\ninterpretive effect.\n6.11 Counterparts; Signatures. This letter agreement may be executed in one or more counterparts, each of which shall be deemed to be an\noriginal but all of which together shall constitute one and the same instrument. This letter agreement or any counterpart may be executed and\ndelivered by facsimile copies or electronic transmission, each of which shall be deemed to be an original.\n{Remainder of page intentionally left blank.}\n9\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nWILLIAMS CONTROLS, INC.\nBy: /s/ Patrick Cavanagh\nName: Patrick Cavanagh\nTitle: Chief Executive Officer\nAccepted and agreed as of this 5 day of July, 2012:\nCURTISS-WRIGHT CONTROLS, INC.\nBy: /s/ Brian Freeman\nName: Brian Freeman\nTitle: Vice President Technology & Market\nDevelopment\n10\nth\nAnnex A\nCompany Representatives\nHOULIHAN LOKEY – NEW YORK\n245 Park Avenue, 20 Floor\nNew York, NY 10167\nPhone: (212) 497-4100\nName\nOffice Information\nJim Lavelle\nManaging Director\nAssistant:\nTana Dippolito\n(212) 497-7911\nTDippolito@HL.com\nTel:\nFax:\nMobile:\nEmail:\n(212) 497-4107\n(212) 497-7976\n(203) 858-4632\nJLavelle@HL.com\nGene Bazemore\nSenior Vice President\nAssistant:\nTana Dippolito\n(212) 497-7911\nTDippolito@HL.com\nTel:\nFax:\nMobile:\nEmail:\n(212) 497-7842\n(212) 497-7976\n(917) 605-1163\nEBazemore@HL.com\nDisha Mehta\nAssociate\nAssistant:\nTana Dippolito\n(212) 497-7911\nTDippolito@HL.com\nTel:\nFax:\nMobile:\nEmail:\n(212) 497-4249\n(212) 497-7976\n(512) 944-7280\nDMehta@HL.com\nBill Bronander\nFinancial Analyst\nTel:\nFax:\nMobile:\nEmail:\n(212) 497-7879\n(212) 497-7976\n(201) 669-9149\nBBronander@HL.com\n11\nth EX-99.(E)(10) 2 d432563dex99e10.htm CONFIDENTIALITY AGREEMENT\nExhibit 99(e) (10)\nCONFIDENTIAL\nWilliams Controls, Inc.\n14100 SW 72nd Avenue\nPortland, Oregon 97224\nJuly 5, 2012\nMr. Brian Freeman\nCurtiss-Wright Controls, Inc.\n15800 John J. Delaney Dr., Suite 200\nCharlotte, NC 28277\nDear Mr. Watts:\nIn connection with the consideration of a possible negotiated transaction (the “Transaction”) involving Curtiss-Wright Controls, Inc. or its\naffiliates (collectively, “you”) and Williams Controls, Inc., a Delaware corporation (the “Company”), you have requested information regarding the\nCompany. As a condition to any information regarding the Company being furnished to you, you agree to treat any Evaluation Material (as defined\nbelow), and to take or abstain from taking certain other actions, in accordance with the provisions of this letter agreement.\n1. Definitions.\n1.1 Evaluation Material. The term “Evaluation Material” means all information, data, reports, interpretations, forecasts, business plans and\nrecords, financial or otherwise, and whether written, oral, electronic, visual or otherwise (whatever the form or transmission or storage medium),\nconcerning or related to the Company, any of its affiliates, subsidiaries or joint ventures, or any of the businesses, properties, products, intellectual\nproperty, product designs and plans, technical know-how, marketing information, services, costs and pricing information, methods of operation,\nemployees, financial condition, operations, assets, liabilities, results of operations and/or prospects of any of the foregoing (whether prepared by the\nCompany, any of its Representatives (as defined below) or otherwise) that previously has been or may be furnished to you or any of your\nRepresentatives by or on behalf of the Company or any of its Representatives (collectively, “Information”), as well as all notes, analyses,\ncompilations, summaries, extracts, studies, interpretations or other materials prepared by you or any of your Representatives that contain, reflect or\nare based upon, in whole or in part, any such Information, and in each case regardless of whether or not specifically marked as confidential. The\nterm “Evaluation Material” does not include Information that (i) is or becomes generally available to the public (other than as a result of a disclosure\nby you or any of your Representatives in violation of this letter agreement or any other obligation of confidentiality), or (ii) was within your\npossession prior to it being furnished to you by or on behalf of the Company or any of its Representatives (as can be demonstrated by you with dated\nmaterials) or thereafter becomes available to you, in either case without being subject to any contractual, legal, fiduciary or other obligation of\nconfidentiality to the Company or any other person with respect to such Information, or (iii) developed by you independently of the Company as\nsupported by your\nwritten records. The term “Evaluation Material” shall include, without limitation, the existence of a possible Transaction, your or the Company’s\ninterest in a possible Transaction, the fact that Evaluation Material has been made available to you or any of your Representatives, the fact that\ndiscussions or negotiations have taken place, are taking place or may take place concerning a possible Transaction or any similar transaction or any\nof the terms, conditions or other facts with respect thereto (including, without limitation, the status thereof and any drafts of any term sheets, letters\nof intent or agreements related to the Transaction), and the existence and terms of this letter agreement. You acknowledge and agree that the\nEvaluation Material may include Information made available to the Company or any of its Representatives pursuant to confidentiality agreements or\nother obligations of confidentiality between the Company and/or one or more of its Representatives and third parties.\n1.2 Other Definitions. As used in this letter agreement, (i) the term “Representatives” means, each party’s respective affiliates and joint\nventures and any partners, members, managers, directors, officers, employees, agents, representatives, advisors (including, without limitation,\nfinancial advisors, bankers, consultants, counsel and accountants) thereof, and, subject to the next sentence, financing sources, (ii) the term “person”\nshall be broadly interpreted to include the media and any individual, corporation, partnership, limited liability company, group, governmental\nauthority or other entity, and (iii) the term “affiliate” shall have the meaning ascribed to such term in Rule 12b-2 promulgated under the Securities\nExchange Act of 1934, as amended (the “Exchange Act”). Your or your Representatives’ actual or prospective financing sources for the Transaction\nshall not be deemed “Representatives” unless and until, prior to contacting such financing sources (including for purposes of checking conflicts), the\nCompany has consented in writing to such persons being contacted by you or your Representatives for such purposes.\n2. Evaluation Material.\n2.1 Nondisclosure of Evaluation Material. You hereby agree that you shall, and you shall cause your Representatives to: (i) use the Evaluation\nMaterial solely for the purpose of evaluating your possible participation in the Transaction, (ii) keep the Evaluation Material strictly confidential in\naccordance with the terms of this letter agreement, and (iii) without the prior written consent of the Company, not disclose any of the Evaluation\nMaterial to any person; provided, however, that you may disclose any of the Evaluation Material to your Representatives who need to know such\nInformation for the sole purpose set forth in clause (i) above and who agree to be bound by the terms hereof to the same extent as if they were parties\nhereto. You hereby agree to notify the Company immediately upon discovery of any unauthorized use or disclosure of Evaluation Material or any\nother breach of this letter agreement by you or any of your Representatives, and will cooperate with the Company to assist the Company to regain\npossession of the Evaluation Material and prevent its further unauthorized use or disclosure.\n \n2.2 Compulsory Disclosure. In the event that you or any of your Representatives receives a request (by deposition, interrogatory, request for\ndocuments, subpoena, civil investigative demand or similar process) to disclose, or is otherwise required by law or any rule of any securities\nexchange to which you or any of your Representatives is subject (“Law”), including, for purposes of accountants, applicable professional standards\nof the American Institute of Certified Public Accountants, Public Company Accounting Oversight Board or state\n2\nboards of accountancy or obligations thereunder, to disclose, any of the Evaluation Material, you shall (x) provide the Company with prompt written\nnotice of such request or requirement, along with, to the extent applicable, a copy of the request and the proposed disclosure, the circumstances\nsurrounding such request or requirement, the reason that such disclosure is required and the time and place such disclosure is expected to be made, in\neach case with sufficient specificity so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with the\nprovisions of this letter agreement, and (y) if requested by the Company, assist the Company in seeking a protective order or other appropriate\nremedy in response to such request or requirement. Without limiting the generality of the foregoing, you shall not, and shall cause your\nRepresentatives not to, oppose any action by the Company to obtain such a protective order or other remedy. Notwithstanding Paragraph 2.1 hereof,\nif, in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you are, or any of your Representatives is,\nnonetheless, on the advice of your counsel, required by Law to disclose any Evaluation Material, you or such Representative may disclose to the\napplicable tribunal or other person only that portion of the Evaluation Material which such counsel advises you is required by Law to be disclosed,\nprovided that you, and, if appropriate, such Representative, exercise your reasonable best efforts to continue to preserve, and have such tribunal or\nother person preserve, the confidentiality of such Evaluation Material. Notwithstanding any disclosure of Evaluation Material pursuant to this\nParagraph 2.2, you and your Representatives will continue to be bound by your and their obligations of confidentiality (including, without limitation,\nwith respect to any Evaluation Material disclosed pursuant to this Paragraph 2.2) and other obligations hereunder.\n2.3 Privileges. Neither the Company nor the board of directors of the Company (the “Company Board”) intend to waive, or to cause any of\ntheir Representatives to waive, the attorney-client, attorney work product or other applicable privilege of the Company, the Company Board or any\nof the Company’s subsidiaries, affiliates or joint ventures (any of the foregoing, a “Privilege”) by providing any Evaluation Material subject to a\nPrivilege, and any production by the Company, the Company Board or any of their Representatives of such Information shall be inadvertent.\nAccordingly, you agree that a production to you or any of your Representatives by the Company, the Company Board or any of their Representatives\nof Evaluation Materials protected by a Privilege shall not constitute a waiver of any such Privilege by any person, and you agree that, upon request\nby the Company, the Company Board or any of their Representatives, you will, and you will cause your Representatives to, immediately return\nand/or destroy such inadvertently produced Evaluation Materials.\n \n2.4 Information Request Procedures; No Contact. You agree that, without the prior written consent of the Company Board, all communications\nfrom you or your Representatives regarding the proposed Transaction, including, without limitation, inquiries, requests for additional information,\nrequests for access to personnel or other business contacts, requests for facility tours or discussions or questions regarding procedures, will be\nsubmitted only to the persons listed in Annex A hereto or to such other person or persons as specifically designated in writing by the Company for\nsuch purposes, except that you or your counsel may direct questions regarding this letter agreement to Davis Wright Tremaine LLP. You agree that\nyou will not, and you will cause your Representatives not to, initiate or maintain contact with (i) subject to the preceding sentence, the Company’s\nRepresentatives, regarding any matters related to the possible Transaction, employment arrangements or understandings, any rollover of equity, the\n3\nprocess or discussions of the Company Board or any related matters, or (ii) any customer, supplier, licensor, licensee or other business partner of the\nCompany or any of its subsidiaries or joint ventures with respect to any matters related to the Company or any of its subsidiaries or joint ventures or\nany of the foregoing persons’ businesses or assets, in either case except with the prior written consent of, and supervision by, the Company Board or\na designated Representative of the Company Board.\n2.5 Return and Destruction of Evaluation Material. If you decide that you do not wish to participate in the Transaction, you will promptly\ninform the Company of that decision. In that case, or at any time upon the request of the Company for any reason, you will promptly (i) deliver to\nthe Company all Evaluation Material furnished by or on behalf of the Company or any of its Representatives and (ii) deliver to the Company or\ndestroy all other Evaluation Material, in each case without keeping any copies, in whole or part thereof in any medium whatsoever; provided\nhowever, that you and your Representatives shall be entitled to retain the minimum number of copies of the Evaluation Material to the extent\nnecessary to comply with applicable Law, which shall be used solely for such purposes. In the event of such a decision or request, you shall cause\none of your authorized officers to deliver to the Company a certificate stating that you have complied with all of the requirements of this Paragraph\n2.5. Notwithstanding the return or the destruction of the Evaluation Material or the termination of discussions regarding the Transaction, you and\nyour Representatives will continue to be bound by your and their obligations of confidentiality (including, without limitation, with respect to any\nEvaluation Material destroyed or returned pursuant to this Paragraph 2.5 or any Evaluation Material retained pursuant to the proviso to the first\nsentence of this Paragraph 2.5) and other obligations hereunder.\n \n \n2.6 Accuracy of Evaluation Material. You understand and agree that none of the Company, the Company Board or any of their Representatives\nis making or shall be deemed to make or have made any representation or warranty, express or implied, as to the accuracy or completeness of the\nEvaluation Material. You agree that none of the Company, the Company Board or any of their Representatives shall have any liability to you or any\nof your Representatives relating to or resulting from the use of the Evaluation Material, including, without limitation, for any conclusions that you,\nany of your Representatives or any other person derive from the Evaluation Material. Only those representations or warranties that are made in a\nfinal definitive written agreement (if any) providing for the Transaction (which, for avoidance of doubt, shall not include a term sheet, letter of intent\nor other similar instrument) (a “Definitive Transaction Agreement”), when, as and if executed and delivered, and subject to such limitations and\nrestrictions as may be specified therein, will have any legal effect.\n2.7 Ownership of Evaluation Material. Nothing herein, nor any disclosure contemplated hereby, shall be deemed to transfer to you or any other\nperson any interest in, or confer in you or any other person any right (including, without limitation, intellectual property right) over, the Evaluation\nMaterial whatsoever beyond those interests and rights expressly provided for in this letter agreement.\n2.8 Term. The obligations of each party hereto set forth in this Paragraph 2 shall terminate and be of no further force or effect on the date that\nis three (3) years from the date hereof.\n3. Non-Solicitation; Non-Hire.\nIn consideration of the Evaluation Material being furnished to you, for a period of two (2) years from the date hereof, you will cause your\nRepresentatives who are aware of this letter agreement (other than third party advisors taking action on behalf of an unrelated person without breach\nof any of the other terms of this letter agreement) not to, directly or indirectly, without obtaining the prior written consent of the Company, solicit for\nemployment any current or former officers, employees or independent contractors of the Company or any of its affiliates or joint ventures (whether\nor not such person would commit any breach of such person’s contract of service in leaving such employment or service); provided, however, that\nthe restriction on solicitation above shall not restrict your ability to conduct generalized searches for officers or employees by use of advertisements\nin periodicals of general circulation.\n4. Standstill; Securities I.aws.\n4.1 Standstill. You hereby represent and warrant that you and your affiliates do not beneficially own any shares of the common stock of the\nCompany. In consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of two (2) years from the date\nhereof, unless invited in advance by the Company Board to do so (which invitation will be expressly set forth in a written instrument from, and duly\nauthorized by, the Company Board), you will not, and you will cause your Representatives (other than third party advisors taking action on behalf of\nan unrelated person without breach of any of the other terms of this letter agreement) not to, directly or indirectly, acting alone or as part of a group:\n(i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, (a) any securities (whether equity, debt or otherwise)\nof the Company or any of its subsidiaries (or beneficial ownership thereof, as such term is used pursuant to Rule 13d-3 under the Exchange Act),\n(b) any right to vote or to direct the voting of any voting or equity securities of the Company or any of its subsidiaries, or (c) any direct or indirect\nrights to acquire any securities of the Company or any of its subsidiaries or any derivative securities with economic equivalents of ownership of any\nof such securities; (ii) enter into or agree, offer, propose or seek to enter into, or otherwise be involved in or part of, directly or indirectly, any\nacquisition transaction or other business combination relating to all or part of the Company or any of its subsidiaries (whether by way of merger,\nconsolidation, purchase, exchange, recapitalization, restructuring or otherwise) or any acquisition transaction for all or part of the assets of the\nCompany or any of its businesses or subsidiaries; (iii) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as\nsuch terms are used in the rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person or entity with respect\nto the voting of, any voting securities of the Company; (iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3)\nof the Exchange Act) with respect to any securities of the Company or any of its subsidiaries; (v) seek or propose, alone or in concert with others, to\ninfluence or control the management or policies of the Company or any of its subsidiaries or to become, designate, replace or remove a member of\nthe board of directors of the Company or any of its subsidiaries; (vi) directly or indirectly enter into any discussions, negotiations, agreements,\narrangements or understandings with any other person with respect to any of the foregoing activities or propose any of such activities to any other\nperson; (vii) advise, assist, encourage, or act as a financing source for or otherwise invest in any other person in connection any of the foregoing\nactivities; (viii) disclose (other than, to the extent otherwise permitted hereby, to the\n5\nCompany or its Representatives) any intention, plan or arrangement inconsistent with any of the foregoing; (ix) request that the Company, the\nCompany Board or any of their Representatives, directly or indirectly, (A) amend or waive any provision of this Paragraph 4.1 (including this clause\n(ix)) or (B) otherwise consent to any action inconsistent with any provision of this Paragraph 4.1 (including this clause (ix)); (x) take any action that\nmight require the Company or any of its Representatives to make a public announcement regarding any of the activities referred to in clauses (i)-\n(viii) of this Paragraph 4.1 (other than disclosures otherwise expressly permitted by this letter agreement); or (xi) agree to take any of the foregoing\nactions.\n4.2 Prohibition on Voting Restrictions. For a period of two (2) years from the date hereof, unless consented to in advance by the Company\nBoard to do so (which invitation will be expressly set forth in a written instrument from, and duly authorized by, the Company Board), you shall not,\nand you shall cause your Representatives (other than third party advisors not taking action on your behalf or at your direction) not to, enter into any\nexclusivity, lock-up or other agreement, arrangement or understanding, whether written or oral, with any current or future shareholder of the\nCompany or other person that has the right to vote or direct the voting of voting securities of the Company that is intended or could reasonably be\nexpected to limit, restrict, restrain or otherwise impair in any manner, directly or indirectly, the ability of such person to (i) vote any voting securities\nof the Company beneficially owned by such person (or with respect to which such person otherwise has the right to vote or to the direct the voting of\nsuch voting securities) in favor of, or (ii) tender any such voting or equity securities of the Company into any offer made in connection with, any\ntransaction involving the Company.\n4.3 Securities Laws. You understand and agree that you are aware, and that you will advise your Representatives, that the U.S. federal and state\nsecurities laws prohibit, and certain foreign laws may prohibit, any person who has material, non-public information about a company from\npurchasing or selling securities of such company or from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that the person is likely to purchase or sell such securities. You will, and will cause your Representatives to, comply with\nU.S. federal and state securities laws and foreign laws in connection with the receipt of Evaluation Material contemplated hereby.\n5. Certain Additional Restrictions\n5.1 No Partnering. Neither you nor your affiliates nor any of your Representatives have or will, without the prior written consent of the\nCompany Board, enter into, directly or indirectly, any discussions, negotiations, agreements, arrangements or understandings with any person (other\nthan your Representatives), with respect to a possible Transaction or a transaction involving any assets of the Company or that could otherwise affect\nsuch person’s decisions or actions with respect to a possible Transaction.\n5.2 Prohibition on Exclusive Arrangements. You have not and will not, directly or indirectly, enter into any agreement, arrangement or\nunderstanding, whether written or oral, with any potential financing source or sources which may reasonably be expected to limit, restrict, restrain,\notherwise impair in any manner, directly or indirectly, the ability of such financing source or sources to provide financing or other assistance to any\nother party in any other transaction involving the Company.\n6. Miscellaneous.\n6.1 Breach. You shall be responsible for ensuring that your Representatives adhere to the terms of this letter agreement as if such persons were\noriginal parties hereto, you shall be responsible for any breach of this letter agreement by you or any of your Representatives, and you agree, at your\nsole expense, to take all reasonable measures to avoid any prohibited or unauthorized disclosure or use of the Evaluation Material or other breach of\nthis letter agreement by any of your Representatives. The foregoing obligation shall not limit the remedies available to the Company for any breach\nof this letter agreement by any of your Representatives.\n6.2 Process. You understand and agree that: (i) unless and until a Definitive Transaction Agreement has been executed and delivered by the\nCompany and you, none of the Company, the Company Board nor any of their Representatives will be under any legal obligation of any kind\nwhatsoever with respect to the Transaction, and except as arising pursuant to such a Definitive Transaction Agreement, neither you nor any of your\nRepresentatives shall have, and you hereby waive for yourself and on their behalf, any claims whatsoever against the Company, the Company Board\nor any of their Representatives arising out of or relating to the Transaction; (ii) no Information provided, including any statements made, to you or\nany of your Representatives prior to, in the course of or for the purpose of negotiations relating to a Transaction, will constitute an offer by the\nCompany or on the Company’s behalf, nor will you or any of your Representatives claim that any such Information forms the basis of any contract\nor agreement (including, without limitation, an agreement in principle), to engage in any transaction with you, and you hereby waive any claims to\nthe contrary; (iii) the Company Board and the Company reserve the right, in their sole discretion, to both reject any and all proposals made by you or\nany of your Representatives with regard to a Transaction and/or to terminate discussions and negotiations with you or any of your Representatives at\nany time for any reason or no reason; (iv) the Company, the Company Board or any of their Representatives may enter into negotiations and\ndiscussions with any other parties for a possible transaction in lieu of the Transaction with you and enter into a definitive agreement with respect\nthereto without prior notice to you or any of your Representatives; (v) the Company Board and the Company may change in any way in their sole\ndiscretion the Company’s processes or procedures for considering the Transaction or any transaction in lieu of the Transaction without prior notice to\nyou or any of your Representatives; (vi) the Company Board and the Company retain the right to determine, in their sole discretion, what\nInformation it will make available to you or any of your Representatives; and (vii) any passwords provided to you in connection with an electronic\ndata room (“EDR”), if any, will be used only by the individuals to whom such passwords are issued, and that should you desire additional\nindividuals to access the EDR, you will request additional passwords for such individuals.\n6.3 Modification and Waiver. This letter agreement may be modified or waived only by a separate writing by the Company and you expressly\nso modifying or waiving this letter agreement. It is understood and agreed that no failure or delay by the Company, or the Company Board on behalf\nof the Company, in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\n7\n6.4 Severability. The illegality, invalidity or unenforceability of any provision of this letter agreement in any jurisdiction shall not affect the\nlegality, validity or enforceability of any other provision of this letter agreement or the legality, validity or enforceability of such provision of this\nletter agreement in any other jurisdiction. In the event that any of the provisions of this letter agreement shall be held by a court or other tribunal of\ncompetent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be deemed limited or eliminated only to the minimum extent\nnecessary so that this letter agreement shall otherwise remain in full force and effect.\n6.5 Entire Agreement. This letter agreement contains the entire agreement between the Company and you concerning the subject matter hereof\nand supersedes all previous agreements, written or oral, to the extent relating to the exchange of Evaluation Material contemplated hereby or any\nconsideration, discussions or negotiations of a Transaction.\n6.6 Remedies. It is further understood and agreed that money damages may not be a sufficient remedy for any breach of this letter agreement\nby you or any of your Representatives and, in addition to all other remedies that the Company or any of its Representatives may have at law or in\nequity and without limiting any of the foregoing, the Company and any of its Representatives shall be entitled to equitable relief, including, without\nlimitation, injunction and specific performance, as a remedy for any such breach and you hereby waive any requirement for the securing or posting\nof any bond in connection with such remedy. Notwithstanding anything to the contrary contained in this letter agreement and without limiting any of\nthe Company’s other rights and remedies available in connection with this letter agreement, if a court of competent jurisdiction determines that you\nor any of your Representatives has breached any provision of this letter agreement, you shall be liable for and pay to the Company on demand any\ndamages awarded, and the reasonable legal fees and expenses incurred by the Company in connection with such breach, including any litigation\nrelated thereto and any appeal therefrom.\n6.7 Governing Law; Venue. This letter agreement shall be governed by and construed in accordance with the laws of the State of Delaware\nwithout giving effect to the conflicts of law provisions thereof. The parties hereto hereby irrevocably and unconditionally consent to the sole and\nexclusive jurisdiction of, and waive any objection to the laying of venue in, the U.S. federal and state court sitting in the City of Wilmington\n(collectively, the “Delaware Courts”) for any action, suit or proceeding arising out of or relating to this letter agreement, and agree not to commence\nany action, suit or proceeding related thereto except in a Delaware Court. Each of the parties hereto further agrees that service of any process,\nsummons, notice or document by registered mail to its address set forth on the first page of this letter agreement shall be effective service of process\nfor any action, suit or proceeding brought against it in any Delaware Court.\n6.8 Assignment; Binding Effect. You may not assign your rights or obligations under this letter agreement to any person. The Company may\nassign its rights and obligations, in whole or in part, under this letter agreement to any person. This letter agreement shall be binding upon you and\nyour respective successors and permitted assigns and shall inure to the benefit of, and be enforceable by, the Company and its respective successors\nand assigns.\n6.9 Expenses. All costs and expenses incurred in connection with this letter agreement and the consideration by the parties of the Transaction,\nincluding, without limitation, all fees of law firms, commercial banks, investment banks, accountants, public relations firms, experts and consultants,\nshall be paid by the party incurring such cost or expense.\n6.10 Headings. Headings included in this letter agreement are for the convenience of the parties only and shall be given no substantive or\ninterpretive effect.\n6.11 Counterparts; Signatures. This letter agreement may be executed in one or more counterparts, each of which shall be deemed to be an\noriginal but all of which together shall constitute one and the same instrument. This letter agreement or any counterpart may be executed and\ndelivered by facsimile copies or electronic transmission, each of which shall be deemed to be an original.\n{Remainder of page intentionally left blank.}\n9\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon this letter agreement shall become a binding agreement between you and the Company. Accepted and agreed as of this 5 day of July, 2012:\nCURTISS-WRIGHT CONTROLS, INC.\nBy: /s/ Brian Freeman\nName: Brian Freeman\nTitle: Vice President Technology & Market\nDevelopment\n10\nVery truly yours,\nWILLIAMS CONTROLS, INC.\nBy: /s/ Patrick Cavanagh\nName: Patrick Cavanagh\nTitle: Chief Executive Officer\nAnnex A\nCompany Representatives\nHOULIHAN LOKEY — NEW YORK\n245 Park Avenue, 20t Floor\nNew York, NY 10167\nPhone: (212) 497-4100\nName Office Information\nJim Lavelle\nManaging Director\nAssistant: Tel: (212) 497-4107\nTana Dippolito Fax: (212) 497-7976\n(212) 497-7911 Mobile: (203) 858-4632\nTDippolito@HL.com Email: JLavelle@HL.com\nGene Bazemore\nSenior Vice President\nAssistant: Tel: (212) 497-7842\nTana Dippolito Fax: (212) 497-7976\n(212) 497-7911 Mobile: (917) 605-1163\nTDippolito@HL.com Email: EBazemore@HL.com\nDisha Mehta\nAssociate\nAssistant: Tel: (212) 497-4249\nTana Dippolito Fax: (212) 497-7976\n(212) 497-7911 Mobile: (512) 944-7280\nTDippolito@HL.com Email: DMehta@HL.com\nBill Bronander\nFinancial Analyst\nTel: (212) 497-7879\nFax: (212) 497-7976\nMobile: (201) 669-9149\nEmail: BBronander@HL.com\n11 EX-99.(E)(10) 2 d432563dex99e10.htm CONFIDENTIALITY AGREEMENT\nExhibit 99(e) (10)\nCONFIDENTIAL\nWilliams Controls, Inc.\n14100 SW 72nd Avenue\nPortland, Oregon 97224\nJuly 5, 2012\nMr. Brian Freeman\nCurtiss-Wrigh Controls, Inc.\n15800 John J. Delaney Dr., Suite 200\nCharlotte, NC 28277\nDear Mr. Watts:\nIn connection with the consideration of a possible negotiated transaction (the "Transaction") involving Curtiss-Wright Controls, Inc. or its\naffiliates (collectively, "you") and Williams Controls, Inc., a Delaware corporation (the "Company."), you have requested information regarding the\nCompany. As a condition to any information regarding the Company being furnished to you, you agree to treat any Evaluation Material (as defined\nbelow), and to take or abstain from taking certain other actions, in accordance with the provisions of this letter agreement.\n1. Definitions\n1.1 Evaluation Material. The term "Evaluation Material" means all information, data, reports, interpretations, forecasts, business plans and\nrecords, financial or otherwise, and whether written, oral, electronic, visual or otherwise (whatever the form or transmission or storage medium),\nconcerning or related to the Company, any of its affiliates, subsidiaries or joint ventures, or any of the businesses, properties, products, intellectual\nproperty, product designs and plans, technical know-how, marketing information, services, costs and pricing information, methods of operation,\nemployees, financial condition, operations, assets, liabilities, results of operations and/or prospects of any of the foregoing (whether prepared by the\nCompany, any of its Representatives (as defined below) or otherwise) that previously has been or may be furnished to you or any of your\nRepresentatives by or on behalf of the Company or any of its Representatives (collectively, "Information"), as well as all notes, analyses,\ncompilations, summaries, extracts, studies, interpretations or other materials prepared by you or any of your Representatives that contain, reflect\nor\nare based upon, in whole or in part, any such Information, and in each case regardless of whether or not specifically marked as confidential. The\nterm "Evaluation Material" does not include Information that (i) is or becomes generally available to the public (other than as a result of a disclosure\nby you or any of your Representatives in violation of this letter agreement or any other obligation of confidentiality), or (ii) was within your\npossession prior to it being furnished to you by or on behalf of the Company or any of its Representatives (as can be demonstrated by you with dated\nmaterials) or thereafter becomes available to you, in either case without being subject to any contractual, legal, fiduciary or other obligation of\nconfidentiality to the Company or any other person with respect to such Information, or (iii) developed by you independently of the Company as\nsupported by your\nwritten records. The term "Evaluation Material" shall include, without limitation, the existence of a possible Transaction, your or the Company's\ninterest in a possible Transaction, the fact that Evaluation Material has been made available to you or any of your Representatives, the fact that\ndiscussions or negotiations have taken place, are taking place or may take place concerning a possible Transaction or any similar transaction or any\nof the terms, conditions or other facts with respect thereto (including, without limitation, the status thereof and any drafts of any term sheets, letters\nof intent or agreements related to the Transaction), and the existence and terms of this letter agreement. You acknowledge and agree that the\nEvaluation Material may include Information made available to the Company or any of its Representatives pursuant to confidentiality agreements or\nother obligations of confidentiality between the Company and/or one or more of its Representatives and third parties.\n1.2 Other Definitions. As used in this letter agreement, (i) the term "Representatives" means, each party's respective affiliates and joint\nventures and any partners, members, managers, directors, officers, employees, agents, representatives, advisors (including, without limitation,\nfinancial advisors, bankers, consultants, counsel and accountants) thereof, and, subject to the next sentence, financing sources, (ii) the term "person"\nshall be broadly interpreted to include the media and any individual, corporation, partnership, limited liability company, group, governmenta\nauthority or other entity, and (iii) the term "affiliate" shall have the meaning ascribed to such term in Rule 12b-2 promulgated under the Securities\nExchange Act of 1934, as amended (the "Exchange Act"). Your or your Representatives' actual or prospective financing sources for the Transaction\nshall not be deemed "Representatives" unless and until, prior to contacting such financing sources (including for purposes of checking conflicts),\nthe\nCompany has consented in writing to such persons being contacted by you or your Representatives for such purposes.\n2.\nEvaluation Material.\n2.1 Nondisclosure of Evaluation Material. You hereby agree that you shall, and you shall cause your Representatives to: (i) use the Evaluation\nMaterial solely for the purpose of evaluating your possible participation in the Transaction, (ii) keep the Evaluation Material strictly confidential in\naccordance with the terms of this letter agreement, and (iii) without the prior written consent of the Company, not disclose any of the Evaluation\nMaterial to any person; provided, however, that you may disclose any of the Evaluation Material to your Representatives who need to know such\nInformation for the sole purpose set forth in clause (i) above and who agree to be bound by the terms hereof to the same extent as if they were parties\nhereto. You hereby agree to notify the Company immediately upon discovery of any unauthorized use or disclosure of Evaluation Material or any\nother breach of this letter agreement by you or any of your Representatives, and will cooperate with the Company to assist the Company to regain\npossession of the Evaluation Material and prevent its further unauthorized use or disclosure.\n2.2 Compulsory. Disclosure. In the event that you or any of your Representatives receives a request (by deposition, interrogatory, request for\ndocuments, subpoena, civil investigative demand or similar process) to disclose, or is otherwise required by law or any rule of any securities\nexchange to which you or any of your Representatives is subject ("Law"), including, for purposes of accountants, applicable professional standards\nof the American Institute of Certified Public Accountants, Public Company Accounting Oversight Board or state\n2\nboards of accountancy or obligations thereunder, to disclose, any of the Evaluation Material, you shall (x) provide the Company with prompt written\nnotice of such request or requirement, along with, to the extent applicable, a copy of the request and the proposed disclosure, the circumstances\nsurrounding such request or requirement, the reason that such disclosure is required and the time and place such disclosure is expected to be made,\nin\neach case with sufficient specificity so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with the\nprovisions of this letter agreement, and (y) if requested by the Company, assist the Company in seeking a protective order or other appropriate\nremedy in response to such request or requirement. Without limiting the generality of the foregoing, you shall not, and shall cause your\nRepresentatives not to, oppose any action by the Company to obtain such a protective order or other remedy. Notwithstanding Paragraph 2.1 hereof,\nif, in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you are, or any of your Representatives\nis,\nnonetheless, on the advice of your counsel, required by Law to disclose any Evaluation Material, you or such Representative may disclose to the\napplicable tribunal or other person only that portion of the Evaluation Material which such counsel advises you is required by Law to be disclosed,\nprovided that you, and, if appropriate, such Representative, exercise your reasonable best efforts to continue to preserve, and have such tribunal or\nother person preserve, the confidentiality of such Evaluation Material. Notwithstanding any disclosure of Evaluation Material pursuant to this\nParagraph 2.2, you and your Representatives will continue to be bound by your and their obligations of confidentiality (including, without limitation,\nwith respect to any Evaluation Material disclosed pursuant to this Paragraph 2.2) and other obligations hereunder.\n2.3 Privileges. Neither the Company nor the board of directors of the Company (the "Company. Board") intend to waive, or to cause any of\ntheir Representatives to waive, the attorney-client, attorney work product or other applicable privilege of the Company, the Company Board or any\nof\nthe Company's subsidiaries, affiliates or joint ventures (any of the foregoing, a "Privilege") by providing any Evaluation Material subject to a\nPrivilege, and any production by the Company, the Company Board or any of their Representatives of such Information shall be inadvertent.\nAccordingly, you agree that a production to you or any of your Representatives by the Company, the Company Board or any of their Representatives\nof Evaluation Materials protected by a Privilege shall not constitute a waiver of any such Privilege by any person, and you agree that, upon request\nby the Company, the Company Board or any of their Representatives, you will, and you will cause your Representatives to, immediately return\nand/or destroy such inadvertently produced Evaluation Materials.\n2.4 Information Request Procedures; No Contact. You agree that, without the prior written consent of the Company Board, all communications\nfrom you or your Representatives regarding the proposed Transaction, including, without limitation, inquiries, requests for additional information,\nrequests for access to personnel or other business contacts, requests for facility tours or discussions or questions regarding procedures, will\nbe\nsubmitted only to the persons listed in Annex A hereto or to such other person or persons as specifically designated in writing by the Company for\nsuch purposes, except that you or your counsel may direct questions regarding this letter agreement to Davis Wright Tremaine LLP. You agree\nthat\nyou will not, and you will cause your Representatives not to, initiate or maintain contact with (i) subject to the preceding sentence, the Company's\nRepresentatives, regarding any matters related to the possible Transaction, employment arrangements or understandings, any rollover of equity, the\n3\nprocess or discussions of the Company Board or any related matters, or (ii) any customer, supplier, licensor, licensee or other business partner\nof\nthe\nCompany or any of its subsidiaries or joint ventures with respect to any matters related to the Company or any of its subsidiaries or joint ventures or\nany of the foregoing persons' businesses or assets, in either case except with the prior written consent of, and supervision by, the Company Board or\na designated Representative of the Company Board.\n2.5 Return and Destruction of Evaluation Material. If you decide that you do not wish to participate in the Transaction, you will promptly\ninform the Company of that decision. In that case, or at any time upon the request of the Company for any reason, you will promptly (i) deliver to\nthe Company all Evaluation Material furnished by or on behalf of the Company or any of its Representatives and (ii) deliver to the Company or\ndestroy all other Evaluation Material, in each case without keeping any copies, in whole or part thereof in any medium whatsoever; provided,\nhowever, that you and your Representatives shall be entitled to retain the minimum number of copies of the Evaluation Material to the extent\nnecessary to comply with applicable Law, which shall be used solely for such purposes. In the event of such a decision or request, you shall cause\none of your authorized officers to deliver to the Company a certificate stating that you have complied with all of the requirements of this Paragraph\n2.5. Notwithstanding the return or the destruction of the Evaluation Material or the termination of discussions regarding the Transaction, you and\nyour Representatives will continue to be bound by your and their obligations of confidentiality (including, without limitation, with respect to any\nEvaluation Material destroyed or returned pursuant to this Paragraph 2.5 or any Evaluation Material retained pursuant to the proviso to the first\nsentence of this Paragraph 2.5) and other obligations hereunder.\n2.6 Accuracy of Evaluation Material. You understand and agree that none of the Company, the Company Board or any of their Representatives\nis making or shall be deemed to make or have made any representation or warranty, express or implied, as to the accuracy or completeness of the\nEvaluation Material. You agree that none of the Company, the Company Board or any of their Representatives shall have any liability to you or any\nof your Representatives relating to or resulting from the use of the Evaluation Material, including, without limitation, for any conclusions that you,\nany of your Representatives or any other person derive from the Evaluation Material. Only those representations or warranties that are made in a\nfinal definitive written agreement (if any) providing for the Transaction (which, for avoidance of doubt, shall not include a term sheet, letter of intent\nor other similar instrument) (a "Definitive Transaction Agreement"), when, as and if executed and delivered, and subject to such limitations and\nrestrictions as may be specified therein, will have any legal effect.\n2.7 Ownership of Evaluation Material. Nothing herein, nor any disclosure contemplated hereby, shall be deemed to transfer to you or any other\nperson any interest in, or confer in you or any other person any right (including, without limitation, intellectual property right) over, the Evaluation\nMaterial whatsoever beyond those interests and rights expressly provided for in this letter agreement.\n2.8 Term. The obligations of each party hereto set forth in this Paragraph 2 shall terminate and be of no further force or effect on the date that\nis three (3) years from the date hereof.\n4\n3.\nNon-Solicitation; Non-Hire.\nIn consideration of the Evaluation Material being furnished to you, for a period of two (2) years from the date hereof, you will cause your\nRepresentatives who are aware of this letter agreement (other than third party advisors taking action on behalf of an unrelated person without breach\nof any of the other terms of this letter agreement) not to, directly or indirectly, without obtaining the prior written consent of the Company, solicit\nfor\nemployment any current or former officers, employees or independent contractors of the Company or any of its affiliates or joint ventures (whether\nor not such person would commit any breach of such person's contract of service in leaving such employment or service); provided, however, that\nthe restriction on solicitation above shall not restrict your ability to conduct generalized searches for officers or employees by use of advertisements\nin periodicals of general circulation.\n4. Standstill; Securities Laws.\n4.1 Standstill. You hereby represent and warrant that you and your affiliates do not beneficially own any shares of the common stock of the\nCompany. In consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of two (2) years from the date\nhereof, unless invited in advance by the Company Board to do so (which invitation will be expressly set forth in a written instrument from, and duly\nauthorized by, the Company Board), you will not, and you will cause your Representatives (other than third party advisors taking action on behalf\nof\nan unrelated person without breach of any of the other terms of this letter agreement) not to, directly or indirectly, acting alone or as part of a group:\n(i)\nacquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, (a) any securities (whether equity, debt or otherwise)\nof the Company or any of its subsidiaries (or beneficial ownership thereof, as such term is used pursuant to Rule 13d-3 under the Exchange Act),\n(b) any right to vote or to direct the voting of any voting or equity securities of the Company or any of its subsidiaries, or (c) any direct or indirect\nrights to acquire any securities of the Company or any of its subsidiaries or any derivative securities with economic equivalents of ownership of any\nof such securities; (ii) enter into or agree, offer, propose or seek to enter into, or otherwise be involved in or part of, directly or indirectly, any\nacquisition transaction or other business combination relating to all or part of the Company or any of its subsidiaries (whether by way of merger,\nconsolidation, purchase, exchange, recapitalization, restructuring or otherwise) or any acquisition transaction for all or part of the assets of the\nCompany or any of its businesses or subsidiaries; (iii) make, or in any way participate in, directly or indirectly, any "solicitation" of "proxies" (as\nsuch terms are used in the rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person or entity with respect\nto the voting of, any voting securities of the Company; (iv) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3)\nof the Exchange Act) with respect to any securities of the Company or any of its subsidiaries; (v) seek or propose, alone or in concert with others, to\ninfluence or control the management or policies of the Company or any of its subsidiaries or to become, designate, replace or remove a member of\nthe board of directors of the Company or any of its subsidiaries; (vi) directly or indirectly enter into any discussions, negotiations, agreements,\narrangements or understandings with any other person with respect to any of the foregoing activities or propose any of such activities to any other\nperson; (vii) advise, assist, encourage, or act as a financing source for or otherwise invest in any other person in connection any of the foregoing\nactivities; (viii) disclose (other than, to the extent otherwise permitted hereby, to the\n5\nCompany or its Representatives) any intention, plan or arrangement inconsistent with any of the foregoing; (ix) request that the Company, the\nCompany Board or any of their Representatives, directly or indirectly, (A) amend or waive any provision of this Paragraph 4.1 (including this clause\n(ix)) or (B) otherwise consent to any action inconsistent with any provision of this Paragraph 4.1 (including this clause (ix)); (x) take any action\nthat\nmight require the Company or any of its Representatives to make a public announcement regarding any of the activities referred to in clauses (i)-\n(viii) of this Paragraph 4.1 (other than disclosures otherwise expressly permitted by this letter agreement); or (xi) agree to take any of the foregoing\nactions.\n4.2 Prohibition on Voting Restrictions. For a period of two (2) years from the date hereof, unless consented to in advance by the Company\nBoard to do so (which invitation will be expressly set forth in a written instrument from, and duly authorized by, the Company Board), you shall not,\nand you shall cause your Representatives (other than third party advisors not taking action on your behalf or at your direction) not to, enter into any\nexclusivity, lock-up or other agreement, arrangement or understanding, whether written or oral, with any current or future shareholder of the\nCompany or other person that has the right to vote or direct the voting of voting securities of the Company that is intended or could reasonably be\nexpected to limit, restrict, restrain or otherwise impair in any manner, directly or indirectly, the ability of such person to (i) vote any voting securities\nof the Company beneficially owned by such person (or with respect to which such person otherwise has the right to vote or to the direct the voting of\nsuch voting securities) in favor of, or (ii) tender any such voting or equity securities of the Company into any offer made in connection with, any\ntransaction involving the Company.\n4.3 Securities Laws. You understand and agree that you are aware, and that you will advise your Representatives, that the U.S. federal and state\nsecurities laws prohibit, and certain foreign laws may prohibit, any person who has material, non-public information about a company from\npurchasing or selling securities of such company or from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that the person is likely to purchase or sell such securities. You will, and will cause your Representatives to, comply with\nU.S. federal and state securities laws and foreign laws in connection with the receipt of Evaluation Material contemplated hereby.\n5.\nCertain Additional Restrictions\n5.1 No Partnering. Neither you nor your affiliates nor any of your Representatives have or will, without the prior written consent of the\nCompany Board, enter into, directly or indirectly, any discussions, negotiations, agreements, arrangements or understandings with any person (other\nthan your Representatives), with respect to a possible Transaction or a transaction involving any assets of the Company or that could otherwise affect\nsuch person's decisions or actions with respect to a possible Transaction.\n5.2 Prohibition on Exclusive Arrangements. You have not and will not, directly or indirectly, enter into any agreement, arrangement or\nunderstanding, whether written or oral, with any potential financing source or sources which may reasonably be expected to limit, restrict, restrain,\notherwise impair in any manner, directly or indirectly, the ability of such financing source or sources to provide financing or other assistance to any\nother party in any other transaction involving the Company.\n6\n6. Miscellaneous.\n6.1 Breach You shall be responsible for ensuring that your Representatives adhere to the terms of this letter agreement as if such persons were\noriginal parties hereto, you shall be responsible for any breach of this letter agreement by you or any of your Representatives, and you agree, at your\nsole expense, to take all reasonable measures to avoid any prohibited or unauthorized disclosure or use of the Evaluation Material or other breach\nof\nthis letter agreement by any of your Representatives. The foregoing obligation shall not limit the remedies available to the Company for any breach\nof this letter agreement by any of your Representatives.\n6.2 Process. You understand and agree that: (i) unless and until a Definitive Transaction Agreement has been executed and delivered by the\nCompany and you, none of the Company, the Company Board nor any of their Representatives will be under any legal obligation of any kind\nwhatsoever with respect to the Transaction, and except as arising pursuant to such a Definitive Transaction Agreement, neither you nor any of your\nRepresentatives shall have, and you hereby waive for yourself and on their behalf, any claims whatsoever against the Company, the Company Board\nor any of their Representatives arising out of or relating to the Transaction; (ii) no Information provided, including any statements made, to you or\nany of your Representatives prior to, in the course of or for the purpose of negotiations relating to a Transaction, will constitute an offer by the\nCompany or on the Company's behalf, nor will you or any of your Representatives claim that any such Information forms the basis of any contract\nor agreement (including, without limitation, an agreement in principle), to engage in any transaction with you, and you hereby waive any claims to\nthe contrary; (iii) the Company Board and the Company reserve the right, in their sole discretion, to both reject any and all proposals made by you or\nany of your Representatives with regard to a Transaction and/or to terminate discussions and negotiations with you or any of your Representatives at\nany time for any reason or no reason; (iv) the Company, the Company Board or any of their Representatives may enter into negotiations and\ndiscussions with any other parties for a possible transaction in lieu of the Transaction with you and enter into a definitive agreement with respect\nthereto without prior notice to you or any of your Representatives; (v) the Company Board and the Company may change in any way in their sole\ndiscretion the Company's processes or procedures for considering the Transaction or any transaction in lieu of the Transaction without prior notice to\nyou or any of your Representatives; (vi) the Company Board and the Company retain the right to determine, in their sole discretion, what\nInformation it will make available to you or any of your Representatives; and (vii) any passwords provided to you in connection with an electronic\ndata room ("EDR"), if any, will be used only by the individuals to whom such passwords are issued, and that should you desire additional\nindividuals to access the EDR, you will request additional passwords for such individuals.\n6.3\nModification and Waiver. This letter agreement may be modified or waived only by a separate writing by the Company and you expressly\nso\nmodifying or waiving this letter agreement. It is understood and agreed that no failure or delay by the Company, or the Company Board on behalf\nof the Company, in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\n7\n6.4 Severability.. The illegality, invalidity or unenforceability of any provision of this letter agreement in any jurisdiction shall not affect the\nlegality, validity or enforceability of any other provision of this letter agreement or the legality, validity or enforceability of such provision of this\nletter agreement in any other jurisdiction. In the event that any of the provisions of this letter agreement shall be held by a court or other tribunal of\ncompetent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be deemed limited or eliminated only to the minimum extent\nnecessary so that this letter agreement shall otherwise remain in full force and effect.\n6.5 Entire Agreement. This letter agreement contains the entire agreement between the Company and you concerning the subject matter hereof\nand supersedes all previous agreements, written or oral, to the extent relating to the exchange of Evaluation Material contemplated hereby or any\nconsideration, discussions or negotiations of a Transaction.\n6.6 Remedies. It is further understood and agreed that money damages may not be a sufficient remedy for any breach of this letter agreement\nby you or any of your Representatives and, in addition to all other remedies that the Company or any of its Representatives may have at law or in\nequity and without limiting any of the foregoing, the Company and any of its Representatives shall be entitled to equitable relief, including, without\nlimitation, injunction and specific performance, as a remedy for any such breach and you hereby waive any requirement for the securing or posting\nof any bond in connection with such remedy. Notwithstanding anything to the contrary contained in this letter agreement and without limiting any of\nthe Company's other rights and remedies available in connection with this letter agreement, if a court of competent jurisdiction determines that you\nor any of your Representatives has breached any provision of this letter agreement, you shall be liable for and pay to the Company on demand any\ndamages awarded, and the reasonable legal fees and expenses incurred by the Company in connection with such breach, including any litigation\nrelated thereto and any appeal therefrom.\n6.7 Governing Law; Venue. This letter agreement shall be governed by and construed in accordance with the laws of the State of Delaware\nwithout giving effect to the conflicts of law provisions thereof. The parties hereto hereby irrevocably and unconditionally consent to the sole and\nexclusive jurisdiction of, and waive any objection to the laying of venue in, the U.S. federal and state court sitting in the City of Wilmington\n(collectively, the "Delaware Courts") for any action, suit or proceeding arising out of or relating to this letter agreement, and agree not to commence\nany action, suit or proceeding related thereto except in a Delaware Court. Each of the parties hereto further agrees that service of any process,\nsummons, notice or document by registered mail to its address set forth on the first page of this letter agreement shall be effective service of process\nfor any action, suit or proceeding brought against it in any Delaware Court.\n6.8 Assignment; Binding Effect. You may not assign your rights or obligations under this letter agreement to any person. The Company may\nassign its rights and obligations, in whole or in part, under this letter agreement to any person. This letter agreement shall be binding upon you and\nyour respective successors and permitted assigns and shall inure to the benefit of, and be enforceable by, the Company and its respective successors\nand assigns\n6.9 Expenses. All costs and expenses incurred in connection with this letter agreement and the consideration by the parties of the Transaction,\nincluding, without limitation, all fees of law firms, commercial banks, investment banks, accountants, public relations firms, experts and consultants,\nshall be paid by the party incurring such cost or expense.\n8\n6.10 Headings. Headings included in this letter agreement are for the convenience of the parties only and shall be given no substantive\nor\ninterpretive effect.\n6.11 Counterparts; Signatures This letter agreement may be executed in one or more counterparts, each of which shall be deemed to be\nan\norigina but all of which together shall constitute one and the same instrument. This letter agreement or any counterpart may be executed and\ndelivered by facsimile copies or electronic transmission, each of which shall be deemed to be an original.\n{Remainder of page intentionally left blank.}\n9\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nWILLIAMS CONTROLS, INC.\nBy:\n/s/ Patrick Cavanagh\nName: Patrick Cavanagh\nTitle: Chief Executive Officer\nAccepted and agreed as of this 5th day of July, 2012:\nCURTISS-WRIGHT CONTROLS, INC.\nBy:\n/s/ Brian Freeman\nName: Brian Freeman\nTitle:\nVice President Technology & Market\nDevelopment\n10\nAnnex A\nCompany Representatives\nHOULIHAN LOKEY - NEW YORK\n245 Park Avenue, 20th Floor\nNew York, NY 10167\nPhone: (212) 497-4100\nName\nOffice Information\nJim Lavelle\nManaging Director\nAssistant:\nTel:\n(212) 497-4107\nTana Dippolito\nFax:\n(212) 497-7976\n(212) 497-7911\nMobile: (203) 858-4632\nTDippolito@HL.com\nEmail: JLavelle@HL.com\nGene Bazemore\nSenior Vice President\nAssistant:\nTel:\n(212) 497-7842\nTana Dippolito\nFax:\n(212) 497-7976\n(212) 497-7911\nMobile: (917) 605-1163\nTDippolito@HL.com\nEmail: EBazemore@HL.com\nDisha Mehta\nAssociate\nAssistant:\nTel:\n(212) 497-4249\nTana Dippolito\nFax:\n(212) 497-7976\n(212) 497-7911\nMobile: (512) 944-7280\nTDippolito@HL.com\nEmail: DMehta@HL.com\nBill Bronander\nFinancial Analyst\nTel:\n(212) )497-7879\nFax:\n(212) 497-7976\nMobile: (201) 669-9149\nEmail: BBronander@HL.com\n11 EX-99.(E)(10) 2 d432563dex99e10.htm CONFIDENTIALITY AGREEMENT\nExhibit 99(e) (10)\nCONFIDENTIAL\nWilliams Controls, Inc.\n14100 SW 72 Avenue\nPortland, Oregon 97224\nJuly 5, 2012\nMr. Brian Freeman\nCurtiss-Wright Controls, Inc.\n15800 John J. Delaney Dr., Suite 200\nCharlotte, NC 28277\nDear Mr. Watts:\nIn connection with the consideration of a possible negotiated transaction (the “Transaction”) involving Curtiss-Wright Controls, Inc. or its\naffiliates (collectively, “you”) and Williams Controls, Inc., a Delaware corporation (the “Company”), you have requested information regarding the\nCompany. As a condition to any information regarding the Company being furnished to you, you agree to treat any Evaluation Material (as defined\nbelow), and to take or abstain from taking certain other actions, in accordance with the provisions of this letter agreement.\n1. Definitions.\n1.1 Evaluation Material. The term “Evaluation Material” means all information, data, reports, interpretations, forecasts, business plans and\nrecords, financial or otherwise, and whether written, oral, electronic, visual or otherwise (whatever the form or transmission or storage medium),\nconcerning or related to the Company, any of its affiliates, subsidiaries or joint ventures, or any of the businesses, properties, products, intellectual\nproperty, product designs and plans, technical know-how, marketing information, services, costs and pricing information, methods of operation,\nemployees, financial condition, operations, assets, liabilities, results of operations and/or prospects of any of the foregoing (whether prepared by the\nCompany, any of its Representatives (as defined below) or otherwise) that previously has been or may be furnished to you or any of your\nRepresentatives by or on behalf of the Company or any of its Representatives (collectively, “Information”), as well as all notes, analyses,\ncompilations, summaries, extracts, studies, interpretations or other materials prepared by you or any of your Representatives that contain, reflect or\nare based upon, in whole or in part, any such Information, and in each case regardless of whether or not specifically marked as confidential. The\nterm “Evaluation Material” does not include Information that (i) is or becomes generally available to the public (other than as a result of a disclosure\nby you or any of your Representatives in violation of this letter agreement or any other obligation of confidentiality), or (ii) was within your\npossession prior to it being furnished to you by or on behalf of the Company or any of its Representatives (as can be demonstrated by you with dated\nmaterials) or thereafter becomes available to you, in either case without being subject to any contractual, legal, fiduciary or other obligation of\nconfidentiality to the Company or any other person with respect to such Information, or (iii) developed by you independently of the Company as\nsupported by your\nnd\nwritten records. The term “Evaluation Material” shall include, without limitation, the existence of a possible Transaction, your or the Company’s\ninterest in a possible Transaction, the fact that Evaluation Material has been made available to you or any of your Representatives, the fact that\ndiscussions or negotiations have taken place, are taking place or may take place concerning a possible Transaction or any similar transaction or any\nof the terms, conditions or other facts with respect thereto (including, without limitation, the status thereof and any drafts of any term sheets, letters\nof intent or agreements related to the Transaction), and the existence and terms of this letter agreement. You acknowledge and agree that the\nEvaluation Material may include Information made available to the Company or any of its Representatives pursuant to confidentiality agreements or\nother obligations of confidentiality between the Company and/or one or more of its Representatives and third parties.\n1.2 Other Definitions. As used in this letter agreement, (i) the term “Representatives” means, each party’s respective affiliates and joint\nventures and any partners, members, managers, directors, officers, employees, agents, representatives, advisors (including, without limitation,\nfinancial advisors, bankers, consultants, counsel and accountants) thereof, and, subject to the next sentence, financing sources, (ii) the term “person”\nshall be broadly interpreted to include the media and any individual, corporation, partnership, limited liability company, group, governmental\nauthority or other entity, and (iii) the term “affiliate” shall have the meaning ascribed to such term in Rule 12b-2 promulgated under the Securities\nExchange Act of 1934, as amended (the “Exchange Act”). Your or your Representatives’ actual or prospective financing sources for the Transaction\nshall not be deemed “Representatives” unless and until, prior to contacting such financing sources (including for purposes of checking conflicts), the\nCompany has consented in writing to such persons being contacted by you or your Representatives for such purposes.\n2. Evaluation Material.\n2.1 Nondisclosure of Evaluation Material. You hereby agree that you shall, and you shall cause your Representatives to: (i) use the Evaluation\nMaterial solely for the purpose of evaluating your possible participation in the Transaction, (ii) keep the Evaluation Material strictly confidential in\naccordance with the terms of this letter agreement, and (iii) without the prior written consent of the Company, not disclose any of the Evaluation\nMaterial to any person; provided, however, that you may disclose any of the Evaluation Material to your Representatives who need to know such\nInformation for the sole purpose set forth in clause (i) above and who agree to be bound by the terms hereof to the same extent as if they were parties\nhereto. You hereby agree to notify the Company immediately upon discovery of any unauthorized use or disclosure of Evaluation Material or any\nother breach of this letter agreement by you or any of your Representatives, and will cooperate with the Company to assist the Company to regain\npossession of the Evaluation Material and prevent its further unauthorized use or disclosure.\n2.2 Compulsory Disclosure. In the event that you or any of your Representatives receives a request (by deposition, interrogatory, request for\ndocuments, subpoena, civil investigative demand or similar process) to disclose, or is otherwise required by law or any rule of any securities\nexchange to which you or any of your Representatives is subject (“Law”), including, for purposes of accountants, applicable professional standards\nof the American Institute of Certified Public Accountants, Public Company Accounting Oversight Board or state\n2\nboards of accountancy or obligations thereunder, to disclose, any of the Evaluation Material, you shall (x) provide the Company with prompt written\nnotice of such request or requirement, along with, to the extent applicable, a copy of the request and the proposed disclosure, the circumstances\nsurrounding such request or requirement, the reason that such disclosure is required and the time and place such disclosure is expected to be made, in\neach case with sufficient specificity so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with the\nprovisions of this letter agreement, and (y) if requested by the Company, assist the Company in seeking a protective order or other appropriate\nremedy in response to such request or requirement. Without limiting the generality of the foregoing, you shall not, and shall cause your\nRepresentatives not to, oppose any action by the Company to obtain such a protective order or other remedy. Notwithstanding Paragraph 2.1 hereof,\nif, in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you are, or any of your Representatives is,\nnonetheless, on the advice of your counsel, required by Law to disclose any Evaluation Material, you or such Representative may disclose to the\napplicable tribunal or other person only that portion of the Evaluation Material which such counsel advises you is required by Law to be disclosed,\nprovided that you, and, if appropriate, such Representative, exercise your reasonable best efforts to continue to preserve, and have such tribunal or\nother person preserve, the confidentiality of such Evaluation Material. Notwithstanding any disclosure of Evaluation Material pursuant to this\nParagraph 2.2, you and your Representatives will continue to be bound by your and their obligations of confidentiality (including, without limitation,\nwith respect to any Evaluation Material disclosed pursuant to this Paragraph 2.2) and other obligations hereunder.\n2.3 Privileges. Neither the Company nor the board of directors of the Company (the “Company Board”) intend to waive, or to cause any of\ntheir Representatives to waive, the attorney-client, attorney work product or other applicable privilege of the Company, the Company Board or any\nof the Company’s subsidiaries, affiliates or joint ventures (any of the foregoing, a “Privilege”) by providing any Evaluation Material subject to a\nPrivilege, and any production by the Company, the Company Board or any of their Representatives of such Information shall be inadvertent.\nAccordingly, you agree that a production to you or any of your Representatives by the Company, the Company Board or any of their Representatives\nof Evaluation Materials protected by a Privilege shall not constitute a waiver of any such Privilege by any person, and you agree that, upon request\nby the Company, the Company Board or any of their Representatives, you will, and you will cause your Representatives to, immediately return\nand/or destroy such inadvertently produced Evaluation Materials.\n2.4 Information Request Procedures; No Contact. You agree that, without the prior written consent of the Company Board, all communications\nfrom you or your Representatives regarding the proposed Transaction, including, without limitation, inquiries, requests for additional information,\nrequests for access to personnel or other business contacts, requests for facility tours or discussions or questions regarding procedures, will be\nsubmitted only to the persons listed in Annex A hereto or to such other person or persons as specifically designated in writing by the Company for\nsuch purposes, except that you or your counsel may direct questions regarding this letter agreement to Davis Wright Tremaine LLP. You agree that\nyou will not, and you will cause your Representatives not to, initiate or maintain contact with (i) subject to the preceding sentence, the Company’s\nRepresentatives, regarding any matters related to the possible Transaction, employment arrangements or understandings, any rollover of equity, the\n3\nprocess or discussions of the Company Board or any related matters, or (ii) any customer, supplier, licensor, licensee or other business partner of the\nCompany or any of its subsidiaries or joint ventures with respect to any matters related to the Company or any of its subsidiaries or joint ventures or\nany of the foregoing persons’ businesses or assets, in either case except with the prior written consent of, and supervision by, the Company Board or\na designated Representative of the Company Board.\n2.5 Return and Destruction of Evaluation Material. If you decide that you do not wish to participate in the Transaction, you will promptly\ninform the Company of that decision. In that case, or at any time upon the request of the Company for any reason, you will promptly (i) deliver to\nthe Company all Evaluation Material furnished by or on behalf of the Company or any of its Representatives and (ii) deliver to the Company or\ndestroy all other Evaluation Material, in each case without keeping any copies, in whole or part thereof in any medium whatsoever; provided,\nhowever, that you and your Representatives shall be entitled to retain the minimum number of copies of the Evaluation Material to the extent\nnecessary to comply with applicable Law, which shall be used solely for such purposes. In the event of such a decision or request, you shall cause\none of your authorized officers to deliver to the Company a certificate stating that you have complied with all of the requirements of this Paragraph\n2.5. Notwithstanding the return or the destruction of the Evaluation Material or the termination of discussions regarding the Transaction, you and\nyour Representatives will continue to be bound by your and their obligations of confidentiality (including, without limitation, with respect to any\nEvaluation Material destroyed or returned pursuant to this Paragraph 2.5 or any Evaluation Material retained pursuant to the proviso to the first\nsentence of this Paragraph 2.5) and other obligations hereunder.\n2.6 Accuracy of Evaluation Material. You understand and agree that none of the Company, the Company Board or any of their Representatives\nis making or shall be deemed to make or have made any representation or warranty, express or implied, as to the accuracy or completeness of the\nEvaluation Material. You agree that none of the Company, the Company Board or any of their Representatives shall have any liability to you or any\nof your Representatives relating to or resulting from the use of the Evaluation Material, including, without limitation, for any conclusions that you,\nany of your Representatives or any other person derive from the Evaluation Material. Only those representations or warranties that are made in a\nfinal definitive written agreement (if any) providing for the Transaction (which, for avoidance of doubt, shall not include a term sheet, letter of intent\nor other similar instrument) (a “Definitive Transaction Agreement”), when, as and if executed and delivered, and subject to such limitations and\nrestrictions as may be specified therein, will have any legal effect.\n2.7 Ownership of Evaluation Material. Nothing herein, nor any disclosure contemplated hereby, shall be deemed to transfer to you or any other\nperson any interest in, or confer in you or any other person any right (including, without limitation, intellectual property right) over, the Evaluation\nMaterial whatsoever beyond those interests and rights expressly provided for in this letter agreement.\n2.8 Term. The obligations of each party hereto set forth in this Paragraph 2 shall terminate and be of no further force or effect on the date that\nis three (3) years from the date hereof.\n4\n3. Non-Solicitation; Non-Hire.\nIn consideration of the Evaluation Material being furnished to you, for a period of two (2) years from the date hereof, you will cause your\nRepresentatives who are aware of this letter agreement (other than third party advisors taking action on behalf of an unrelated person without breach\nof any of the other terms of this letter agreement) not to, directly or indirectly, without obtaining the prior written consent of the Company, solicit for\nemployment any current or former officers, employees or independent contractors of the Company or any of its affiliates or joint ventures (whether\nor not such person would commit any breach of such person’s contract of service in leaving such employment or service); provided, however, that\nthe restriction on solicitation above shall not restrict your ability to conduct generalized searches for officers or employees by use of advertisements\nin periodicals of general circulation.\n4. Standstill; Securities Laws.\n4.1 Standstill. You hereby represent and warrant that you and your affiliates do not beneficially own any shares of the common stock of the\nCompany. In consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of two (2) years from the date\nhereof, unless invited in advance by the Company Board to do so (which invitation will be expressly set forth in a written instrument from, and duly\nauthorized by, the Company Board), you will not, and you will cause your Representatives (other than third party advisors taking action on behalf of\nan unrelated person without breach of any of the other terms of this letter agreement) not to, directly or indirectly, acting alone or as part of a group:\n(i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, (a) any securities (whether equity, debt or otherwise)\nof the Company or any of its subsidiaries (or beneficial ownership thereof, as such term is used pursuant to Rule 13d-3 under the Exchange Act),\n(b) any right to vote or to direct the voting of any voting or equity securities of the Company or any of its subsidiaries, or (c) any direct or indirect\nrights to acquire any securities of the Company or any of its subsidiaries or any derivative securities with economic equivalents of ownership of any\nof such securities; (ii) enter into or agree, offer, propose or seek to enter into, or otherwise be involved in or part of, directly or indirectly, any\nacquisition transaction or other business combination relating to all or part of the Company or any of its subsidiaries (whether by way of merger,\nconsolidation, purchase, exchange, recapitalization, restructuring or otherwise) or any acquisition transaction for all or part of the assets of the\nCompany or any of its businesses or subsidiaries; (iii) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as\nsuch terms are used in the rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person or entity with respect\nto the voting of, any voting securities of the Company; (iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3)\nof the Exchange Act) with respect to any securities of the Company or any of its subsidiaries; (v) seek or propose, alone or in concert with others, to\ninfluence or control the management or policies of the Company or any of its subsidiaries or to become, designate, replace or remove a member of\nthe board of directors of the Company or any of its subsidiaries; (vi) directly or indirectly enter into any discussions, negotiations, agreements,\narrangements or understandings with any other person with respect to any of the foregoing activities or propose any of such activities to any other\nperson; (vii) advise, assist, encourage, or act as a financing source for or otherwise invest in any other person in connection any of the foregoing\nactivities; (viii) disclose (other than, to the extent otherwise permitted hereby, to the\n5\nCompany or its Representatives) any intention, plan or arrangement inconsistent with any of the foregoing; (ix) request that the Company, the\nCompany Board or any of their Representatives, directly or indirectly, (A) amend or waive any provision of this Paragraph 4.1 (including this clause\n(ix)) or (B) otherwise consent to any action inconsistent with any provision of this Paragraph 4.1 (including this clause (ix)); (x) take any action that\nmight require the Company or any of its Representatives to make a public announcement regarding any of the activities referred to in clauses (i)-\n(viii) of this Paragraph 4.1 (other than disclosures otherwise expressly permitted by this letter agreement); or (xi) agree to take any of the foregoing\nactions.\n4.2 Prohibition on Voting Restrictions. For a period of two (2) years from the date hereof, unless consented to in advance by the Company\nBoard to do so (which invitation will be expressly set forth in a written instrument from, and duly authorized by, the Company Board), you shall not,\nand you shall cause your Representatives (other than third party advisors not taking action on your behalf or at your direction) not to, enter into any\nexclusivity, lock-up or other agreement, arrangement or understanding, whether written or oral, with any current or future shareholder of the\nCompany or other person that has the right to vote or direct the voting of voting securities of the Company that is intended or could reasonably be\nexpected to limit, restrict, restrain or otherwise impair in any manner, directly or indirectly, the ability of such person to (i) vote any voting securities\nof the Company beneficially owned by such person (or with respect to which such person otherwise has the right to vote or to the direct the voting of\nsuch voting securities) in favor of, or (ii) tender any such voting or equity securities of the Company into any offer made in connection with, any\ntransaction involving the Company.\n4.3 Securities Laws. You understand and agree that you are aware, and that you will advise your Representatives, that the U.S . federal and state\nsecurities laws prohibit, and certain foreign laws may prohibit, any person who has material, non-public information about a company from\npurchasing or selling securities of such company or from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that the person is likely to purchase or sell such securities. You will, and will cause your Representatives to, comply with\nU.S . federal and state securities laws and foreign laws in connection with the receipt of Evaluation Material contemplated hereby.\n5. Certain Additional Restrictions\n5.1 No Partnering. Neither you nor your affiliates nor any of your Representatives have or will, without the prior written consent of the\nCompany Board, enter into, directly or indirectly, any discussions, negotiations, agreements, arrangements or understandings with any person (other\nthan your Representatives), with respect to a possible Transaction or a transaction involving any assets of the Company or that could otherwise affect\nsuch person’s decisions or actions with respect to a possible Transaction.\n5.2 Prohibition on Exclusive Arrangements. You have not and will not, directly or indirectly, enter into any agreement, arrangement or\nunderstanding, whether written or oral, with any potential financing source or sources which may reasonably be expected to limit, restrict, restrain,\notherwise impair in any manner, directly or indirectly, the ability of such financing source or sources to provide financing or other assistance to any\nother party in any other transaction involving the Company.\n6\n6. Miscellaneous.\n6.1 Breach. You shall be responsible for ensuring that your Representatives adhere to the terms of this letter agreement as if such persons were\noriginal parties hereto, you shall be responsible for any breach of this letter agreement by you or any of your Representatives, and you agree, at your\nsole expense, to take all reasonable measures to avoid any prohibited or unauthorized disclosure or use of the Evaluation Material or other breach of\nthis letter agreement by any of your Representatives. The foregoing obligation shall not limit the remedies available to the Company for any breach\nof this letter agreement by any of your Representatives.\n6.2 Process. You understand and agree that: (i) unless and until a Definitive Transaction Agreement has been executed and delivered by the\nCompany and you, none of the Company, the Company Board nor any of their Representatives will be under any legal obligation of any kind\nwhatsoever with respect to the Transaction, and except as arising pursuant to such a Definitive Transaction Agreement, neither you nor any of your\nRepresentatives shall have, and you hereby waive for yourself and on their behalf, any claims whatsoever against the Company, the Company Board\nor any of their Representatives arising out of or relating to the Transaction; (ii) no Information provided, including any statements made, to you or\nany of your Representatives prior to, in the course of or for the purpose of negotiations relating to a Transaction, will constitute an offer by the\nCompany or on the Company’s behalf, nor will you or any of your Representatives claim that any such Information forms the basis of any contract\nor agreement (including, without limitation, an agreement in principle), to engage in any transaction with you, and you hereby waive any claims to\nthe contrary; (iii) the Company Board and the Company reserve the right, in their sole discretion, to both reject any and all proposals made by you or\nany of your Representatives with regard to a Transaction and/or to terminate discussions and negotiations with you or any of your Representatives at\nany time for any reason or no reason; (iv) the Company, the Company Board or any of their Representatives may enter into negotiations and\ndiscussions with any other parties for a possible transaction in lieu of the Transaction with you and enter into a definitive agreement with respect\nthereto without prior notice to you or any of your Representatives; (v) the Company Board and the Company may change in any way in their sole\ndiscretion the Company’s processes or procedures for considering the Transaction or any transaction in lieu of the Transaction without prior notice to\nyou or any of your Representatives; (vi) the Company Board and the Company retain the right to determine, in their sole discretion, what\nInformation it will make available to you or any of your Representatives; and (vii) any passwords provided to you in connection with an electronic\ndata room (“EDR”), if any, will be used only by the individuals to whom such passwords are issued, and that should you desire additional\nindividuals to access the EDR, you will request additional passwords for such individuals.\n6.3 Modification and Waiver. This letter agreement may be modified or waived only by a separate writing by the Company and you expressly\nso modifying or waiving this letter agreement. It is understood and agreed that no failure or delay by the Company, or the Company Board on behalf\nof the Company, in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\n7\n6.4 Severability. The illegality, invalidity or unenforceability of any provision of this letter agreement in any jurisdiction shall not affect the\nlegality, validity or enforceability of any other provision of this letter agreement or the legality, validity or enforceability of such provision of this\nletter agreement in any other jurisdiction. In the event that any of the provisions of this letter agreement shall be held by a court or other tribunal of\ncompetent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be deemed limited or eliminated only to the minimum extent\nnecessary so that this letter agreement shall otherwise remain in full force and effect.\n6.5 Entire Agreement. This letter agreement contains the entire agreement between the Company and you concerning the subject matter hereof\nand supersedes all previous agreements, written or oral, to the extent relating to the exchange of Evaluation Material contemplated hereby or any\nconsideration, discussions or negotiations of a Transaction.\n6.6 Remedies. It is further understood and agreed that money damages may not be a sufficient remedy for any breach of this letter agreement\nby you or any of your Representatives and, in addition to all other remedies that the Company or any of its Representatives may have at law or in\nequity and without limiting any of the foregoing, the Company and any of its Representatives shall be entitled to equitable relief, including, without\nlimitation, injunction and specific performance, as a remedy for any such breach and you hereby waive any requirement for the securing or posting\nof any bond in connection with such remedy. Notwithstanding anything to the contrary contained in this letter agreement and without limiting any of\nthe Company’s other rights and remedies available in connection with this letter agreement, if a court of competent jurisdiction determines that you\nor any of your Representatives has breached any provision of this letter agreement, you shall be liable for and pay to the Company on demand any\ndamages awarded, and the reasonable legal fees and expenses incurred by the Company in connection with such breach, including any litigation\nrelated thereto and any appeal therefrom.\n6.7 Governing Law; Venue. This letter agreement shall be governed by and construed in accordance with the laws of the State of Delaware\nwithout giving effect to the conflicts of law provisions thereof. The parties hereto hereby irrevocably and unconditionally consent to the sole and\nexclusive jurisdiction of, and waive any objection to the laying of venue in, the U.S. federal and state court sitting in the City of Wilmington\n(collectively, the “Delaware Courts”) for any action, suit or proceeding arising out of or relating to this letter agreement, and agree not to commence\nany action, suit or proceeding related thereto except in a Delaware Court. Each of the parties hereto further agrees that service of any process,\nsummons, notice or document by registered mail to its address set forth on the first page of this letter agreement shall be effective service of process\nfor any action, suit or proceeding brought against it in any Delaware Court.\n6.8 Assignment; Binding Effect. You may not assign your rights or obligations under this letter agreement to any person. The Company may\nassign its rights and obligations, in whole or in part, under this letter agreement to any person. This letter agreement shall be binding upon you and\nyour respective successors and permitted assigns and shall inure to the benefit of, and be enforceable by, the Company and its respective successors\nand assigns.\n6.9 Expenses. All costs and expenses incurred in connection with this letter agreement and the consideration by the parties of the Transaction,\nincluding, without limitation, all fees of law firms, commercial banks, investment banks, accountants, public relations firms, experts and consultants,\nshall be paid by the party incurring such cost or expense.\n8\n6.10 Headings. Headings included in this letter agreement are for the convenience of the parties only and shall be given no substantive or\ninterpretive effect.\n6.11 Counterparts; Signatures. This letter agreement may be executed in one or more counterparts, each of which shall be deemed to be an\noriginal but all of which together shall constitute one and the same instrument. This letter agreement or any counterpart may be executed and\ndelivered by facsimile copies or electronic transmission, each of which shall be deemed to be an original.\n{Remainder of page intentionally left blank.}\n9\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nWILLIAMS CONTROLS, INC.\nBy: /s/ Patrick Cavanagh\nName: Patrick Cavanagh\nTitle: Chief Executive Officer\nAccepted and agreed as of this 5 day of July, 2012:\nCURTISS-WRIGHT CONTROLS, INC.\nBy: /s/ Brian Freeman\nName: Brian Freeman\nTitle: Vice President Technology & Market\nDevelopment\n10\nth\nAnnex A\nCompany Representatives\nHOULIHAN LOKEY – NEW YORK\n245 Park Avenue, 20 Floor\nNew York, NY 10167\nPhone: (212) 497-4100\nName\nOffice Information\nJim Lavelle\nManaging Director\nAssistant:\nTana Dippolito\n(212) 497-7911\nTDippolito@HL.com\nTel:\nFax:\nMobile:\nEmail:\n(212) 497-4107\n(212) 497-7976\n(203) 858-4632\nJLavelle@HL.com\nGene Bazemore\nSenior Vice President\nAssistant:\nTana Dippolito\n(212) 497-7911\nTDippolito@HL.com\nTel:\nFax:\nMobile:\nEmail:\n(212) 497-7842\n(212) 497-7976\n(917) 605-1163\nEBazemore@HL.com\nDisha Mehta\nAssociate\nAssistant:\nTana Dippolito\n(212) 497-7911\nTDippolito@HL.com\nTel:\nFax:\nMobile:\nEmail:\n(212) 497-4249\n(212) 497-7976\n(512) 944-7280\nDMehta@HL.com\nBill Bronander\nFinancial Analyst\nTel:\nFax:\nMobile:\nEmail:\n(212) 497-7879\n(212) 497-7976\n(201) 669-9149\nBBronander@HL.com\n11\nth d359b7e3900a7bb1d54a3710449422fc.pdf effective_date jurisdiction party term Exhibit A\nNon-Disclosure Agreement\nDecember 8, 2015\nReference is made to the Standstill Agreement, dated December 8, 2015 (the “Standstill Agreement”), by and among Anchor Bancorp\n(the “Company”), Varonica S. Ragan (the “Director”) and Joel S. Lawson IV (“Lawson”). Capitalized terms used but not defined herein shall have\nthe meanings ascribed to them in the Standstill Agreement, and the rules of interpretation set forth in Section 7 of the Standstill Agreement shall\napply to this Non-Disclosure Agreement mutatis mutandis.\n1.\nThe Director may be provided certain information and data in connection with her serving as a director of the Company or\nAnchor Bank that the Company or Anchor Bank wishes to keep confidential, including information (whether furnished in writing or electronic\nformat or orally) regarding the Company’s and Anchor Bank’s governance, board of directors, management, plans, strategies, business, finances or\noperations and information that the Company or Anchor Bank has obtained from third parties and with respect to which the Company or Anchor\nBank is obligated to maintain confidentiality (collectively, “Confidential Information”). For the avoidance of doubt, Confidential Information also\nincludes all information regarding the operations, procedures, strategies, plans and decisions of the Strategy Committee of the Company’s Board of\nDirectors. Except as otherwise permitted in this Non-Disclosure Agreement, the Director will not disclose any Confidential Information in any\nmanner whatsoever or use any Confidential Information other than in connection with serving as a director of the Company or Anchor Bank\nwithout, in each instance, securing the prior written consent of the Company (acting through a resolution of a majority of the Company’s directors).\n2.\nExcept as set forth in this Section 2, this Non-Disclosure Agreement shall not prevent the Director from privately disclosing\nConfidential Information to (i) officers, directors, accountants and counsel for the Company or Anchor Bank, (ii) the Director ’s legal counsel or\nlegal counsel to Lawson (each a “Director Representative” and collectively, the “Director Representatives”) who needs to know such information for\nthe sole purpose of advising the Director on her actions as a director of the Company or Anchor Bank or advising the Director or Lawson with\nrespect to each of their respective investments in the Company, as applicable, or (iii) Lawson. Notwithstanding the foregoing, it is understood and\nagreed that the Director will not disclose any information that the Director learns or obtains in her capacity as a director of the Company or Anchor\nBank to any Director Representative or Lawson to the extent such disclosure would be reasonably likely to constitute a breach of the Director’s\nfiduciary duties to the Company or Anchor Bank or a waiver of the attorney-client privilege between the Company or Anchor Bank and its counsel\nor the Company’s or Anchor Bank’s attorney work product privilege. The Director also acknowledges and agrees that she will not disclose, and is\nprohibited by law and regulation from disclosing, to any Director Representative or Lawson any reports of examination or other confidential\nsupervisory information of any bank regulatory authority, including the Board of Governors of the Federal Reserve System, the Federal Reserve\nBank of San Francisco, the Washington Department of Financial Institutions or the Federal Deposit Insurance Corporation. Any Director\nRepresentative shall only be provided Confidential\nExhibit A-1\nInformation to the extent that such Director Representative is informed of the confidential nature of the Confidential Information and agrees or is\notherwise obligated to keep such information confidential and to restrict the use of such confidential information in accordance with the terms of this\nNon-Disclosure Agreement. Lawson agrees to keep confidential the Confidential Information and to restrict the use of such Confidential\nInformation in accordance with the terms of this Non-Disclosure Agreement, to be bound by this Non-Disclosure Agreement on the same terms as\nthe Director by countersigning this Non-Disclosure Agreement and not to use any Confidential Information in a manner that may be detrimental to\nthe Company or its subsidiaries, including Anchor Bank, except as permitted by the terms of this Non-Disclosure Agreement. The Director and\nLawson shall be severally responsible for any breach of this Agreement by the Director, Lawson or any of their respective representatives.\n3.\nThe term “Confidential Information” shall not include information that (a) is at the time of disclosure or becomes generally\navailable to the public other than as a result of a disclosure by the Director, a Director Representative or Lawson in violation of the terms of this\nNon-Disclosure Agreement; (b) was, prior to disclosure by the Company or Anchor Bank, already in the possession of the Director, a Director\nRepresentative or Lawson; provided that the source of such information was, to such person’s knowledge, not bound by a confidentiality agreement\nwith, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or Anchor Bank, at the time such information was\ndisclosed to such person; (c) becomes available to the Director, a Director Representative or Lawson on a non-confidential basis from a source other\nthan the Company, an affiliate of the Company (including Anchor Bank) or an agent, representative, attorney, advisor, director, officer or employee\nof the Company or Anchor Bank (collectively, the “Company Representatives”) that is, to such person’s knowledge, not bound by a confidentiality\nagreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or Anchor Bank, and is not, to such person’s\nknowledge, under an obligation to the Company or Anchor Bank not to transmit the information to such person; or (d) was independently developed\nby the Director, a Director Representative or Lawson without reference to or use of the Confidential Information.\n4.\nThe Director is aware, and will advise any Director Representative or Lawson who is informed of the matters that are the subject\nof this Non-Disclosure Agreement, that the Confidential Information may constitute material, non-public information and of the restrictions imposed\nby the United States securities laws on the purchase or sale of securities by any person who is aware of material, non-public information and on the\ncommunication of such information to any other person who may purchase or sell such securities on the basis of such information. The Director,\nLawson or any Director Representative to whom the Director transmits Confidential Information under this Non-Disclosure Agreement will comply\nwith all applicable federal and state securities laws in connection with the purchase or sale, directly or indirectly, of securities of the Company or any\nother entity of which the Director is provided material non-public information in her capacity as a director of the Company or Anchor Bank for as\nlong as the Director, Lawson or any Director Representative are in possession of material non-public information about the Company or such other\nentity. The Company agrees to inform Lawson whenever the trading window applicable to all officers and directors of the Company is\nopen. Further, on the Termination Date (as defined below), the Company shall notify Lawson if the trading window applicable to all officers and\ndirectors of the Company is open. The Company agrees that the Director and Lawson are not restricted by this Non-Disclosure Agreement from\nExhibit A-2\nsecurities of the Company so long as neither the Director nor Lawson is in possession of material, non-public information relating to the Company,\nsubject to their individual compliance with all applicable securities laws. The Director, Lawson and the Company acknowledge that none of the\nprovisions hereto shall in any way limit the Director ’s or Lawson’s activities in the ordinary course of business if such activities will not violate\napplicable securities laws or the obligations set forth in this Non-Disclosure Agreement.\n5.\nEach of the Director, Lawson and any Director Representative to whom the Director transmits Confidential Information under\nthis Non-Disclosure Agreement acknowledges, or shall be deemed to acknowledge, that none of the Company, any affiliate of the Company or any\nCompany Representative makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential\nInformation. None of the Company, any affiliate of the Company or any Company Representative shall have any liability to the Director, Lawson or\nany Director Representative hereunder relating to or resulting from the use of the Confidential Information by the Director, Lawson or any Director\nRepresentative or any errors in or omissions from the Confidential Information.\n6.\nNotwithstanding anything herein to the contrary, in the event that the Director, any Director Representative or Lawson is required\nby applicable law, regulation or legal or judicial process (including without limitation, by deposition, interrogatory, request for documents,\nsubpoena, civil investigative demand or similar process) to disclose any Confidential Information, the Director will give the Company prompt\nwritten notice, to the extent not legally prohibited, of such requirement so that the Company or Anchor Bank may seek an appropriate protective\norder or other remedy, at its sole expense, or waive compliance with the applicable provisions of this Non-Disclosure Agreement. If the Company or\nAnchor Bank seeks a protective order, the Director and Lawson agree to, and shall cause any Director Representative to, provide such cooperation to\nthe extent permitted by law, as the Company or Anchor Bank shall reasonably request and in no event will they oppose action by the Company or\nAnchor Bank to obtain a protective order or other relief to prevent or otherwise narrow the disclosure of Confidential Information or to obtain\nreliable assurance that confidential treatment will be afforded to the Confidential Information. If in the absence of a protective order, the Director,\nany Director Representative or Lawson, based upon the advice of counsel, is legally required to disclose Confidential Information, such person or\nentity may disclose without liability under this Non-Disclosure Agreement such portion of the Confidential Information that counsel advises that the\nDirector, any Director Representative or Lawson is legally required to disclose.\nFor the avoidance of doubt, there shall be no legal requirement applicable to the Director or Lawson to disclose any Confidential\nInformation solely by virtue of the fact that, absent such disclosure, such parties would be prohibited from purchasing, selling, or engaging in\nderivative or other transactions with respect to securities of the Company.\n7.\nThe parties agree that irreparable damage would occur in the event any of the provisions of this Non-Disclosure Agreement were\nnot performed in accordance with the terms hereof and that such damage would not be adequately compensable in monetary damages. Accordingly,\nthe parties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Non-Disclosure Agreement and to enforce specifically\nthe terms and provisions of this Non-Disclosure Agreement exclusively in the State of Washington with a court of competent jurisdiction located in\nThurston County, Washington (the “Washington Courts”), in\nExhibit A-3\naddition to any other remedies at law or in equity, and each party agrees it will not take any action, directly or indirectly, in opposition to the party\nseeking relief on the grounds that any other remedy or relief is available at law or in equity. Each of the parties hereto agrees to waive any bonding\nrequirement under any applicable law, in the case any other party seeks to enforce the terms by way of equitable relief. Furthermore, each of the\nparties hereto irrevocably (a) consents to submit itself to the personal jurisdiction of the Washington Courts in the event any dispute arises out of this\nNon-Disclosure Agreement, (b) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from\nthe Washington Courts, (c) agrees that it shall not bring any action relating to this Non-Disclosure Agreement in any court other than the Washington\nCourts, (d) waives the right to trial by jury, and (d) consents to service of process by the United States Postal Service or reputable overnight mail\ndelivery service, in each case, signature requested, to the address set forth in Section 13 of the Standstill Agreement or as otherwise provided by\napplicable law. THIS NON-DISCLOSURE AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING WITH RESPECT TO\nVALIDITY, INTERPRETATION, EFFECT AND ENFORCEMENT, BY THE LAWS OF THE STATE OF WASHINGTON WITHOUT GIVING\nEFFECT TO THE CHOICE OF LAW PRINCIPLES THEREOF THAT WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS\nOF ANY OTHER JURISDICTION.\n8.\nThis Non-Disclosure Agreement may not be amended except in writing signed by all the parties hereto. No failure or delay by\neither party in exercising any right hereunder or any partial exercise thereof shall operate as a waiver thereof or preclude any other or further\nexercise of any right hereunder.\n9.\nUnless otherwise agreed in writing between the parties, this Non-Disclosure Agreement shall remain in full force and effect until\none (1) year from the date of this Non-Disclosure Agreement (the “Termination Date”), provided, however, that upon expiration of the Standstill\nPeriod, nothing herein shall preclude Lawson from seeking the election of director candidates or submitting proposals at the Company’s 2016 annual\nmeeting of shareholders, including without limitation, making public or private statements relating to the Company if those statements do not\nreference, directly or indirectly, the Confidential Information or otherwise violate the terms of this Agreement. Notwithstanding the foregoing, any\nConfidential Information constituting trade secrets of the Company or Anchor Bank (as defined in 18 U.S.C. § 1839(3)) shall be kept confidential in\naccordance with the obligations of this Non-Disclosure Agreement for such longer time as such information constitutes a trade secret of the\nCompany or Anchor Bank. The invalidity or unenforceability of any provision of this Non-Disclosure Agreement shall not affect the validity or\nenforceability of any other provision hereof.\n10.\nAll Confidential Information shall remain the property of the Company or Anchor Bank and neither the Director, any Director\nRepresentative or Lawson shall by virtue of any disclosure of or use of any Confidential Information acquire any rights with respect thereto, all of\nwhich rights (including all intellectual property rights) shall remain exclusively with the Company or Anchor Bank. Upon the request of the\nCompany at any time, the Director and Lawson will, and will cause any Director Representative to, promptly return to the Company or destroy all\nhard copies of the Confidential Information and use reasonable efforts to permanently erase or delete all electronic copies of the Confidential\nInformation in the possession or control of the Director, any Director Representative or Lawson. Notwithstanding anything to the\nExhibit A-4\ncontrary contained in this paragraph, the Director, Lawson and any Director Representative shall be permitted to retain such Confidential\nInformation as is necessary to enable them to comply with any applicable document retention requirements under applicable law or regulation and to\nretain any computer records and computer files containing any Confidential Information if required pursuant to their respective current automatic\narchiving and backup procedures; provided, however, that such retention shall be solely for legal, regulatory or archival purposes, as the case may\nbe.\n11.\nUnless and until any substitute director appointed in accordance with Section 1 of the Standstill Agreement executes a joinder to\nthis Non-Disclosure Agreement and agrees to be bound by the terms hereof applicable to the Director, Lawson shall not be permitted to discuss\nConfidential Information with, or obtain Confidential Information from, such substitute director.\nAcceptance of the above terms shall be indicated by having this Non-Disclosure Agreement countersigned by the Director and Lawson.\nSincerely,\nANCHOR BANCORP\nBy:\n/s/Jerald L. Shaw\nName: Jerald L. Shaw\nTitle: President and Chief Executive Officer\nAcknowledged and agreed as of the\ndate first written above:\n/s/Varonica S. Ragan\nVaronica S. Ragan, as Director\n/s/Joel S. Lawson IV\nJoel S. Lawson IV\n[Signature Page to Non-Disclosure Agreement]\nExhibit A-5 Exhibit A\nNon-Disclosure Agreement\nDecember 8, 2015\nReference is made to the Standstill Agreement, dated December 8, 2015 (the “Standstill Agreement”), by and among Anchor Bancorp\n(the “Company”), Varonica S. Ragan (the “Director”) and Joel S. Lawson IV (“Lawson”). Capitalized terms used but not defined herein shall have\nthe meanings ascribed to them in the Standstill Agreement, and the rules of interpretation set forth in Section 7 of the Standstill Agreement shall\napply to this Non-Disclosure Agreement mutatis mutandis.\n1. The Director may be provided certain information and data in connection with her serving as a director of the Company or\nAnchor Bank that the Company or Anchor Bank wishes to keep confidential, including information (whether furnished in writing or electronic\nformat or orally) regarding the Company’s and Anchor Bank’s governance, board of directors, management, plans, strategies, business, finances or\noperations and information that the Company or Anchor Bank has obtained from third parties and with respect to which the Company or Anchor\nBank is obligated to maintain confidentiality (collectively, “Confidential Information). For the avoidance of doubt, Confidential Information also\nincludes all information regarding the operations, procedures, strategies, plans and decisions of the Strategy Committee of the Company’s Board of\nDirectors. Except as otherwise permitted in this Non-Disclosure Agreement, the Director will not disclose any Confidential Information in any\nmanner whatsoever or use any Confidential Information other than in connection with serving as a director of the Company or Anchor Bank\nwithout, in each instance, securing the prior written consent of the Company (acting through a resolution of a majority of the Company’s directors).\n2. Except as set forth in this Section 2, this Non-Disclosure Agreement shall not prevent the Director from privately disclosing\nConfidential Information to (i) officers, directors, accountants and counsel for the Company or Anchor Bank, (ii) the Director’s legal counsel or\nlegal counsel to Lawson (each a “Director Representative” and collectively, the “Director Representatives”) who needs to know such information for\nthe sole purpose of advising the Director on her actions as a director of the Company or Anchor Bank or advising the Director or Lawson with\nrespect to each of their respective investments in the Company, as applicable, or (iii) Lawson. Notwithstanding the foregoing, it is understood and\nagreed that the Director will not disclose any information that the Director learns or obtains in her capacity as a director of the Company or Anchor\nBank to any Director Representative or Lawson to the extent such disclosure would be reasonably likely to constitute a breach of the Director’s\nfiduciary duties to the Company or Anchor Bank or a waiver of the attorney-client privilege between the Company or Anchor Bank and its counsel\nor the Company’s or Anchor Bank’s attorney work product privilege. The Director also acknowledges and agrees that she will not disclose, and is\nprohibited by law and regulation from disclosing, to any Director Representative or Lawson any reports of examination or other confidential\nsupervisory information of any bank regulatory authority, including the Board of Governors of the Federal Reserve System, the Federal Reserve\nBank of San Francisco, the Washington Department of Financial Institutions or the Federal Deposit Insurance Corporation. Any Director\nRepresentative shall only be provided Confidential\nExhibit A-1\nInformation to the extent that such Director Representative is informed of the confidential nature of the Confidential Information and agrees or is\notherwise obligated to keep such information confidential and to restrict the use of such confidential information in accordance with the terms of this\nNon-Disclosure Agreement. Lawson agrees to keep confidential the Confidential Information and to restrict the use of such Confidential\nInformation in accordance with the terms of this Non-Disclosure Agreement, to be bound by this Non-Disclosure Agreement on the same terms as\nthe Director by countersigning this Non-Disclosure Agreement and not to use any Confidential Information in a manner that may be detrimental to\nthe Company or its subsidiaries, including Anchor Bank, except as permitted by the terms of this Non-Disclosure Agreement. The Director and\nLawson shall be severally responsible for any breach of this Agreement by the Director, Lawson or any of their respective representatives.\n3. The term “Confidential Information” shall not include information that (a) is at the time of disclosure or becomes generally\navailable to the public other than as a result of a disclosure by the Director, a Director Representative or Lawson in violation of the terms of this\nNon-Disclosure Agreement; (b) was, prior to disclosure by the Company or Anchor Bank, already in the possession of the Director, a Director\nRepresentative or Lawson; provided that the source of such information was, to such person’s knowledge, not bound by a confidentiality agreement\nwith, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or Anchor Bank, at the time such information was\ndisclosed to such person; (c) becomes available to the Director, a Director Representative or Lawson on a non-confidential basis from a source other\nthan the Company, an affiliate of the Company (including Anchor Bank) or an agent, representative, attorney, advisor, director, officer or employee\nof the Company or Anchor Bank (collectively, the “Company Representatives”) that is, to such person’s knowledge, not bound by a confidentiality\nagreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or Anchor Bank, and is not, to such person’s\nknowledge, under an obligation to the Company or Anchor Bank not to transmit the information to such person; or (d) was independently developed\nby the Director, a Director Representative or Lawson without reference to or use of the Confidential Information.\n4. The Director is aware, and will advise any Director Representative or Lawson who is informed of the matters that are the subject\nof this Non-Disclosure Agreement, that the Confidential Information may constitute material, non-public information and of the restrictions imposed\nby the United States securities laws on the purchase or sale of securities by any person who is aware of material, non-public information and on the\ncommunication of such information to any other person who may purchase or sell such securities on the basis of such information. The Director,\nLawson or any Director Representative to whom the Director transmits Confidential Information under this Non-Disclosure Agreement will comply\nwith all applicable federal and state securities laws in connection with the purchase or sale, directly or indirectly, of securities of the Company or any\nother entity of which the Director is provided material non-public information in her capacity as a director of the Company or Anchor Bank for as\nlong as the Director, Lawson or any Director Representative are in possession of material non-public information about the Company or such other\nentity. The Company agrees to inform Lawson whenever the trading window applicable to all officers and directors of the Company is\nopen. Further, on the Termination Date (as defined below), the Company shall notify Lawson if the trading window applicable to all officers and\ndirectors of the Company is open. The Company agrees that the Director and Lawson are not restricted by this Non-Disclosure Agreement from\nExhibit A-2\n \nsecurities of the Company so long as neither the Director nor Lawson is in possession of material, non-public information relating to the Company,\nsubject to their individual compliance with all applicable securities laws. The Director, Lawson and the Company acknowledge that none of the\nprovisions hereto shall in any way limit the Director’s or Lawson’s activities in the ordinary course of business if such activities will not violate\napplicable securities laws or the obligations set forth in this Non-Disclosure Agreement.\n5. Each of the Director, Lawson and any Director Representative to whom the Director transmits Confidential Information under\nthis Non-Disclosure Agreement acknowledges, or shall be deemed to acknowledge, that none of the Company, any affiliate of the Company or any\nCompany Representative makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential\nInformation. None of the Company, any affiliate of the Company or any Company Representative shall have any liability to the Director, Lawson or\nany Director Representative hereunder relating to or resulting from the use of the Confidential Information by the Director, Lawson or any Director\nRepresentative or any errors in or omissions from the Confidential Information.\n6. Notwithstanding anything herein to the contrary, in the event that the Director, any Director Representative or Lawson is required\nby applicable law, regulation or legal or judicial process (including without limitation, by deposition, interrogatory, request for documents,\nsubpoena, civil investigative demand or similar process) to disclose any Confidential Information, the Director will give the Company prompt\nwritten notice, to the extent not legally prohibited, of such requirement so that the Company or Anchor Bank may seek an appropriate protective\norder or other remedy, at its sole expense, or waive compliance with the applicable provisions of this Non-Disclosure Agreement. If the Company or\nAnchor Bank seeks a protective order, the Director and Lawson agree to, and shall cause any Director Representative to, provide such cooperation to\nthe extent permitted by law, as the Company or Anchor Bank shall reasonably request and in no event will they oppose action by the Company or\nAnchor Bank to obtain a protective order or other relief to prevent or otherwise narrow the disclosure of Confidential Information or to obtain\nreliable assurance that confidential treatment will be afforded to the Confidential Information. If in the absence of a protective order, the Director,\nany Director Representative or Lawson, based upon the advice of counsel, is legally required to disclose Confidential Information, such person or\nentity may disclose without liability under this Non-Disclosure Agreement such portion of the Confidential Information that counsel advises that the\nDirector, any Director Representative or Lawson is legally required to disclose.\nFor the avoidance of doubt, there shall be no legal requirement applicable to the Director or Lawson to disclose any Confidential\nInformation solely by virtue of the fact that, absent such disclosure, such parties would be prohibited from purchasing, selling, or engaging in\nderivative or other transactions with respect to securities of the Company.\n7. The parties agree that irreparable damage would occur in the event any of the provisions of this Non-Disclosure Agreement were\nnot performed in accordance with the terms hereof and that such damage would not be adequately compensable in monetary damages. Accordingly,\nthe parties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Non-Disclosure Agreement and to enforce specifically\nthe terms and provisions of this Non-Disclosure Agreement exclusively in the State of Washington with a court of competent jurisdiction located in\nThurston County, Washington (the “Washington Courts™), in\nExhibit A-3\naddition to any other remedies at law or in equity, and each party agrees it will not take any action, directly or indirectly, in opposition to the party\nseeking relief on the grounds that any other remedy or relief is available at law or in equity. Each of the parties hereto agrees to waive any bonding\nrequirement under any applicable law, in the case any other party seeks to enforce the terms by way of equitable relief. Furthermore, each of the\nparties hereto irrevocably (a) consents to submit itself to the personal jurisdiction of the Washington Courts in the event any dispute arises out of this\nNon-Disclosure Agreement, (b) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from\nthe Washington Courts, (c) agrees that it shall not bring any action relating to this Non-Disclosure Agreement in any court other than the Washington\nCourts, (d) waives the right to trial by jury, and (d) consents to service of process by the United States Postal Service or reputable overnight mail\ndelivery service, in each case, signature requested, to the address set forth in Section 13 of the Standstill Agreement or as otherwise provided by\napplicable law. THIS NON-DISCLOSURE AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING WITH RESPECT TO\nVALIDITY, INTERPRETATION, EFFECT AND ENFORCEMENT, BY THE LAWS OF THE STATE OF WASHINGTON WITHOUT GIVING\nEFFECT TO THE CHOICE OF LAW PRINCIPLES THEREOF THAT WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS\nOF ANY OTHER JURISDICTION.\n8. This Non-Disclosure Agreement may not be amended except in writing signed by all the parties hereto. No failure or delay by\neither party in exercising any right hereunder or any partial exercise thereof shall operate as a waiver thereof or preclude any other or further\nexercise of any right hereunder.\n9. Unless otherwise agreed in writing between the parties, this Non-Disclosure Agreement shall remain in full force and effect until\none (1) year from the date of this Non-Disclosure Agreement (the “Termination Date”), provided, however, that upon expiration of the Standstill\nPeriod, nothing herein shall preclude Lawson from seeking the election of director candidates or submitting proposals at the Company’s 2016 annual\nmeeting of shareholders, including without limitation, making public or private statements relating to the Company if those statements do not\nreference, directly or indirectly, the Confidential Information or otherwise violate the terms of this Agreement. Notwithstanding the foregoing, any\nConfidential Information constituting trade secrets of the Company or Anchor Bank (as defined in 18 U.S.C. § 1839(3)) shall be kept confidential in\naccordance with the obligations of this Non-Disclosure Agreement for such longer time as such information constitutes a trade secret of the\nCompany or Anchor Bank. The invalidity or unenforceability of any provision of this Non-Disclosure Agreement shall not affect the validity or\nenforceability of any other provision hereof.\n10. All Confidential Information shall remain the property of the Company or Anchor Bank and neither the Director, any Director\nRepresentative or Lawson shall by virtue of any disclosure of or use of any Confidential Information acquire any rights with respect thereto, all of\nwhich rights (including all intellectual property rights) shall remain exclusively with the Company or Anchor Bank. Upon the request of the\nCompany at any time, the Director and Lawson will, and will cause any Director Representative to, promptly return to the Company or destroy all\nhard copies of the Confidential Information and use reasonable efforts to permanently erase or delete all electronic copies of the Confidential\nInformation in the possession or control of the Director, any Director Representative or Lawson. Notwithstanding anything to the\nExhibit A-4\ncontrary contained in this paragraph, the Director, Lawson and any Director Representative shall be permitted to retain such Confidential\nInformation as is necessary to enable them to comply with any applicable document retention requirements under applicable law or regulation and to\nretain any computer records and computer files containing any Confidential Information if required pursuant to their respective current automatic\narchiving and backup procedures; provided, however, that such retention shall be solely for legal, regulatory or archival purposes, as the case may\nbe.\n11. Unless and until any substitute director appointed in accordance with Section 1 of the Standstill Agreement executes a joinder to\nthis Non-Disclosure Agreement and agrees to be bound by the terms hereof applicable to the Director, Lawson shall not be permitted to discuss\nConfidential Information with, or obtain Confidential Information from, such substitute director.\nAcceptance of the above terms shall be indicated by having this Non-Disclosure Agreement countersigned by the Director and Lawson.\nSincerely,\nANCHOR BANCORP\nBy: [s/Jerald L. Shaw\nName: Jerald L. Shaw\nTitle: President and Chief Executive Officer\nAcknowledged and agreed as of the\ndate first written above:\n/s/Varonica S. Ragan\nVaronica S. Ragan, as Director\n/s/Joel S. Lawson IV\nJoel S. Lawson IV\n[Signature Page to Non-Disclosure Agreement]\nExhibit A-5 Exhibit A\nNon-Disclosure Agreement\nDecember 8, 2015\nReference is made to the Standstill Agreement, dated December 8, 2015 (the "Standstill Agreement"), by and among Anchor Bancorp\n(the "Company"), Varonica S. Ragan (the "Director") and Joel S. Lawson IV ("Lawson"). Capitalized terms used but not defined herein shall have\nthe meanings ascribed to them in the Standstill Agreement, and the rules of interpretation set forth in Section 7 of the Standstill Agreement shall\napply to this Non-Disclosure Agreement mutatis mutandis.\n1.\nThe Director may be provided certain information and data in connection with her serving as a director of the Company or\nAnchor Bank that the Company or Anchor Bank wishes to keep confidential, including information (whether furnished in writing or electronic\nor orally) regarding the Company's and Anchor Bank's governance, board of directors, management, plans, strategies, business, finances or\nand information that the Company or Anchor Bank has obtained from third parties and with respect to which the Company or Anchor\nobligated\nto\nmaintain\nconfidentiality\n(collectively,\n"Confidential\nInformation").\nFor\nthe\navoidance\nof\ndoubt,\nConfidential\nInformation\nalso\nall information regarding the operations, procedures, strategies, plans and decisions of the Strategy Committee of the Company's Board\nof\nExcept as otherwise permitted in this Non-Disclosure Agreement, the Director will not disclose any Confidential Information in any\nwhatsoever or use any Confidential Information other than in connection with serving as a director of the Company or Anchor Bank\nin each instance, securing the prior written consent of the Company (acting through a resolution of a majority of the Company's directors).\n2.\nExcept as set forth in this Section 2, this Non-Disclosure Agreement shall not prevent the Director from privately disclosing\nConfidential Information to (i) officers, directors, accountants and counsel for the Company or Anchor Bank, (ii) the Director's legal counsel or\nlegal counsel to Lawson (each a "Director Representative" and collectively, the "Director Representatives") who needs to know such information for\nthe sole purpose of advising the Director on her actions as a director of the Company or Anchor Bank or advising the Director or Lawson\nwith\nrespect to each of their respective investments in the Company, as applicable, or (iii) Lawson. Notwithstanding the foregoing, it is understood and\nagreed that the Director will not disclose any information that the Director learns or obtains in her capacity as a director of the Company or Anchor\nBank\nto\nany\nDirector\nRepresentative\nor\nLawson\nto\nthe\nextent\nsuch\ndisclosure\nwould\nbe\nreasonably\nlikely\nto\nconstitute\na\nbreach\nof\nthe\nDirector's\nfiduciary duties to the Company or Anchor Bank or a waiver of the attorney-client privilege between the Company or Anchor Bank and its counsel\nor the Company's or Anchor Bank's attorney work product privilege. The Director also acknowledges and agrees that she will not disclose, and is\nprohibited by law and regulation from disclosing, to any Director Representative or Lawson any reports of examination or other confidentia\nsupervisory information of any bank regulatory authority, including the Board of Governors of the Federal Reserve System, the Federal Reserve\nBank of San Francisco, the Washington Department of Financial Institutions or the Federal Deposit Insurance Corporation. Any Director\nRepresentative shall only be provided Confidential\nExhibit A-1\nInformation to the extent that such Director Representative is informed of the confidential nature of the Confidential Information and agrees\nor\nis\notherwise obligated to keep such information confidential and to restrict the use of such confidential information in accordance with the terms of this\nNon-Disclosure Agreement. Lawson agrees to keep confidential the Confidential Information and to restrict the use of such Confidential\nInformation in accordance with the terms of this Non-Disclosure Agreement, to be bound by this Non-Disclosure Agreement on the same terms as\nthe Director by countersigning this Non-Disclosure Agreement and not to use any Confidential Information in a manner that may be detrimental to\nthe Company or its subsidiaries, including Anchor Bank, except as permitted by the terms of this Non-Disclosure Agreement. The Director and\nLawson shall be severally responsible for any breach of this Agreement by the Director, Lawson or any of their respective representatives.\n3.\nThe term "Confidential Information" shall not include information that (a) is at the time of disclosure or becomes generally\navailable to the public other than as a result of a disclosure by the Director, a Director Representative or Lawson in violation of the terms of this\nNon-Disclosure Agreement; (b) was, prior to disclosure by the Company or Anchor Bank, already in the possession of the Director, a Director\nRepresentative or Lawson; provided that the source of such information was, to such person's knowledge, not bound by a confidentiality agreement\nwith, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or Anchor Bank, at the time such information was\ndisclosed to such person; (c) becomes available to the Director, a Director Representative or Lawson on a non-confidential basis from a source other\nthan the Company, an affiliate of the Company (including Anchor Bank) or an agent, representative, attorney, advisor, director, officer or employee\nof\nthe\nCompany\nor\nAnchor\nBank\n(collectively,\nthe\n"Company\nRepresentatives")\nthat\nis,\nto\nsuch\nperson's\nknowledge,\nnot\nbound\nby\na\nconfidentiality\nagreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or Anchor Bank, and is not, to such person's\nknowledge, under an obligation to the Company or Anchor Bank not to transmit the information to such person; or (d) was independently developed\nby the Director, a Director Representative or Lawson without reference to or use of the Confidential Information.\n4.\nThe Director is aware, and will advise any Director Representative or Lawson who is informed of the matters that are the subject\nof this Non-Disclosure Agreement, that the Confidential Information may constitute material, non-public information and of the restrictions imposed\nby the United States securities laws on the purchase or sale of securities by any person who is aware of material, non-public information and on the\ncommunication of such information to any other person who may purchase or sell such securities on the basis of such information. The Director\nLawson or any Director Representative to whom the Director transmits Confidential Information under this Non-Disclosure Agreement will\ncomply\nwith all applicable federal and state securities laws in connection with the purchase or sale, directly or indirectly, of securities of the Company or any\nother entity of which the Director is provided material non-public information in her capacity as a director of the Company or Anchor Bank\nfor\nas\nlong\nas\nthe\nDirector,\nLawson\nor\nany\nDirector\nRepresentative\nare\nin\npossession\nof\nmaterial\nnon-public\ninformation\nabout\nthe\nCompany\nor\nsuch\nother\nentity. The Company agrees to inform Lawson whenever the trading window applicable to all officers and directors of the Company is\nopen. Further, on the Termination Date (as defined below), the Company shall notify Lawson if the trading window applicable to all officers and\ndirectors of the Company is open. The Company agrees that the Director and Lawson are not restricted by this Non-Disclosure Agreement from\nExhibit A-2\nsecurities of the Company so long as neither the Director nor Lawson is in possession of material, non-public information relating to the Company,\nsubject to their individual compliance with all applicable securities laws. The Director, Lawson and the Company acknowledge that none of the\nprovisions hereto shall in any way limit the Director's or Lawson's activities in the ordinary course of business if such activities will not violate\napplicable securities laws or the obligations set forth in this Non-Disclosure Agreement.\n5. Each of the Director, Lawson and any Director Representative to whom the Director transmits Confidential Information under\nthis Non-Disclosure Agreement acknowledges, or shall be deemed to acknowledge, that none of the Company, any affiliate of the Company or any\nCompany Representative makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential\nInformation. None of the Company, any affiliate of the Company or any Company Representative shall have any liability to the Director, Lawson or\nany Director Representative hereunder relating to or resulting from the use of the Confidential Information by the Director, Lawson or any Director\nRepresentative or any errors in or omissions from the Confidential Information.\n6.\nNotwithstanding anything herein to the contrary, in the event that the Director, any Director Representative or Lawson is required\nby applicable law, regulation or legal or judicial process (including without limitation, by deposition, interrogatory, request for documents,\nsubpoena, civil investigative demand or similar process) to disclose any Confidential Information, the Director will give the Company prompt\nwritten\nnotice,\nto\nthe\nextent\nnot\nlegally\nprohibited,\nof\nsuch\nrequirement\nso\nthat\nthe\nCompany\nor\nAnchor\nBank\nmay\nseek\nan\nappropriate\nprotective\norder or other remedy, at its sole expense, or waive compliance with the applicable provisions of this Non-Disclosure Agreement. If the Company or\nAnchor Bank seeks a protective order, the Director and Lawson agree to, and shall cause any Director Representative to, provide such cooperation\nto\nthe\nextent permitted by law, as the Company or Anchor Bank shall reasonably request and in no event will they oppose action by the Company or\nAnchor Bank to obtain a protective order or other relief to prevent or otherwise narrow the disclosure of Confidential Information or to obtain\nreliable assurance that confidential treatment will be afforded to the Confidential Information. If in the absence of a protective order, the Director,\nany Director Representative or Lawson, based upon the advice of counsel, is legally required to disclose Confidential Information, such person or\nentity may disclose without liability under this Non-Disclosure Agreement such portion of the Confidential Information that counsel advises that\nthe\nDirector, any Director Representative or Lawson is legally required to disclose.\nFor the avoidance of doubt, there shall be no legal requirement applicable to the Director or Lawson to disclose any Confidentia\nInformation solely by virtue of the fact that, absent such disclosure, such parties would be prohibited from purchasing, selling, or engaging\nin\nderivative or other transactions with respect to securities of the Company.\n7.\nThe parties agree that irreparable damage would occur in the event any of the provisions of this Non-Disclosure Agreement were\nnot performed in accordance with the terms hereof and that such damage would not be adequately compensable in monetary damages. Accordingly,\nthe parties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Non-Disclosure Agreement and to enforce specifically\nthe terms and provisions of this Non-Disclosure Agreement exclusively in the State of Washington with a court of competent jurisdiction located in\nThurston County, Washington (the "Washington Courts"), in\nExhibit A-3\naddition to any other remedies at law or in equity, and each party agrees it will not take any action, directly or indirectly, in opposition to the party\nseeking relief on the grounds that any other remedy or relief is available at law or in equity. Each of the parties hereto agrees to waive any bonding\nrequirement under any applicable law, in the case any other party seeks to enforce the terms by way of equitable relief. Furthermore, each of the\nparties hereto irrevocably (a) consents to submit itself to the personal jurisdiction of the Washington Courts in the event any dispute arises out of this\nNon-Disclosure Agreement, (b) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from\nthe Washington Courts, (c) agrees that it shall not bring any action relating to this Non-Disclosure Agreement in any court other than the Washington\nCourts, (d) waives the right to trial by jury, and (d) consents to service of process by the United States Postal Service or reputable overnight mail\ndelivery service, in each case, signature requested, to the address set forth in Section 13 of the Standstill Agreement or as otherwise provided\nby\napplicable law. THIS NON-DISCLOSURE AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING WITH RESPECT TO\nVALIDITY, INTERPRETATION, EFFECT AND ENFORCEMENT, BY THE LAWS OF THE STATE OF WASHINGTON WITHOUT GIVING\nEFFECT TO THE CHOICE OF LAW PRINCIPLES THEREOF THAT WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS\nOF ANY OTHER JURISDICTION.\n8.\nThis Non-Disclosure Agreement may not be amended except in writing signed by all the parties hereto. No failure or delay by\neither party in exercising any right hereunder or any partial exercise thereof shall operate as a waiver thereof or preclude any other or further\nexercise of any right hereunder.\n9.\nUnless otherwise agreed in writing between the parties, this Non-Disclosure Agreement shall remain in full force and effect until\none (1) year from the date of this Non-Disclosure Agreement (the "Termination Date"), provided, however, that upon expiration of the Standstill\nPeriod, nothing herein shall preclude Lawson from seeking the election of director candidates or submitting proposals at the Company's 2016 annua\nmeeting of shareholders, including without limitation, making public or private statements relating to the Company if those statements do not\nreference,\ndirectly or indirectly, the Confidential Information or otherwise violate the terms of this Agreement. Notwithstanding the foregoing,\nany\nConfidential Information constituting trade secrets of the Company or Anchor Bank (as defined in 18 U.S.C. 8 1839(3)) shall be kept confidential in\naccordance with the obligations of this Non-Disclosure Agreement for such longer time as such information constitutes a trade secret of the\nCompany or Anchor Bank. The invalidity or unenforceability of any provision of this Non-Disclosure Agreement shall not affect the validity or\nenforceability of any other provision hereof.\n10.\nAll\nConfidential Information shall remain the property of the Company or Anchor Bank and neither the Director, any\nDirector\nRepresentative or Lawson shall by virtue of any disclosure of or use of any Confidential Information acquire any rights with respect thereto, all of\nwhich rights (including all intellectual property rights) shall remain exclusively with the Company or Anchor Bank. Upon the request of\nthe\nCompany at any time, the Director and Lawson will, and will cause any Director Representative to, promptly return to the Company or destroy all\nhard copies of the Confidential Information and use reasonable efforts to permanently erase or delete all electronic copies of the Confidentia\nInformation in the possession or control of the Director, any Director Representative or Lawson. Notwithstanding anything to the\nExhibit A-4\ncontrary contained in this paragraph, the Director, Lawson and any Director Representative shall be permitted to retain such Confidential\nInformation as is necessary to enable them to comply with any applicable document retention requirements under applicable law or regulation and to\nretain any computer records and computer files containing any Confidential Information if required pursuant to their respective current automatic\narchiving and backup procedures; provided, however, that such retention shall be solely for legal, regulatory or archival purposes, as the case may\nbe.\n11. Unless and until any substitute director appointed in accordance with Section 1 of the Standstill Agreement executes a joinder to\nthis Non-Disclosure Agreement and agrees to be bound by the terms hereof applicable to the Director, Lawson shall not be permitted to discuss\nConfidential Information with, or obtain Confidential Information from, such substitute director.\nAcceptance of the above terms shall be indicated by having this Non-Disclosure Agreement countersigned by the Director and Lawson.\nSincerely,\nANCHOR BANCORP\nBy:\n/s/Jerald L. Shaw\nName: Jerald L. Shaw\nTitle: President and Chief Executive Officer\nAcknowledged and agreed as of the\ndate first written above:\n/s/Varonica S. Ragan\nVaronica S. Ragan, as Director\n/s/Joel S. Lawson IV\nJoel S. Lawson IV\n[Signature Page to Non-Disclosure Agreement]\nExhibit A-5 Exhibit A\nNon-Disclosure Agreement\nDecember 8, 2015\nReference is made to the Standstill Agreement, dated December 8, 2015 (the “Standstill Agreement”), by and among Anchor Bancorp\n(the “Company”), Varonica S. Ragan (the “Director”) and Joel S. Lawson IV (“Lawson”). Capitalized terms used but not defined herein shall have\nthe meanings ascribed to them in the Standstill Agreement, and the rules of interpretation set forth in Section 7 of the Standstill Agreement shall\napply to this Non-Disclosure Agreement mutatis mutandis.\n1.\nThe Director may be provided certain information and data in connection with her serving as a director of the Company or\nAnchor Bank that the Company or Anchor Bank wishes to keep confidential, including information (whether furnished in writing or electronic\nformat or orally) regarding the Company’s and Anchor Bank’s governance, board of directors, management, plans, strategies, business, finances or\noperations and information that the Company or Anchor Bank has obtained from third parties and with respect to which the Company or Anchor\nBank is obligated to maintain confidentiality (collectively, “Confidential Information”). For the avoidance of doubt, Confidential Information also\nincludes all information regarding the operations, procedures, strategies, plans and decisions of the Strategy Committee of the Company’s Board of\nDirectors. Except as otherwise permitted in this Non-Disclosure Agreement, the Director will not disclose any Confidential Information in any\nmanner whatsoever or use any Confidential Information other than in connection with serving as a director of the Company or Anchor Bank\nwithout, in each instance, securing the prior written consent of the Company (acting through a resolution of a majority of the Company’s directors).\n2.\nExcept as set forth in this Section 2, this Non-Disclosure Agreement shall not prevent the Director from privately disclosing\nConfidential Information to (i) officers, directors, accountants and counsel for the Company or Anchor Bank, (ii) the Director ’s legal counsel or\nlegal counsel to Lawson (each a “Director Representative” and collectively, the “Director Representatives”) who needs to know such information for\nthe sole purpose of advising the Director on her actions as a director of the Company or Anchor Bank or advising the Director or Lawson with\nrespect to each of their respective investments in the Company, as applicable, or (iii) Lawson. Notwithstanding the foregoing, it is understood and\nagreed that the Director will not disclose any information that the Director learns or obtains in her capacity as a director of the Company or Anchor\nBank to any Director Representative or Lawson to the extent such disclosure would be reasonably likely to constitute a breach of the Director’s\nfiduciary duties to the Company or Anchor Bank or a waiver of the attorney-client privilege between the Company or Anchor Bank and its counsel\nor the Company’s or Anchor Bank’s attorney work product privilege. The Director also acknowledges and agrees that she will not disclose, and is\nprohibited by law and regulation from disclosing, to any Director Representative or Lawson any reports of examination or other confidential\nsupervisory information of any bank regulatory authority, including the Board of Governors of the Federal Reserve System, the Federal Reserve\nBank of San Francisco, the Washington Department of Financial Institutions or the Federal Deposit Insurance Corporation. Any Director\nRepresentative shall only be provided Confidential\nExhibit A-1\nInformation to the extent that such Director Representative is informed of the confidential nature of the Confidential Information and agrees or is\notherwise obligated to keep such information confidential and to restrict the use of such confidential information in accordance with the terms of this\nNon-Disclosure Agreement. Lawson agrees to keep confidential the Confidential Information and to restrict the use of such Confidential\nInformation in accordance with the terms of this Non-Disclosure Agreement, to be bound by this Non-Disclosure Agreement on the same terms as\nthe Director by countersigning this Non-Disclosure Agreement and not to use any Confidential Information in a manner that may be detrimental to\nthe Company or its subsidiaries, including Anchor Bank, except as permitted by the terms of this Non-Disclosure Agreement. The Director and\nLawson shall be severally responsible for any breach of this Agreement by the Director, Lawson or any of their respective representatives.\n3.\nThe term “Confidential Information” shall not include information that (a) is at the time of disclosure or becomes generally\navailable to the public other than as a result of a disclosure by the Director, a Director Representative or Lawson in violation of the terms of this\nNon-Disclosure Agreement; (b) was, prior to disclosure by the Company or Anchor Bank, already in the possession of the Director, a Director\nRepresentative or Lawson; provided that the source of such information was, to such person’s knowledge, not bound by a confidentiality agreement\nwith, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or Anchor Bank, at the time such information was\ndisclosed to such person; (c) becomes available to the Director, a Director Representative or Lawson on a non-confidential basis from a source other\nthan the Company, an affiliate of the Company (including Anchor Bank) or an agent, representative, attorney, advisor, director, officer or employee\nof the Company or Anchor Bank (collectively, the “Company Representatives”) that is, to such person’s knowledge, not bound by a confidentiality\nagreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or Anchor Bank, and is not, to such person’s\nknowledge, under an obligation to the Company or Anchor Bank not to transmit the information to such person; or (d) was independently developed\nby the Director, a Director Representative or Lawson without reference to or use of the Confidential Information.\n4.\nThe Director is aware, and will advise any Director Representative or Lawson who is informed of the matters that are the subject\nof this Non-Disclosure Agreement, that the Confidential Information may constitute material, non-public information and of the restrictions imposed\nby the United States securities laws on the purchase or sale of securities by any person who is aware of material, non-public information and on the\ncommunication of such information to any other person who may purchase or sell such securities on the basis of such information. The Director,\nLawson or any Director Representative to whom the Director transmits Confidential Information under this Non-Disclosure Agreement will comply\nwith all applicable federal and state securities laws in connection with the purchase or sale, directly or indirectly, of securities of the Company or any\nother entity of which the Director is provided material non-public information in her capacity as a director of the Company or Anchor Bank for as\nlong as the Director, Lawson or any Director Representative are in possession of material non-public information about the Company or such other\nentity. The Company agrees to inform Lawson whenever the trading window applicable to all officers and directors of the Company is\nopen. Further, on the Termination Date (as defined below), the Company shall notify Lawson if the trading window applicable to all officers and\ndirectors of the Company is open. The Company agrees that the Director and Lawson are not restricted by this Non-Disclosure Agreement from\nExhibit A-2\nsecurities of the Company so long as neither the Director nor Lawson is in possession of material, non-public information relating to the Company,\nsubject to their individual compliance with all applicable securities laws. The Director, Lawson and the Company acknowledge that none of the\nprovisions hereto shall in any way limit the Director ’s or Lawson’s activities in the ordinary course of business if such activities will not violate\napplicable securities laws or the obligations set forth in this Non-Disclosure Agreement.\n5.\nEach of the Director, Lawson and any Director Representative to whom the Director transmits Confidential Information under\nthis Non-Disclosure Agreement acknowledges, or shall be deemed to acknowledge, that none of the Company, any affiliate of the Company or any\nCompany Representative makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential\nInformation. None of the Company, any affiliate of the Company or any Company Representative shall have any liability to the Director, Lawson or\nany Director Representative hereunder relating to or resulting from the use of the Confidential Information by the Director, Lawson or any Director\nRepresentative or any errors in or omissions from the Confidential Information.\n6.\nNotwithstanding anything herein to the contrary, in the event that the Director, any Director Representative or Lawson is required\nby applicable law, regulation or legal or judicial process (including without limitation, by deposition, interrogatory, request for documents,\nsubpoena, civil investigative demand or similar process) to disclose any Confidential Information, the Director will give the Company prompt\nwritten notice, to the extent not legally prohibited, of such requirement so that the Company or Anchor Bank may seek an appropriate protective\norder or other remedy, at its sole expense, or waive compliance with the applicable provisions of this Non-Disclosure Agreement. If the Company or\nAnchor Bank seeks a protective order, the Director and Lawson agree to, and shall cause any Director Representative to, provide such cooperation to\nthe extent permitted by law, as the Company or Anchor Bank shall reasonably request and in no event will they oppose action by the Company or\nAnchor Bank to obtain a protective order or other relief to prevent or otherwise narrow the disclosure of Confidential Information or to obtain\nreliable assurance that confidential treatment will be afforded to the Confidential Information. If in the absence of a protective order, the Director,\nany Director Representative or Lawson, based upon the advice of counsel, is legally required to disclose Confidential Information, such person or\nentity may disclose without liability under this Non-Disclosure Agreement such portion of the Confidential Information that counsel advises that the\nDirector, any Director Representative or Lawson is legally required to disclose.\nFor the avoidance of doubt, there shall be no legal requirement applicable to the Director or Lawson to disclose any Confidential\nInformation solely by virtue of the fact that, absent such disclosure, such parties would be prohibited from purchasing, selling, or engaging in\nderivative or other transactions with respect to securities of the Company.\n7.\nThe parties agree that irreparable damage would occur in the event any of the provisions of this Non-Disclosure Agreement were\nnot performed in accordance with the terms hereof and that such damage would not be adequately compensable in monetary damages. Accordingly,\nthe parties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Non-Disclosure Agreement and to enforce specifically\nthe terms and provisions of this Non-Disclosure Agreement exclusively in the State of Washington with a court of competent jurisdiction located in\nThurston County, Washington (the “Washington Courts”), in\nExhibit A-3\naddition to any other remedies at law or in equity, and each party agrees it will not take any action, directly or indirectly, in opposition to the party\nseeking relief on the grounds that any other remedy or relief is available at law or in equity. Each of the parties hereto agrees to waive any bonding\nrequirement under any applicable law, in the case any other party seeks to enforce the terms by way of equitable relief. Furthermore, each of the\nparties hereto irrevocably (a) consents to submit itself to the personal jurisdiction of the Washington Courts in the event any dispute arises out of this\nNon-Disclosure Agreement, (b) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from\nthe Washington Courts, (c) agrees that it shall not bring any action relating to this Non-Disclosure Agreement in any court other than the Washington\nCourts, (d) waives the right to trial by jury, and (d) consents to service of process by the United States Postal Service or reputable overnight mail\ndelivery service, in each case, signature requested, to the address set forth in Section 13 of the Standstill Agreement or as otherwise provided by\napplicable law. THIS NON-DISCLOSURE AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING WITH RESPECT TO\nVALIDITY, INTERPRETATION, EFFECT AND ENFORCEMENT, BY THE LAWS OF THE STATE OF WASHINGTON WITHOUT GIVING\nEFFECT TO THE CHOICE OF LAW PRINCIPLES THEREOF THAT WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS\nOF ANY OTHER JURISDICTION.\n8.\nThis Non-Disclosure Agreement may not be amended except in writing signed by all the parties hereto. No failure or delay by\neither party in exercising any right hereunder or any partial exercise thereof shall operate as a waiver thereof or preclude any other or further\nexercise of any right hereunder.\n9.\nUnless otherwise agreed in writing between the parties, this Non-Disclosure Agreement shall remain in full force and effect until\none (1) year from the date of this Non-Disclosure Agreement (the “Termination Date”), provided, however, that upon expiration of the Standstill\nPeriod, nothing herein shall preclude Lawson from seeking the election of director candidates or submitting proposals at the Company’s 2016 annual\nmeeting of shareholders, including without limitation, making public or private statements relating to the Company if those statements do not\nreference, directly or indirectly, the Confidential Information or otherwise violate the terms of this Agreement. Notwithstanding the foregoing, any\nConfidential Information constituting trade secrets of the Company or Anchor Bank (as defined in 18 U.S.C. § 1839(3)) shall be kept confidential in\naccordance with the obligations of this Non-Disclosure Agreement for such longer time as such information constitutes a trade secret of the\nCompany or Anchor Bank. The invalidity or unenforceability of any provision of this Non-Disclosure Agreement shall not affect the validity or\nenforceability of any other provision hereof.\n10.\nAll Confidential Information shall remain the property of the Company or Anchor Bank and neither the Director, any Director\nRepresentative or Lawson shall by virtue of any disclosure of or use of any Confidential Information acquire any rights with respect thereto, all of\nwhich rights (including all intellectual property rights) shall remain exclusively with the Company or Anchor Bank. Upon the request of the\nCompany at any time, the Director and Lawson will, and will cause any Director Representative to, promptly return to the Company or destroy all\nhard copies of the Confidential Information and use reasonable efforts to permanently erase or delete all electronic copies of the Confidential\nInformation in the possession or control of the Director, any Director Representative or Lawson. Notwithstanding anything to the\nExhibit A-4\ncontrary contained in this paragraph, the Director, Lawson and any Director Representative shall be permitted to retain such Confidential\nInformation as is necessary to enable them to comply with any applicable document retention requirements under applicable law or regulation and to\nretain any computer records and computer files containing any Confidential Information if required pursuant to their respective current automatic\narchiving and backup procedures; provided, however, that such retention shall be solely for legal, regulatory or archival purposes, as the case may\nbe.\n11.\nUnless and until any substitute director appointed in accordance with Section 1 of the Standstill Agreement executes a joinder to\nthis Non-Disclosure Agreement and agrees to be bound by the terms hereof applicable to the Director, Lawson shall not be permitted to discuss\nConfidential Information with, or obtain Confidential Information from, such substitute director.\nAcceptance of the above terms shall be indicated by having this Non-Disclosure Agreement countersigned by the Director and Lawson.\nSincerely,\nANCHOR BANCORP\nBy:\n/s/Jerald L. Shaw\nName: Jerald L. Shaw\nTitle: President and Chief Executive Officer\nAcknowledged and agreed as of the\ndate first written above:\n/s/Varonica S. Ragan\nVaronica S. Ragan, as Director\n/s/Joel S. Lawson IV\nJoel S. Lawson IV\n[Signature Page to Non-Disclosure Agreement]\nExhibit A-5 d55dce3f2401b0c4b66618c7d5f292f5.pdf effective_date jurisdiction party term EX-10.65 17 dex1065.htm CONFIDENTIALITY, NON-COMPETITION AND NON-SOLICITATION AGREEMENT\nExhibit 10.65\nCONFIDENTIALITY, NON-COMPETITION\nAND NON-SOLICITATION AGREEMENT\nTHIS CONFIDENTIALITY, NON-COMPETITION AND NON-SOLICITATION AGREEMENT (“Agreement”) is entered into this 24th day\nof February, 2005 (the “Effective Date”) by and between Mobile Satellite Ventures (“Company”) and Alexander H. Good (“Executive”), who,\nintending to be legally bound, hereby agree as follows:\n1. Employment and Bonus Payment.\n(a) Duties. The Company hereby references the Executive’s employment agreement dated February 29, 2004. During the period of\nemployment, Executive shall perform well and faithfully such duties for, and render such services to, the Company as are from time to time assigned\nto Executive by the Company.\n2. Restrictive Covenants.\n(a) Non-Solicitation of Employees. Executive hereby covenants and agrees that, during Executive’s employment with the Company and for a\nperiod of one (1) year immediately following the termination of such employment, whether voluntary or involuntary, Executive shall not solicit,\ndirectly or indirectly, any of the Company’s employees for employment with any other person or entity. Executive further agrees that he shall engage\nin no action during this aforementioned one (1) year period that is intended to or that has the effect of interfering with, altering, or disrupting the\nCompany’s relationship with its employees. Executive further agrees that he shall not provide any assistance to any other person or entity in the\nsolicitation or recruitment of the Company’s employees.\n(b) Non-Solicitation of Customers. Executive hereby covenants and agrees that, during Executive’s employment with the Company and for a\nperiod of one (1) year immediately following the termination of such employment, whether voluntary or involuntary, Executive shall not, directly or\nindirectly, on his own behalf or on behalf of any other person or entity, solicit or accept competitive business from, submit competitive proposals to,\nor conduct competitive business with, (i) any customer of the Company that was a customer of the Company during the period of Executive’s\nemployment by the Company; or (ii) any customer or prospective customer of the Company that, during the final two years of Executive’s\nemployment by the Company, Executive had solicited for business or to which Executive had provided services, which services shall be deemed to\ninclude but shall not be limited to those typically provided by executive, management, and marketing employees.\n(c) Non-Competition. Executive hereby covenants and agrees that, during Executive’s employment with the Company and for a period of one\n(1) year immediately following the termination of such employment, whether voluntary or involuntary, Executive shall not, directly or indirectly, in\nany geographic area in which the Company markets its products and/or services in any executive, technical, regulatory, managerial, or marketing\ncapacity or position, become employed by or provide services to any person or entity that provides, markets, sells or distributes products or services\ncompetitive with any planned or development-stage products of the Company, which competitor is either Inmarsat or its affiliates or any other\nprovider, or intended provider, of satellite services with an Ancillary Terrestrial Component.\n3. Confidential and Proprietary Information\n(a) Confidential Information Defined. Executive acknowledges that Executive will be provided access to Company confidential and\nproprietary information and trade secrets and will occupy a position of trust and confidence with respect to the Company’s affairs and business\n(“Company Confidential Information”). Company Confidential Information includes, but is not limited to, information and materials related to\npatentable and unpatentable inventions, computer software and hardware, research, business procedures, marketing plans, customer lists and\nbusiness histories, analyses of\ncustomer information, pricing information, financial data, technical data and/or specifications related to the Company’s products and services, and\nany other information that is not generally known to the public or within the industry in which the Company competes.\n(b) Executive’s Obligations. Executive agrees to take all reasonable steps to preserve the confidential and proprietary nature of Company\nConfidential Information and to prevent the inadvertent or accidental disclosure of Company Confidential Information. Executive agrees that during\nExecutive’s employment with the Company and thereafter, Executive will not use, disclose or transfer any Company Confidential Information other\nthan as authorized by the Company. Executive agrees that Executive will not use in any way other than in the Company’s business any Company\nConfidential Information, including information or material received by the Company from others and intended by the Company to be kept in\nconfidence by its recipients. Executive agrees that Executive will not remove any Company Confidential Information from the Company’s premises\nor make copies of such materials except for use in the Company’s business, and that Executive will return to the Company all Company Confidential\nInformation and copies thereof at any time upon the request of Company. Executive agrees not to retain any tangible or intangible copies of any\nCompany Confidential Information after termination of Executive’s employment for any reason. Executive agrees to maintain and make available to\nthe Company, upon its request, complete and current written records, including but not limited to computer files, photographs, and/or drawings, as\nappropriate, of all Company Confidential Information that Executive has created solely or in conjunction with others during the course of\nExecutive’s employment with the Company. Executive agrees that the obligations of this paragraph shall continue after termination of Executive’s\nemployment.\n(c) Prior Confidential Information. During Executive’s employment with the Company, Executive shall not knowingly use or disclose any\nproprietary information or trade secrets of any former employer or other person or entity intended by such person or entity not to be disclosed to the\nCompany. Executive further agrees that he will not bring onto the Company’s premises any unpublished document or proprietary information\nbelonging to any such former employer, person or entity unless consented to in writing by such employer, person or entity. Executive represents that,\nto the best of his knowledge, his performance of all of the terms of this Agreement and his performance of his duties to the Company will not breach\nany agreement or legal obligation between him and any other employer, person or entity.\n4. Enforcement\n(a) Executive acknowledges that Executive’s services and skills are special and unique, that Executive’s work for the Company will permit\nExecutive to have access to and to become familiar with Company Confidential Information and customers, that the Company would not have\nemployed Executive but for the promises and commitments made in this Agreement, and that the promises and commitments made in this\nAgreement are reasonably necessary to protect the Company’s legitimate business interests, including but not limited to the secrecy of Company\nConfidential Information and the goodwill of its customers. Executive further acknowledges and agrees that Company will provide employee\ntraining specific to the products and services it provides and to information and technology related to such products and that the Company’s\ninvestment in such training and knowledge provides a legitimate business interest for the restrictive covenants contained in this Agreement.\n(b) Executive acknowledges that in the event of a violation of any provision contained in this Agreement, the Company’s business interests\nwill be irreparably injured, the full extent of the Company’s damages will be impossible to ascertain, monetary damages will not be an adequate\nremedy for the Company, and the Company will be entitled to enforce this Agreement by an injunction or other equitable relief without the necessity\nof posting bond or security, which Executive expressly waives. Executive further agrees that the restrictions set forth in Paragraphs 2 and 3 of this\nAgreement shall survive the cancellation of this Agreement unless such cancellation expressly states that the restrictions set forth in those paragraphs\nare also cancelled.\n2\n5. Consideration\nExecutive acknowledges that Executive’s employment and/or continued employment constitutes valid consideration for the promises and\ncommitments made in this Agreement. Executive understands that if he fails to execute this Agreement, Company will decline to hire Executive\nand/or will terminate Executive’s employment. As additional consideration, Executive will be granted access to Company’s confidential information\nand trade secrets, which access Executive would not be provided but for his execution of this Agreement. Executive will also be provided training\nand other product-specific information as additional consideration.\n6. General Terms\n(a) Integration, Governing Law, Severability. The terms of this Agreement shall be governed by the laws of the State of Virginia without regard\nto conflict of laws provisions. The Agreement may not be changed in any respect except by a written agreement signed by both Executive and an\nofficer of Company. If any provision of the agreement is held to be invalid, illegal or unenforceable for any reason, the validity, legality and\nenforceability of the remaining provisions will not in any way be affected or impaired thereby.\n(b) Judicial Limitation. If any provision of this Agreement is determined to be invalid or unenforceable by reason of the extent, duration, or\ngeographical scope thereof, then the Court making such determination may reduce the extent, duration, or geographic scope of that provision so that\nit shall be enforceable to the maximum extent permitted by law.\n(c) Non-Assignment. Executive may not assign his or her rights and obligations without the prior written consent of Company. Subject to the\nforegoing, all covenants and agreements made herein shall bind the parties’ respective successors, assigns, and representatives. Executive expressly\nagrees that his obligations under this Agreement are assignable to Company’s successors and assigns.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the 24th day of February, 2005.\nMOBILE SATELLITE VENTURES\nALEXANDER H. GOOD\nBy:\n/s/ Randy Segal\n/s/ Alexander H. Good\nPrint Name: Randy Segal\nPrint Name: Alexander H. Good\nTitle:\nSVP and General Counsel\n3\nCONFIDENTIALITY, NON-COMPETITION\nAND NON-SOLICITATION AGREEMENT\nAddendum\nIn addition to the consideration recited in Section 5 of the Confidentiality, Non-Competition and Non-Solicitation Agreement, Executive shall\nalso receive bonus payment eligibility for 2005 (with anticipated payment in February 2006) and a new stock option grant in TerreStar Networks\nInc., as approved for grant in consideration of execution of this Agreement, by the Compensation Committee of the Board of Directors at a meeting\nheld on February 11, 2005 and as ratified and approved by the Board of Directors at a meeting held on February 24, 2005.\nMOBILE SATELLITE VENTURES\nALEXANDER H. GOOD\nBy:\n/s/ Randy Segal\n/s/ Alexander H. Good\nPrint Name: Randy Segal\nPrint Name: Alexander H. Good\nTitle:\nSVP and General Counsel\n4 EX-10.65 17 dex1065.htm CONFIDENTIALITY, NON-COMPETITION AND NON-SOLICITATION AGREEMENT\nExhibit 10.65\nCONFIDENTIALITY, NON-COMPETITION\nAND NON-SOLICITATION AGREEMENT\nTHIS CONFIDENTIALITY, NON-COMPETITION AND NON-SOLICITATION AGREEMENT (“Agreement ”) is entered into this 24" day\nof February, 2005 (the “Effective Date”) by and between Mobile Satellite Ventures (“Company”) and Alexander H. Good (“Executive”), who,\nintending to be legally bound, hereby agree as follows:\n1. Employment and Bonus Payment.\n(a) Duties. The Company hereby references the Executive’s employment agreement dated February 29, 2004. During the period of\nemployment, Executive shall perform well and faithfully such duties for, and render such services to, the Company as are from time to time assigned\nto Executive by the Company.\n2. Restrictive Covenants.\n(a) Non-Solicitation of Employees. Executive hereby covenants and agrees that, during Executive’s employment with the Company and for a\nperiod of one (1) year immediately following the termination of such employment, whether voluntary or involuntary, Executive shall not solicit,\ndirectly or indirectly, any of the Company’s employees for employment with any other person or entity. Executive further agrees that he shall engage\nin no action during this aforementioned one (1) year period that is intended to or that has the effect of interfering with, altering, or disrupting the\nCompany’s relationship with its employees. Executive further agrees that he shall not provide any assistance to any other person or entity in the\nsolicitation or recruitment of the Company’s employees.\n(b) Non-Solicitation of Customers. Executive hereby covenants and agrees that, during Executive’s employment with the Company and for a\nperiod of one (1) year immediately following the termination of such employment, whether voluntary or involuntary, Executive shall not, directly or\nindirectly, on his own behalf or on behalf of any other person or entity, solicit or accept competitive business from, submit competitive proposals to,\nor conduct competitive business with, (i) any customer of the Company that was a customer of the Company during the period of Executive’s\nemployment by the Company; or (ii) any customer or prospective customer of the Company that, during the final two years of Executive’s\nemployment by the Company, Executive had solicited for business or to which Executive had provided services, which services shall be deemed to\ninclude but shall not be limited to those typically provided by executive, management, and marketing employees.\n \n(c) Non-Competition. Executive hereby covenants and agrees that, during Executive’s employment with the Company and for a period of one\n(1) year immediately following the termination of such employment, whether voluntary or involuntary, Executive shall not, directly or indirectly, in\nany geographic area in which the Company markets its products and/or services in any executive, technical, regulatory, managerial, or marketing\ncapacity or position, become employed by or provide services to any person or entity that provides, markets, sells or distributes products or services\ncompetitive with any planned or development-stage products of the Company, which competitor is either Inmarsat or its affiliates or any other\nprovider, or intended provider, of satellite services with an Ancillary Terrestrial Component.\n3. Confidential and Proprietary Information\n \n(a) Confidential Information Defined. Executive acknowledges that Executive will be provided access to Company confidential and\nproprietary information and trade secrets and will occupy a position of trust and confidence with respect to the Company’s affairs and business\n(“Company Confidential Information”). Company Confidential Information includes, but is not limited to, information and materials related to\npatentable and unpatentable inventions, computer software and hardware, research, business procedures, marketing plans, customer lists and\nbusiness histories, analyses of\ncustomer information, pricing information, financial data, technical data and/or specifications related to the Company’s products and services, and\nany other information that is not generally known to the public or within the industry in which the Company competes.\n(b) Executive’s Obligations. Executive agrees to take all reasonable steps to preserve the confidential and proprietary nature of Company\nConfidential Information and to prevent the inadvertent or accidental disclosure of Company Confidential Information. Executive agrees that during\nExecutive’s employment with the Company and thereafter, Executive will not use, disclose or transfer any Company Confidential Information other\nthan as authorized by the Company. Executive agrees that Executive will not use in any way other than in the Company’s business any Company\nConfidential Information, including information or material received by the Company from others and intended by the Company to be kept in\nconfidence by its recipients. Executive agrees that Executive will not remove any Company Confidential Information from the Company’s premises\nor make copies of such materials except for use in the Company’s business, and that Executive will return to the Company all Company Confidential\nInformation and copies thereof at any time upon the request of Company. Executive agrees not to retain any tangible or intangible copies of any\nCompany Confidential Information after termination of Executive’s employment for any reason. Executive agrees to maintain and make available to\nthe Company, upon its request, complete and current written records, including but not limited to computer files, photographs, and/or drawings, as\nappropriate, of all Company Confidential Information that Executive has created solely or in conjunction with others during the course of\nExecutive’s employment with the Company. Executive agrees that the obligations of this paragraph shall continue after termination of Executive’s\nemployment.\n(c) Prior Confidential Information. During Executive’s employment with the Company, Executive shall not knowingly use or disclose any\nproprietary information or trade secrets of any former employer or other person or entity intended by such person or entity not to be disclosed to the\nCompany. Executive further agrees that he will not bring onto the Company’s premises any unpublished document or proprietary information\nbelonging to any such former employer, person or entity unless consented to in writing by such employer, person or entity. Executive represents that,\nto the best of his knowledge, his performance of all of the terms of this Agreement and his performance of his duties to the Company will not breach\nany agreement or legal obligation between him and any other employer, person or entity.\n4. Enforcement\n(a) Executive acknowledges that Executive’s services and skills are special and unique, that Executive’s work for the Company will permit\nExecutive to have access to and to become familiar with Company Confidential Information and customers, that the Company would not have\nemployed Executive but for the promises and commitments made in this Agreement, and that the promises and commitments made in this\nAgreement are reasonably necessary to protect the Company’s legitimate business interests, including but not limited to the secrecy of Company\nConfidential Information and the goodwill of its customers. Executive further acknowledges and agrees that Company will provide employee\ntraining specific to the products and services it provides and to information and technology related to such products and that the Company’s\ninvestment in such training and knowledge provides a legitimate business interest for the restrictive covenants contained in this Agreement.\n(b) Executive acknowledges that in the event of a violation of any provision contained in this Agreement, the Company’s business interests\nwill be irreparably injured, the full extent of the Company’s damages will be impossible to ascertain, monetary damages will not be an adequate\nremedy for the Company, and the Company will be entitled to enforce this Agreement by an injunction or other equitable relief without the necessity\nof posting bond or security, which Executive expressly waives. Executive further agrees that the restrictions set forth in Paragraphs 2 and 3 of this\nAgreement shall survive the cancellation of this Agreement unless such cancellation expressly states that the restrictions set forth in those paragraphs\nare also cancelled.\n5. Consideration\nExecutive acknowledges that Executive’s employment and/or continued employment constitutes valid consideration for the promises and\ncommitments made in this Agreement. Executive understands that if he fails to execute this Agreement, Company will decline to hire Executive\nand/or will terminate Executive’s employment. As additional consideration, Executive will be granted access to Company’s confidential information\nand trade secrets, which access Executive would not be provided but for his execution of this Agreement. Executive will also be provided training\nand other product-specific information as additional consideration.\n6. General Terms\n(a) Integration, Governing Law, Severability. The terms of this Agreement shall be governed by the laws of the State of Virginia without regard\nto conflict of laws provisions. The Agreement may not be changed in any respect except by a written agreement signed by both Executive and an\nofficer of Company. If any provision of the agreement is held to be invalid, illegal or unenforceable for any reason, the validity, legality and\nenforceability of the remaining provisions will not in any way be affected or impaired thereby.\n \n(b) Judicial Limitation. If any provision of this Agreement is determined to be invalid or unenforceable by reason of the extent, duration, or\ngeographical scope thereof, then the Court making such determination may reduce the extent, duration, or geographic scope of that provision so that\nit shall be enforceable to the maximum extent permitted by law.\n(c) Non-Assignment. Executive may not assign his or her rights and obligations without the prior written consent of Company. Subject to the\nforegoing, all covenants and agreements made herein shall bind the parties’ respective successors, assigns, and representatives. Executive expressly\nagrees that his obligations under this Agreement are assignable to Company’s successors and assigns.\nIN WITNESS WHEREQF, the parties hereto have executed this Agreement as of the 24" day of February, 2005.\nMOBILE SATELLITE VENTURES ALEXANDER H. GOOD\nBy: /s/ Randy Segal /s/ Alexander H. Good\nPrint Name: Randy Segal Print Name: Alexander H. Good\nTitle: SVP and General Counsel\nCONFIDENTIALITY, NON-COMPETITION\nAND NON-SOLICITATION AGREEMENT\nAddendum\nIn addition to the consideration recited in Section 5 of the Confidentiality, Non-Competition and Non-Solicitation Agreement, Executive shall\nalso receive bonus payment eligibility for 2005 (with anticipated payment in February 2006) and a new stock option grant in TerreStar Networks\nInc., as approved for grant in consideration of execution of this Agreement, by the Compensation Committee of the Board of Directors at a meeting\nheld on February 11, 2005 and as ratified and approved by the Board of Directors at a meeting held on February 24, 2005.\nMOBILE SATELLITE VENTURES ALEXANDER H. GOOD\nBy: /s/ Randy Segal /s/ Alexander H. Good\nPrint Name: Randy Segal Print Name: Alexander H. Good\nTitle: SVP and General Counsel EX-10.65 17 dex 1065.htm CONFIDENTIALITY, NON-COMPETITION AND NON-SOLICITATION AGREEMENT\nExhibit 10.65\nCONFIDENTIALITY,. NON-COMPETITION\nAND NON-SOLICITATION AGREEMENT\nTHIS CONFIDENTIALITY, NON-COMPETITION AND NON-SOLICITATION AGREEMENT ("Agreement" is entered into this 24th day\nof February, 2005 (the "Effective Date") by and between Mobile Satellite Ventures ("Company") and Alexander H. Good ("Executive"), who,\nintending to be legally bound, hereby agree as follows:\n1.\nEmployment and Bonus Payment.\n(a) Duties. The Company hereby references the Executive's employment agreement dated February 29, 2004. During the period of\nemployment, Executive shall perform well and faithfully such duties for, and render such services to, the Company as are from time to time assigned\nto Executive by the Company.\n2.\nRestrictive Covenants.\n(a) Non-Solicitation of Employees. Executive hereby covenants and agrees that, during Executive's employment with the Company and for a\nperiod of one (1) year immediately following the termination of such employment, whether voluntary or involuntary, Executive shall not solicit,\ndirectly or indirectly, any of the Company's employees for employment with any other person or entity. Executive further agrees that he shall engage\nin no action during this aforementioned one (1) year period that is intended to or that has the effect of interfering with, altering, or disrupting the\nCompany's relationship with its employees. Executive further agrees that he shall not provide any assistance to any other person or entity in the\nsolicitation or recruitment of the Company's employees.\n(b) Non-Solicitation of Customers. Executive hereby covenants and agrees that, during Executive's employment with the Company and for\na\nperiod of one (1) year immediately following the termination of such employment, whether voluntary or involuntary, Executive shall not, directly or\nindirectly, on his own behalf or on behalf of any other person or entity, solicit or accept competitive business from, submit competitive proposals to,\nor conduct competitive business with, (i) any customer of the Company that was a customer of the Company during the period of Executive's\nemployment by the Company; or (ii) any customer or prospective customer of the Company that, during the final two years of Executive's\nemployment by the Company, Executive had solicited for business or to which Executive had provided services, which services shall be deemed to\ninclude but shall not be limited to those typically provided by executive, management, and marketing employees.\n(c) Non-Competition. Executive hereby covenants and agrees that, during Executive's employment with the Company and for a period of\none\n(1) year immediately following the termination of such employment, whether voluntary or involuntary, Executive shall not, directly or indirectly, in\nany geographic area in which the Company markets its products and/or services in any executive, technical, regulatory, managerial, or marketing\ncapacity or position, become employed by or provide services to any person or entity that provides, markets, sells or distributes products or services\ncompetitive with any planned or development-stage products of the Company, which competitor is either Inmarsat or its affiliates or any other\nprovider, or intended provider of satellite services with an Ancillary Terrestrial Component.\n3.\nConfidential and Proprietary. Information\n(a) Confidential Information Defined. Executive acknowledges that Executive will be provided access to Company confidential and\nproprietary information and trade secrets and will occupy a position of trust and confidence with respect to the Company's affairs and business\n("Company Confidential Information"). Company Confidential Information includes, but is not limited to, information and materials related to\npatentable and unpatentable inventions, computer software and hardware, research, business procedures, marketing plans, customer lists and\nbusiness histories, analyses of\ncustomer information, pricing information, financial data, technical data and/or specifications related to the Company's products and services, and\nany other information that is not generally known to the public or within the industry in which the Company competes.\n(b) Executive's Obligations. Executive agrees to take all reasonable steps to preserve the confidential and proprietary nature of Company\nConfidential Information and to prevent the inadvertent or accidental disclosure of Company Confidential Information. Executive agrees that during\nExecutive's employment with the Company and thereafter, Executive will not use, disclose or transfer any Company Confidential Information\nother\nthan as authorized by the Company. Executive agrees that Executive will not use in any way other than in the Company's business any Company\nConfidential Information, including information or material received by the Company from others and intended by the Company to be kept in\nconfidence by its recipients. Executive agrees that Executive will not remove any Company Confidential Information from the Company's premises\nor make copies of such materials except for use in the Company's business, and that Executive will return to the Company all Company Confidential\nInformation and copies thereof at any time upon the request of Company. Executive agrees not to retain any tangible or intangible copies of any\nCompany Confidential Information after termination of Executive's employment for any reason. Executive agrees to maintain and make available\nto\nthe Company, upon its request, complete and current written records, including but not limited to computer files, photographs, and/or drawings, as\nappropriate, of all Company Confidential Information that Executive has created solely or in conjunction with others during the course of\nExecutive's employment with the Company. Executive agrees that the obligations of this paragraph shall continue after termination of Executive's\nemployment.\n(c) Prior Confidential Information. During Executive's employment with the Company, Executive shall not knowingly use or disclose any\nproprietary information or trade secrets of any former employer or other person or entity intended by such person or entity not to be disclosed to the\nCompany. Executive further agrees that he will not bring onto the Company's premises any unpublished document or proprietary information\nbelonging to any such former employer, person or entity unless consented to in writing by such employer, person or entity. Executive represents that,\nto the best of his knowledge, his performance of all of the terms of this Agreement and his performance of his duties to the Company will not breach\nany agreement or legal obligation between him and any other employer, person or entity.\n4. Enforcement\n(a) Executive acknowledges that Executive's services and skills are special and unique, that Executive's work for the Company will permit\nExecutive to have access to and to become familiar with Company Confidential Information and customers, that the Company would not have\nemployed Executive but for the promises and commitments made in this Agreement, and that the promises and commitments made in this\nAgreement are reasonably necessary to protect the Company's legitimate business interests, including but not limited to the secrecy of Company\nConfidential Information and the goodwill of its customers. Executive further acknowledges and agrees that Company will provide employee\ntraining specific to the products and services it provides and to information and technology related to such products and that the Company's\ninvestment in such training and knowledge provides a legitimate business interest for the restrictive covenants contained in this Agreement.\n(b) Executive acknowledges that in the event of a violation of any provision contained in this Agreement, the Company's business interests\nwill be irreparably injured, the full extent of the Company's damages will be impossible to ascertain, monetary damages will not be an adequate\nremedy for the Company, and the Company will be entitled to enforce this Agreement by an injunction or other equitable relief without the necessity\nof posting bond or security, which Executive expressly waives. Executive further agrees that the restrictions set forth in Paragraphs 2 and 3 of this\nAgreement shall survive the cancellation of this Agreement unless such cancellation expressly states that the restrictions set forth in those paragraphs\nare also cancelled.\n2\n5. Consideration\nExecutive acknowledges that Executive's employment and/or continued employment constitutes valid consideration for the promises and\ncommitments made in this Agreement. Executive understands that if he fails to execute this Agreement, Company will decline to hire Executive\nand/or will terminate Executive's employment. As additional consideration, Executive will be granted access to Company's confidential information\nand trade secrets, which access Executive would not be provided but for his execution of this Agreement. Executive will also be provided training\nand other product-specific information as additional consideration.\n6.\nGeneral Terms\n(a) Integration, Governing Law, Severability. The terms of this Agreement shall be governed by the laws of the State of Virginia without regard\nto conflict of laws provisions. The Agreement may not be changed in any respect except by a written agreement signed by both Executive and an\nofficer of Company. If any provision of the agreement is held to be invalid, illegal or unenforceable for any reason, the validity, legality and\nenforceability of the remaining provisions will not in any way be affected or impaired thereby.\n(b) Judicial Limitation. If any provision of this Agreement is determined to be invalid or unenforceable by reason of the extent, duration, or\ngeographical scope thereof, then the Court making such determination may reduce the extent, duration, or geographic scope of that provision SO that\nit shall be enforceable to the maximum extent permitted by law.\n(c) Non-Assignment. Executive may not assign his or her rights and obligations without the prior written consent of Company. Subject to the\nforegoing, all covenants and agreements made herein shall bind the parties' respective successors, assigns, and representatives. Executive expressly\nagrees that his obligations under this Agreement are assignable to Company's successors and assigns.\nIN\nWITNESS WHEREOF, the parties hereto have executed this Agreement as of the 24th day of February, 2005.\nMOBILE SATELLITE VENTURES\nALEXANDER H. GOOD\nBy:\n/s/ Randy Segal\n/s/ Alexander H. Good\nPrint Name: Randy Segal\nPrint Name: Alexander H. Good\nTitle:\nSVP and General Counsel\n3\nCONFIDENTIALITY, NON-COMPETITION\nAND NON-SOLICITATION AGREEMENT\nAddendum\nIn addition to the consideration recited in Section 5 of the Confidentiality, Non-Competition and Non-Solicitation Agreement, Executive shall\nalso receive bonus payment eligibility for 2005 (with anticipated payment in February 2006) and a new stock option grant in TerreStar Networks\nInc., as approved for grant in consideration of execution of this Agreement, by the Compensation Committee of the Board of Directors at a meeting\nheld on February 11, 2005 and as ratified and approved by the Board of Directors at a meeting held on February 24, 2005.\nMOBILE SATELLITE VENTURES\nALEXANDER H. GOOD\nBy:\n/s/ Randy Segal\n/s/ Alexander H. Good\nPrint Name: Randy Segal\nPrint Name: Alexander H. Good\nTitle:\nSVP and General Counsel\n4 EX-10.65 17 dex1065.htm CONFIDENTIALITY, NON-COMPETITION AND NON-SOLICITATION AGREEMENT\nExhibit 10.65\nCONFIDENTIALITY, NON-COMPETITION\nAND NON-SOLICITATION AGREEMENT\nTHIS CONFIDENTIALITY, NON-COMPETITION AND NON-SOLICITATION AGREEMENT (“Agreement”) is entered into this 24th day\nof February, 2005 (the “Effective Date”) by and between Mobile Satellite Ventures (“Company”) and Alexander H. Good (“Executive”), who,\nintending to be legally bound, hereby agree as follows:\n1. Employment and Bonus Payment.\n(a) Duties. The Company hereby references the Executive’s employment agreement dated February 29, 2004. During the period of\nemployment, Executive shall perform well and faithfully such duties for, and render such services to, the Company as are from time to time assigned\nto Executive by the Company.\n2. Restrictive Covenants.\n(a) Non-Solicitation of Employees. Executive hereby covenants and agrees that, during Executive’s employment with the Company and for a\nperiod of one (1) year immediately following the termination of such employment, whether voluntary or involuntary, Executive shall not solicit,\ndirectly or indirectly, any of the Company’s employees for employment with any other person or entity. Executive further agrees that he shall engage\nin no action during this aforementioned one (1) year period that is intended to or that has the effect of interfering with, altering, or disrupting the\nCompany’s relationship with its employees. Executive further agrees that he shall not provide any assistance to any other person or entity in the\nsolicitation or recruitment of the Company’s employees.\n(b) Non-Solicitation of Customers. Executive hereby covenants and agrees that, during Executive’s employment with the Company and for a\nperiod of one (1) year immediately following the termination of such employment, whether voluntary or involuntary, Executive shall not, directly or\nindirectly, on his own behalf or on behalf of any other person or entity, solicit or accept competitive business from, submit competitive proposals to,\nor conduct competitive business with, (i) any customer of the Company that was a customer of the Company during the period of Executive’s\nemployment by the Company; or (ii) any customer or prospective customer of the Company that, during the final two years of Executive’s\nemployment by the Company, Executive had solicited for business or to which Executive had provided services, which services shall be deemed to\ninclude but shall not be limited to those typically provided by executive, management, and marketing employees.\n(c) Non-Competition. Executive hereby covenants and agrees that, during Executive’s employment with the Company and for a period of one\n(1) year immediately following the termination of such employment, whether voluntary or involuntary, Executive shall not, directly or indirectly, in\nany geographic area in which the Company markets its products and/or services in any executive, technical, regulatory, managerial, or marketing\ncapacity or position, become employed by or provide services to any person or entity that provides, markets, sells or distributes products or services\ncompetitive with any planned or development-stage products of the Company, which competitor is either Inmarsat or its affiliates or any other\nprovider, or intended provider, of satellite services with an Ancillary Terrestrial Component.\n3. Confidential and Proprietary Information\n(a) Confidential Information Defined. Executive acknowledges that Executive will be provided access to Company confidential and\nproprietary information and trade secrets and will occupy a position of trust and confidence with respect to the Company’s affairs and business\n(“Company Confidential Information”). Company Confidential Information includes, but is not limited to, information and materials related to\npatentable and unpatentable inventions, computer software and hardware, research, business procedures, marketing plans, customer lists and\nbusiness histories, analyses of\ncustomer information, pricing information, financial data, technical data and/or specifications related to the Company’s products and services, and\nany other information that is not generally known to the public or within the industry in which the Company competes.\n(b) Executive’s Obligations. Executive agrees to take all reasonable steps to preserve the confidential and proprietary nature of Company\nConfidential Information and to prevent the inadvertent or accidental disclosure of Company Confidential Information. Executive agrees that during\nExecutive’s employment with the Company and thereafter, Executive will not use, disclose or transfer any Company Confidential Information other\nthan as authorized by the Company. Executive agrees that Executive will not use in any way other than in the Company’s business any Company\nConfidential Information, including information or material received by the Company from others and intended by the Company to be kept in\nconfidence by its recipients. Executive agrees that Executive will not remove any Company Confidential Information from the Company’s premises\nor make copies of such materials except for use in the Company’s business, and that Executive will return to the Company all Company Confidential\nInformation and copies thereof at any time upon the request of Company. Executive agrees not to retain any tangible or intangible copies of any\nCompany Confidential Information after termination of Executive’s employment for any reason. Executive agrees to maintain and make available to\nthe Company, upon its request, complete and current written records, including but not limited to computer files, photographs, and/or drawings, as\nappropriate, of all Company Confidential Information that Executive has created solely or in conjunction with others during the course of\nExecutive’s employment with the Company. Executive agrees that the obligations of this paragraph shall continue after termination of Executive’s\nemployment.\n(c) Prior Confidential Information. During Executive’s employment with the Company, Executive shall not knowingly use or disclose any\nproprietary information or trade secrets of any former employer or other person or entity intended by such person or entity not to be disclosed to the\nCompany. Executive further agrees that he will not bring onto the Company’s premises any unpublished document or proprietary information\nbelonging to any such former employer, person or entity unless consented to in writing by such employer, person or entity. Executive represents that,\nto the best of his knowledge, his performance of all of the terms of this Agreement and his performance of his duties to the Company will not breach\nany agreement or legal obligation between him and any other employer, person or entity.\n4. Enforcement\n(a) Executive acknowledges that Executive’s services and skills are special and unique, that Executive’s work for the Company will permit\nExecutive to have access to and to become familiar with Company Confidential Information and customers, that the Company would not have\nemployed Executive but for the promises and commitments made in this Agreement, and that the promises and commitments made in this\nAgreement are reasonably necessary to protect the Company’s legitimate business interests, including but not limited to the secrecy of Company\nConfidential Information and the goodwill of its customers. Executive further acknowledges and agrees that Company will provide employee\ntraining specific to the products and services it provides and to information and technology related to such products and that the Company’s\ninvestment in such training and knowledge provides a legitimate business interest for the restrictive covenants contained in this Agreement.\n(b) Executive acknowledges that in the event of a violation of any provision contained in this Agreement, the Company’s business interests\nwill be irreparably injured, the full extent of the Company’s damages will be impossible to ascertain, monetary damages will not be an adequate\nremedy for the Company, and the Company will be entitled to enforce this Agreement by an injunction or other equitable relief without the necessity\nof posting bond or security, which Executive expressly waives. Executive further agrees that the restrictions set forth in Paragraphs 2 and 3 of this\nAgreement shall survive the cancellation of this Agreement unless such cancellation expressly states that the restrictions set forth in those paragraphs\nare also cancelled.\n2\n5. Consideration\nExecutive acknowledges that Executive’s employment and/or continued employment constitutes valid consideration for the promises and\ncommitments made in this Agreement. Executive understands that if he fails to execute this Agreement, Company will decline to hire Executive\nand/or will terminate Executive’s employment. As additional consideration, Executive will be granted access to Company’s confidential information\nand trade secrets, which access Executive would not be provided but for his execution of this Agreement. Executive will also be provided training\nand other product-specific information as additional consideration.\n6. General Terms\n(a) Integration, Governing Law, Severability. The terms of this Agreement shall be governed by the laws of the State of Virginia without regard\nto conflict of laws provisions. The Agreement may not be changed in any respect except by a written agreement signed by both Executive and an\nofficer of Company. If any provision of the agreement is held to be invalid, illegal or unenforceable for any reason, the validity, legality and\nenforceability of the remaining provisions will not in any way be affected or impaired thereby.\n(b) Judicial Limitation. If any provision of this Agreement is determined to be invalid or unenforceable by reason of the extent, duration, or\ngeographical scope thereof, then the Court making such determination may reduce the extent, duration, or geographic scope of that provision so that\nit shall be enforceable to the maximum extent permitted by law.\n(c) Non-Assignment. Executive may not assign his or her rights and obligations without the prior written consent of Company. Subject to the\nforegoing, all covenants and agreements made herein shall bind the parties’ respective successors, assigns, and representatives. Executive expressly\nagrees that his obligations under this Agreement are assignable to Company’s successors and assigns.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the 24th day of February, 2005.\nMOBILE SATELLITE VENTURES\nALEXANDER H. GOOD\nBy:\n/s/ Randy Segal\n/s/ Alexander H. Good\nPrint Name: Randy Segal\nPrint Name: Alexander H. Good\nTitle:\nSVP and General Counsel\n3\nCONFIDENTIALITY, NON-COMPETITION\nAND NON-SOLICITATION AGREEMENT\nAddendum\nIn addition to the consideration recited in Section 5 of the Confidentiality, Non-Competition and Non-Solicitation Agreement, Executive shall\nalso receive bonus payment eligibility for 2005 (with anticipated payment in February 2006) and a new stock option grant in TerreStar Networks\nInc., as approved for grant in consideration of execution of this Agreement, by the Compensation Committee of the Board of Directors at a meeting\nheld on February 11, 2005 and as ratified and approved by the Board of Directors at a meeting held on February 24, 2005.\nMOBILE SATELLITE VENTURES\nALEXANDER H. GOOD\nBy:\n/s/ Randy Segal\n/s/ Alexander H. Good\nPrint Name: Randy Segal\nPrint Name: Alexander H. Good\nTitle:\nSVP and General Counsel\n4 d6f15390ac99f5de8ef919d8df8e5412.pdf effective_date jurisdiction party term EX-99.(D)(6) 16 dex99d6.htm CONFIDENTIALITY AGREEMENT, DATED AS OF DECEMBER 19, 2006,\nBETWEEN PITNEY BOWES\nExhibit (d)(6)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the “Agreement”) is dated and effective as of December 19, 2006 (the “Effective Date”), between MapInfo\nCorporation, a Delaware corporation with its principal office at One Global View, Troy, NY 12866 (“MapInfo”), and Pitney Bowes Inc., a Delaware\ncorporation with its principal office at 1 Elmcroft Road, Stamford, Connecticut 06926 (“PBI”).\nBackground\nA. PBI has requested MapInfo to provide certain information, which is either confidential or proprietary in nature, in connection with PBI’s\nconsideration of a possible negotiated transaction between MapInfo and PBI (the “Transaction”); and in connection with such Transaction, PBI may\nprovide MapInfo with certain information which is either confidential or proprietary in nature.\nB. MapInfo and PBI each desires to protect the confidentiality of the information that it provides and to have the other party take or abstain\nfrom taking certain actions in accordance with the provisions of this Agreement.\nNow, therefore, in consideration of the mutual covenants and promises contained in this Agreement and other good and valuable consideration,\nthe receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:\n1. Definitions.\n(a) Each of MapInfo and PBI is a “Disclosing Party” as to Evaluation Material concerning it that is furnished to the other party and is a\n“Receiving Party” as to Evaluation Material of the other party that is furnished to it.\n(b) “Evaluation Material” means any information concerning Disclosing Party (whether prepared by Disclosing Party, its Representatives\n(as defined herein) or otherwise, and regardless of the form of communication) that is furnished to Receiving Party or any of its Representatives by\nor on behalf of Disclosing Party on or after the date hereof, and any portions of notes, analyses, compilations, studies, interpretations, memoranda,\nreports or other documents (regardless of the form thereof) prepared by Receiving Party or its Representatives which contain, reflect or are based\nupon, in whole or in part, any information that is furnished to Receiving Party or its Representatives pursuant to this Agreement; provided, however,\nthat “Evaluation Material” does not include information concerning Disclosing Party which:\n(i) is or becomes generally available to the public other than as a result of a breach of this Agreement by Receiving Party or its\nRepresentatives;\n(ii) was within Receiving Party’s or any of its Representative’s possession prior to it being furnished to Receiving Party or its\nRepresentatives by or on behalf of\n1\nDisclosing Party pursuant to this Agreement, provided that such information is not subject to another confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, Disclosing Party with respect to such information;\n(iii) becomes available to Receiving Party or any of its Representatives from a source other than Disclosing Party or any of its\nRepresentatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of\nconfidentiality to, Disclosing Party with respect to such information; or\n(iv) is independently developed by Receiving Party or others on its behalf without reference to or reliance upon any confidential\nor proprietary information furnished to Receiving Party or any of its Representatives by or on behalf of Disclosing Party.\n(c) “Representatives” means, with respect to a party, its parents and subsidiaries, and its and their respective directors, officers, affiliates,\nemployees, partners, agents or advisors (including without limitation attorneys, accountants, consultants and investment bankers).\n(d) The term “person” shall be broadly interpreted to include the media and any corporation, company, partnership, joint venture, group,\nlimited liability company, other entity or individual, and the term “affiliate” has the meaning set forth in Rule 12b-2 under the Securities Exchange\nAct of 1934, as amended (such Act, as amended, being referred to herein as the “Exchange Act”).\n2. Use and Disclosure of Evaluation Material.\n(a) Except as otherwise provided in this Agreement, Receiving Party hereby agrees that it and its Representatives shall:\n(i) use the other party’s Evaluation Material solely for the purpose of evaluating, negotiating and implementing a possible\nTransaction;\n(ii) keep the other party’s Evaluation Material confidential in accordance with the provisions of this Agreement; and\n(iii) not disclose any of the other party’s Evaluation Material except in accordance with the provisions of this Agreement;\nprovided, however, that Receiving Party may disclose any Evaluation Material to Receiving Party’s Representatives who need to know such\ninformation for the sole purpose of evaluating, negotiating and implementing a possible Transaction, provided that Receiving Party’s Representatives\nare informed of the confidential nature of such Evaluation Material and agree to use such information solely for the purpose of evaluating,\nnegotiating and implementing a possible Transaction and likewise agree to maintain the confidentiality of such Evaluation Material.\n2\n(b) Except as otherwise provided in this Agreement, neither MapInfo nor PBI nor any of their respective Representatives shall disclose\nto any other person (i) the existence of this Agreement, (ii) the fact that Evaluation Material has been made available by it to the other party or by the\nother party to it, (iii) that discussions are taking place concerning a possible Transaction between the parties, (iv) any of the terms, conditions or\nother facts with respect thereto, or (v) the status of such discussions (collectively, the “Transaction Information”). Without limiting the foregoing,\nReceiving Party agrees that, for a period of eighteen (18) months from the Effective Date, neither it nor its Representatives will enter into any\ndiscussions or any agreement, understanding or arrangement with any person regarding participation by such person or others in a negotiated\ntransaction with Disclosing Party, except that Receiving Party may, with Disclosing Party’s prior written consent, have discussions with other\npersons relating to obtaining debt (but not equity) financing for a negotiated transaction with Disclosing Party from commercial banks or other\ninstitutional sources if the persons with whom Receiving Party has such discussions agree to be bound by the terms of this Agreement.\n(c) Receiving Party shall be liable to Disclosing Party for any use or disclosure by any of Receiving Party’s Representatives of (i) the\nDisclosing Party’s Evaluation Material or (ii) Transaction Information which, if done by Receiving Party itself, would be a breach of this Agreement.\nReceiving Party agrees, at its sole expense, to take reasonable measures to restrain its Representatives from making or allowing to be made\nprohibited or unauthorized uses or disclosures of the Disclosing Party’s Evaluation Material and Transaction Information.\n(d) To the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or\nany other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree\nthat they have a commonality of interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of\nsuch material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is entitled to protection under the attorney-\nclient privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to such protection under these privileges or\ndoctrines, under this Agreement and under the joint defense doctrine.\n3. Legally Required Disclosure.\nIf Receiving Party or any of its Representatives is requested or required (by oral questions, interrogatories, requests for information or\ndocuments in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Disclosing Party’s Evaluation\nMaterial or Transaction Information, Receiving Party shall, except as prohibited by law, provide Disclosing Party with prompt written notice of any\nsuch request or requirement so that Disclosing Party may seek, at Disclosing Party’s expense, a protective order or other remedy and/or waive\ncompliance with the provisions of this Agreement. If Disclosing Party seeks a protective order or other remedy, Receiving Party shall provide such\ncooperation, at Disclosing Party’s expense, as Disclosing Party shall reasonably request. If, in the absence of a protective\n3\norder or other remedy or the receipt by Receiving Party of a waiver from Disclosing Party, Receiving Party or any of its Representatives is\nnonetheless, in the opinion of its legal counsel, legally compelled to disclose Evaluation Material or Transaction Information to any tribunal or other\nentity or else stand liable for contempt or suffer other censure or penalty, Receiving Party or such Representatives may, without liability hereunder,\ndisclose to such tribunal or other entity only that portion of the Disclosing Party’s Evaluation Material or Transaction Information which such\ncounsel advises Receiving Party or such Representatives in writing is legally required to be disclosed, provided that Receiving Party and such\nRepresentatives shall exercise reasonable best efforts, at Disclosing Party’s expense, to minimize the disclosure of the Disclosing Party’s Evaluation\nMaterial or Transaction Information and to preserve the confidentiality thereof. Notwithstanding the foregoing, if Receiving Party is required to\ndisclose Evaluation Material or Transaction Information by law or the rules or regulations of any regulatory authority having jurisdiction over\nReceiving Party or a stock exchange or interdealer quotation system on which Receiving Party’s securities are traded or quoted, Receiving Party may\nmake such disclosure to the extent required (in which case Receiving Party shall use reasonable efforts to give Disclosing Party the opportunity to\ncomment on the planned disclosure).\n4. Return of Evaluation Material.\nAt any time upon the written request of Disclosing Party for any reason or upon the Receiving Party’s determination not to proceed with a\ntransaction with Disclosing Party:\n(a) Receiving Party shall promptly (and in no event later than five (5) business days after such request) return to Disclosing Party or\ndestroy (and certify in writing to Disclosing Party that it has destroyed) all Evaluation Material (and all copies thereof) furnished to Receiving Party\nor its Representatives by or on behalf of Disclosing Party, and shall not retain any copies, extracts or other reproductions (including Evaluation\nMaterial stored in any computer or other electronic storage device) in whole or in part of such material; and\n(b) Receiving Party and its Representatives shall destroy all Evaluation Material prepared by Receiving Party or its Representatives and\nshall not retain any copies, extracts or other reproductions (including Evaluation Material stored in any computer or other electronic storage device)\nin whole or in part of such material, and such destruction shall be certified in writing to Disclosing Party by an authorized officer of Receiving Party\nupon the request of Disclosing Party.\nNotwithstanding the foregoing, one copy of written or other tangible Evaluation Material may be kept by the Receiving Party in a secure\nlocation solely to the extent required to comply with applicable laws, provided that such copy is retained in a segregated area under the exclusive\ncontrol of (i) if MapInfo is the Receiving Party, its general counsel, and (ii) if PBI is the Receiving Party, its Vice President of Corporate\nDevelopment.\nNotwithstanding the return or destruction of Evaluation Material, Receiving Party and its Representatives shall continue to be bound by their\nobligations hereunder.\n4\n5. Term.\nThis Agreement shall apply to all Evaluation Material disclosed prior to the date that is twenty-four (24) months after the Effective Date.\nUnless otherwise expressly stated herein, the obligations set forth in this Agreement shall continue until the third (3rd) anniversary of the date of\ninitial disclosure of such Evaluation Material; provided, however, that if Disclosing Party notifies Receiving Party that any specific Evaluation\nMaterial is subject to a confidentiality obligation owed to a third party on the part of Disclosing Party that extends beyond such third\n(3rd) anniversary, Receiving Party shall abide by the obligations set forth in this Agreement with respect to such Evaluation Material for the term of\nDisclosing Party’s confidentiality obligation applicable to such Evaluation Material.\n6. Nonsolicitation.\nFor a period of eighteen (18) months from the Effective Date, PBI shall not solicit to employ any person who (i) is an officer of MapInfo or\nany of its subsidiaries whose name includes the word MapInfo, or (ii) is employed in any capacity by MapInfo or any of its subsidiaries whose name\nincludes the word MapInfo and with whom Representatives of PBI first came in contact or first identified during the process of considering a\nTransaction; provided, however, that this section shall not prevent PBI or its affiliates from soliciting or hiring a person identified in clause (i) or\n(ii) (a “Covered Person”) if: (1) such Covered Person contacts PBI or its affiliates or Representatives on the Covered Person’s own initiative without\nany direct or indirect solicitation by or encouragement from PBI or its Representatives; (2) the personnel of PBI or its affiliates who solicited or\nhired the Covered Person have no knowledge of any Evaluation Material and none of the personnel of PBI who have knowledge of any Evaluation\nMaterial have actual advance knowledge of such solicitation; (3) such Covered Person responds to a general solicitation of employment not\nspecifically directed toward MapInfo or any of its subsidiaries whose name includes the word MapInfo or particular employees of MapInfo or any of\nits subsidiaries whose name includes the word MapInfo; (4) such Covered Person is brought to PBI’s or one of its affiliate’s attention by an agency,\nsearch firm or other independent third party without direction by PBI or its affiliate to do so; or (5) PBI or one of its affiliates was discussing\nemployment with such Covered Person prior to the Effective Date.\n7. Standstill.\nPBI agrees that, for a period of eighteen (18) months from the Effective Date, unless PBI shall have been specifically invited in writing by\nMapInfo, neither PBI nor any of its affiliates shall in any manner, directly or indirectly:\n(a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way advise, assist or\nencourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, (i) any acquisition\nof any securities (or beneficial ownership thereof) or assets of MapInfo, (ii) any tender or exchange offer, merger or other business combination\ninvolving MapInfo, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to MapInfo, or\n(iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any\nvoting securities of MapInfo;\n5\n(b) form, join or in any way participate in a “group” (as defined under the Exchange Act) with respect to any securities of MapInfo;\n(c) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of\nMapInfo;\n(d) take any action which might force MapInfo to make a public announcement regarding any of the types of matters set forth in\nsubsection (a) above;\n(e) enter into any discussions or arrangements with any person with respect to any of the foregoing; or\n(f) communicate with MapInfo’s stockholders with respect to any of the foregoing.\n8. Trading in Securities.\nPBI and MapInfo each acknowledges that it is aware (and that its Representatives who are apprised of a possible Transaction have been or will\nbe so advised) that applicable securities laws prohibit any person who is aware of material, non-public information about a company obtained\ndirectly or indirectly from that company from purchasing or selling securities of such company or from communicating such information to any\nother person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\n9. No Representations and Warranties; Relationship to Definitive Agreement.\n(a) PBI and MapInfo each understands and acknowledges that: (i) neither the other party nor its affiliates, nor any of the other party’s\nRepresentatives (including, in the case of MapInfo, Jefferies Broadview and its affiliates), nor any of the other party’s or its affiliates’ or its\nRepresentatives’ respective officers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Exchange Act, has\nmade or is making any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material; and (ii) none of\nsuch persons or entities shall have any liability to the other party or any of its Representatives or any other person relating to or resulting from the\nuse of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a definitive\nagreement between the parties, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any\nlegal effect. For purposes of this Agreement, the term “definitive agreement” does not include any executed letter of intent or any other preliminary\nwritten agreement, nor does it include any written or verbal acceptance of any offer or bid made by one party.\n(b) PBI and MapInfo each understands and agrees that no contract or agreement providing for any transaction involving the parties shall\nbe deemed to exist unless and until a definitive agreement has been executed and delivered, and PBI and MapInfo each hereby\n6\nwaives in advance any claims, including without limitation claims for breach of contract, in connection with any transaction between the parties\nunless and until the parties shall have entered into a definitive agreement. PBI and MapInfo each also agrees that unless and until a definitive\nagreement regarding a transaction between the parties has been executed and delivered, the other party will not be under any legal obligation of any\nkind whatsoever with respect to such a transaction by virtue of this Agreement or any other written or oral communication with respect to such\ntransaction, except for the matters specifically agreed to herein.\n(c) PBI and MapInfo each reserves the right, in its sole discretion, to reject any and all proposals made by the other party with regard to a\ntransaction between the parties and to terminate discussions and negotiations with the other party at any time and for any reason or no reason. PBI\nunderstands that MapInfo and its Representatives shall be free to conduct any process for any transaction in such manner as they, in their sole\ndiscretion, shall determine (including without limitation negotiating with other parties and entering into a preliminary or definitive agreement\nwithout prior notice to PBI or any other person), and that any procedures relating to such process or transaction may be changed at any time without\nnotice to PBI or any other person.\n10. Contacts and Communications.\nFor a period of eighteen (18) months from the Effective Date: (a) PBI agrees that all contacts or communications by it or its Representatives\nwith MapInfo regarding a possible Transaction or the Evaluation Material, all requests for additional information, facility tours or management\nmeetings, and all discussions or questions regarding procedures with respect to a possible Transaction, will be submitted or directed only (i) to\nJefferies Broadview or (ii) as MapInfo shall otherwise instruct in writing, and (b) without the express prior consent of MapInfo, PBI agrees that it\nwill not, directly or indirectly, contact or communicate with any officer, employee, director, stockholder, agent, customer or business partner of\nDisclosing Party regarding Evaluation Material or a possible Transaction.\n11. Miscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to\nthe conflicts of law principles thereof.\n(b) PBI and MapInfo each recognizes and acknowledges the competitive value and confidential nature of the Evaluation Material and\nthat irreparable damage may result to the other party if information contained therein or derived therefrom is disclosed to any person except as herein\nprovided or is used for any purpose other than the evaluation, negotiation and implementation of a possible Transaction. PBI and MapInfo each\nfurther understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by it or any of its\nRepresentatives, and that the other party may be entitled to equitable relief, including without limitation injunctive relief and specific performance,\nas a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement,\n7\nbut shall be in addition to all of a party’s other remedies available at law or in equity. In the event of litigation relating to this Agreement, if a court of\ncompetent jurisdiction determines in a final, nonappealable order that Receiving Party has breached this Agreement, then Receiving Party shall be\nliable for and pay to Disclosing Party the reasonable legal fees and disbursements that Disclosing Party has incurred in connection with such\nlitigation, including without limitation any appeal therefrom.\n(c) This Agreement may not be assigned in whole or in part by either party without the prior written consent of the other party; provided,\nhowever, that no such consent shall be required, and this Agreement may be assigned by a party, in the case of a sale by such party of all or\nsubstantially all of its business or assets, whether by merger, sale of assets or otherwise. Subject to the foregoing, this Agreement shall be binding\nupon and inure to the benefit of the parties and their respective successors and assigns.\n(d) This Agreement contains the entire agreement between the parties concerning the subject matter hereof. No provision of this\nAgreement may be waived or amended except by the express written consent of the parties. No failure or delay in exercising any right, power or\nprivilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or\nthe exercise of any other right, power or privilege hereunder.\n(e) All notices and other communications hereunder shall be in writing. Any notice or other communication hereunder shall be deemed\nduly delivered one (1) business day after it is sent for next-business-day delivery via a reputable nationwide overnight courier service, in each case to\nthe intended recipient as set forth below:\nIf to MapInfo:\nMapInfo Corporation\nOne Global View\nTroy, NY 12866\nAttention: General Counsel\nWith a copy to:\nWilmer Cutler Pickering Hale and Dorr LLP\n60 State Street\nBoston, MA -02109\nAttention: David A. Westenberg, Esq.\nIf to Receiving Party:\nPitney Bowes Inc.\n1 Elmcroft Road\nStamford, Connecticut 06926\nAttention: David Kleinman, Vice President, Corporate Development\n8\nWith a copy to:\nPitney Bowes Inc.\n1 Elmcroft Road\nStamford, Connecticut 06926\nAttention: Vice President, Law – Mergers and Acquisitions\nEither party may give any notice or other communication hereunder using any other means (including personal delivery, expedited courier,\nmessenger service, telecopy, ordinary mail or electronic mail), but no such notice or other communication shall be deemed duly given unless and\nuntil the party for whom it is intended actually receives it. Any party may change the address to which notices and other communications hereunder\nare to be delivered by giving the other party notice in the manner herein set forth.\n(f) For the convenience of the parties, this Agreement may be executed by facsimile and in counterparts, each of which shall be deemed\nto be an original, and both of which taken together, shall constitute one agreement binding on both parties.\n(g) The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or\ninterpretation of this Agreement.\n(h) Each Disclosing Party acknowledges that it is not acting as an advisor to the Receiving Party and will not receive any amount that\ncould be construed as a “minimum fee” within the meaning of United States Treas. Reg. Section 1.6011-4(b)(3) (or any successor thereto). In the\nevent one party claims that the Transaction is a proprietary or exclusive transaction, then that party will confirm in writing to the other party that\nthere is no limitation on disclosure of the United States federal tax treatment or tax structure of the Transaction.\n[Remainder of page intentionally left blank]\n9\nExecuted as of the date first above written.\nMAPINFO CORPORATION\nBy: /s/ Jason W. Joseph\nTitle: General Counsel and Secretary\nPITNEY BOWES INC.\nBy: /s/ David Kleinman\nTitle: Vice President, Corporate Development\n[Signature page to Confidentiality Agreement]\n10 EX-99.(D)(6) 16 dex99d6.htm CONFIDENTIALITY AGREEMENT, DATED AS OF DECEMBER 19, 2006,\nBETWEEN PITNEY BOWES\nExhibit (d)(6)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the “Agreement”) is dated and effective as of December 19, 2006 (the “Effective Date”), between MapInfo\nCorporation, a Delaware corporation with its principal office at One Global View, Troy, NY 12866 (“MapInfo”), and Pitney Bowes Inc., a Delaware\ncorporation with its principal office at 1 Elmcroft Road, Stamford, Connecticut 06926 (“PBI”).\nBackground\nA. PBI has requested MapInfo to provide certain information, which is either confidential or proprietary in nature, in connection with PBI’s\nconsideration of a possible negotiated transaction between MapInfo and PBI (the “Transaction”); and in connection with such Transaction, PBI may\nprovide Maplnfo with certain information which is either confidential or proprietary in nature.\nB. MapInfo and PBI each desires to protect the confidentiality of the information that it provides and to have the other party take or abstain\nfrom taking certain actions in accordance with the provisions of this Agreement.\nNow, therefore, in consideration of the mutual covenants and promises contained in this Agreement and other good and valuable consideration,\nthe receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:\n1. Definitions.\n(a) Each of MaplInfo and PBI is a “Disclosing Party” as to Evaluation Material concerning it that is furnished to the other party and is a\n“Receiving Party” as to Evaluation Material of the other party that is furnished to it.\n(b) “Evaluation Material” means any information concerning Disclosing Party (whether prepared by Disclosing Party, its Representatives\n(as defined herein) or otherwise, and regardless of the form of communication) that is furnished to Receiving Party or any of its Representatives by\nor on behalf of Disclosing Party on or after the date hereof, and any portions of notes, analyses, compilations, studies, interpretations, memoranda,\nreports or other documents (regardless of the form thereof) prepared by Receiving Party or its Representatives which contain, reflect or are based\nupon, in whole or in part, any information that is furnished to Receiving Party or its Representatives pursuant to this Agreement; provided, however,\nthat “Evaluation Material” does not include information concerning Disclosing Party which:\n(i) is or becomes generally available to the public other than as a result of a breach of this Agreement by Receiving Party or its\nRepresentatives;\n(ii) was within Receiving Party’s or any of its Representative’s possession prior to it being furnished to Receiving Party or its\nRepresentatives by or on behalf of\nDisclosing Party pursuant to this Agreement, provided that such information is not subject to another confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, Disclosing Party with respect to such information;\n(iii) becomes available to Receiving Party or any of its Representatives from a source other than Disclosing Party or any of its\nRepresentatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of\nconfidentiality to, Disclosing Party with respect to such information; or\n(iv) is independently developed by Receiving Party or others on its behalf without reference to or reliance upon any confidential\nor proprietary information furnished to Receiving Party or any of its Representatives by or on behalf of Disclosing Party.\n(c) “Representatives” means, with respect to a party, its parents and subsidiaries, and its and their respective directors, officers, affiliates,\nemployees, partners, agents or advisors (including without limitation attorneys, accountants, consultants and investment bankers).\n(d) The term “person” shall be broadly interpreted to include the media and any corporation, company, partnership, joint venture, group,\nlimited liability company, other entity or individual, and the term “affiliate” has the meaning set forth in Rule 12b-2 under the Securities Exchange\nAct of 1934, as amended (such Act, as amended, being referred to herein as the “Exchange Act”).\n2. Use and Disclosure of Evaluation Material.\n(a) Except as otherwise provided in this Agreement, Receiving Party hereby agrees that it and its Representatives shall:\n(i) use the other party’s Evaluation Material solely for the purpose of evaluating, negotiating and implementing a possible\nTransaction;\n(ii) keep the other party’s Evaluation Material confidential in accordance with the provisions of this Agreement; and\n(iii) not disclose any of the other party’s Evaluation Material except in accordance with the provisions of this Agreement;\nprovided, however, that Receiving Party may disclose any Evaluation Material to Receiving Party’s Representatives who need to know such\ninformation for the sole purpose of evaluating, negotiating and implementing a possible Transaction, provided that Receiving Party’s Representatives\nare informed of the confidential nature of such Evaluation Material and agree to use such information solely for the purpose of evaluating,\nnegotiating and implementing a possible Transaction and likewise agree to maintain the confidentiality of such Evaluation Material.\n2\n(b) Except as otherwise provided in this Agreement, neither MapInfo nor PBI nor any of their respective Representatives shall disclose\nto any other person (i) the existence of this Agreement, (ii) the fact that Evaluation Material has been made available by it to the other party or by the\nother party to it, (iii) that discussions are taking place concerning a possible Transaction between the parties, (iv) any of the terms, conditions or\nother facts with respect thereto, or (v) the status of such discussions (collectively, the “Transaction Information”). Without limiting the foregoing,\nReceiving Party agrees that, for a period of eighteen (18) months from the Effective Date, neither it nor its Representatives will enter into any\ndiscussions or any agreement, understanding or arrangement with any person regarding participation by such person or others in a negotiated\ntransaction with Disclosing Party, except that Receiving Party may, with Disclosing Party’s prior written consent, have discussions with other\npersons relating to obtaining debt (but not equity) financing for a negotiated transaction with Disclosing Party from commercial banks or other\ninstitutional sources if the persons with whom Receiving Party has such discussions agree to be bound by the terms of this Agreement.\n(c) Receiving Party shall be liable to Disclosing Party for any use or disclosure by any of Receiving Party’s Representatives of (i) the\nDisclosing Party’s Evaluation Material or (ii) Transaction Information which, if done by Receiving Party itself, would be a breach of this Agreement.\nReceiving Party agrees, at its sole expense, to take reasonable measures to restrain its Representatives from making or allowing to be made\nprohibited or unauthorized uses or disclosures of the Disclosing Party’s Evaluation Material and Transaction Information.\n(d) To the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or\nany other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree\nthat they have a commonality of interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of\nsuch material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is entitled to protection under the attorney-\nclient privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to such protection under these privileges or\ndoctrines, under this Agreement and under the joint defense doctrine.\n3. Legally Required Disclosure.\nIf Receiving Party or any of its Representatives is requested or required (by oral questions, interrogatories, requests for information or\ndocuments in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Disclosing Party’s Evaluation\nMaterial or Transaction Information, Receiving Party shall, except as prohibited by law, provide Disclosing Party with prompt written notice of any\nsuch request or requirement so that Disclosing Party may seek, at Disclosing Party’s expense, a protective order or other remedy and/or waive\ncompliance with the provisions of this Agreement. If Disclosing Party seeks a protective order or other remedy, Receiving Party shall provide such\ncooperation, at Disclosing Party’s expense, as Disclosing Party shall reasonably request. If, in the absence of a protective\n3\norder or other remedy or the receipt by Receiving Party of a waiver from Disclosing Party, Receiving Party or any of its Representatives is\nnonetheless, in the opinion of its legal counsel, legally compelled to disclose Evaluation Material or Transaction Information to any tribunal or other\nentity or else stand liable for contempt or suffer other censure or penalty, Receiving Party or such Representatives may, without liability hereunder,\ndisclose to such tribunal or other entity only that portion of the Disclosing Party’s Evaluation Material or Transaction Information which such\ncounsel advises Receiving Party or such Representatives in writing is legally required to be disclosed, provided that Receiving Party and such\nRepresentatives shall exercise reasonable best efforts, at Disclosing Party’s expense, to minimize the disclosure of the Disclosing Party’s Evaluation\nMaterial or Transaction Information and to preserve the confidentiality thereof. Notwithstanding the foregoing, if Receiving Party is required to\ndisclose Evaluation Material or Transaction Information by law or the rules or regulations of any regulatory authority having jurisdiction over\nReceiving Party or a stock exchange or interdealer quotation system on which Receiving Party’s securities are traded or quoted, Receiving Party may\nmake such disclosure to the extent required (in which case Receiving Party shall use reasonable efforts to give Disclosing Party the opportunity to\ncomment on the planned disclosure).\n4, Return of Evaluation Material.\nAt any time upon the written request of Disclosing Party for any reason or upon the Receiving Party’s determination not to proceed with a\ntransaction with Disclosing Party:\n(a) Receiving Party shall promptly (and in no event later than five (5) business days after such request) return to Disclosing Party or\ndestroy (and certify in writing to Disclosing Party that it has destroyed) all Evaluation Material (and all copies thereof) furnished to Receiving Party\nor its Representatives by or on behalf of Disclosing Party, and shall not retain any copies, extracts or other reproductions (including Evaluation\nMaterial stored in any computer or other electronic storage device) in whole or in part of such material; and\n(b) Receiving Party and its Representatives shall destroy all Evaluation Material prepared by Receiving Party or its Representatives and\nshall not retain any copies, extracts or other reproductions (including Evaluation Material stored in any computer or other electronic storage device)\nin whole or in part of such material, and such destruction shall be certified in writing to Disclosing Party by an authorized officer of Receiving Party\nupon the request of Disclosing Party.\nNotwithstanding the foregoing, one copy of written or other tangible Evaluation Material may be kept by the Receiving Party in a secure\nlocation solely to the extent required to comply with applicable laws, provided that such copy is retained in a segregated area under the exclusive\ncontrol of (i) if MapInfo is the Receiving Party, its general counsel, and (ii) if PBI is the Receiving Party, its Vice President of Corporate\nDevelopment.\nNotwithstanding the return or destruction of Evaluation Material, Receiving Party and its Representatives shall continue to be bound by their\nobligations hereunder.\n5. Term.\nThis Agreement shall apply to all Evaluation Material disclosed prior to the date that is twenty-four (24) months after the Effective Date.\nUnless otherwise expressly stated herein, the obligations set forth in this Agreement shall continue until the third (3rd) anniversary of the date of\ninitial disclosure of such Evaluation Material; provided, however, that if Disclosing Party notifies Receiving Party that any specific Evaluation\nMaterial is subject to a confidentiality obligation owed to a third party on the part of Disclosing Party that extends beyond such third\n(3rd) anniversary, Receiving Party shall abide by the obligations set forth in this Agreement with respect to such Evaluation Material for the term of\nDisclosing Party’s confidentiality obligation applicable to such Evaluation Material.\n6. Nonsolicitation.\nFor a period of eighteen (18) months from the Effective Date, PBI shall not solicit to employ any person who (i) is an officer of MapInfo or\nany of its subsidiaries whose name includes the word MaplInfo, or (ii) is employed in any capacity by MapInfo or any of its subsidiaries whose name\nincludes the word MapInfo and with whom Representatives of PBI first came in contact or first identified during the process of considering a\nTransaction; provided, however, that this section shall not prevent PBI or its affiliates from soliciting or hiring a person identified in clause (i) or\n(ii) (a “Covered Person”) if: (1) such Covered Person contacts PBI or its affiliates or Representatives on the Covered Person’s own initiative without\nany direct or indirect solicitation by or encouragement from PBI or its Representatives; (2) the personnel of PBI or its affiliates who solicited or\nhired the Covered Person have no knowledge of any Evaluation Material and none of the personnel of PBI who have knowledge of any Evaluation\nMaterial have actual advance knowledge of such solicitation; (3) such Covered Person responds to a general solicitation of employment not\nspecifically directed toward MapInfo or any of its subsidiaries whose name includes the word MapInfo or particular employees of MapInfo or any of\nits subsidiaries whose name includes the word Maplnfo; (4) such Covered Person is brought to PBI’s or one of its affiliate’s attention by an agency,\nsearch firm or other independent third party without direction by PBI or its affiliate to do so; or (5) PBI or one of its affiliates was discussing\nemployment with such Covered Person prior to the Effective Date.\n7. Standstill.\nPBI agrees that, for a period of eighteen (18) months from the Effective Date, unless PBI shall have been specifically invited in writing by\nMaplnfo, neither PBI nor any of its affiliates shall in any manner, directly or indirectly:\n(a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way advise, assist or\nencourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, (i) any acquisition\nof any securities (or beneficial ownership thereof) or assets of MapInfo, (ii) any tender or exchange offer, merger or other business combination\ninvolving Maplnfo, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to MaplInfo, or\n(iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any\nvoting securities of MapInfo;\n(b) form, join or in any way participate in a “group” (as defined under the Exchange Act) with respect to any securities of MapInfo;\n(c) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of\nMaplnfo;\n(d) take any action which might force MapInfo to make a public announcement regarding any of the types of matters set forth in\nsubsection (a) above;\n(e) enter into any discussions or arrangements with any person with respect to any of the foregoing; or\n(f) communicate with MapInfo’s stockholders with respect to any of the foregoing.\n8. Trading in Securities.\nPBI and MaplInfo each acknowledges that it is aware (and that its Representatives who are apprised of a possible Transaction have been or will\nbe so advised) that applicable securities laws prohibit any person who is aware of material, non-public information about a company obtained\ndirectly or indirectly from that company from purchasing or selling securities of such company or from communicating such information to any\nother person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\n(a) PBI and MaplInfo each understands and acknowledges that: (i) neither the other party nor its affiliates, nor any of the other party’s\nRepresentatives (including, in the case of MaplInfo, Jefferies Broadview and its affiliates), nor any of the other party’s or its affiliates” or its\nRepresentatives’ respective officers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Exchange Act, has\nmade or is making any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material; and (ii) none of\nsuch persons or entities shall have any liability to the other party or any of its Representatives or any other person relating to or resulting from the\nuse of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a definitive\nagreement between the parties, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any\nlegal effect. For purposes of this Agreement, the term “definitive agreement” does not include any executed letter of intent or any other preliminary\nwritten agreement, nor does it include any written or verbal acceptance of any offer or bid made by one party.\n(b) PBI and MapInfo each understands and agrees that no contract or agreement providing for any transaction involving the parties shall\nbe deemed to exist unless and until a definitive agreement has been executed and delivered, and PBI and MapInfo each hereby\n6\nwaives in advance any claims, including without limitation claims for breach of contract, in connection with any transaction between the parties\nunless and until the parties shall have entered into a definitive agreement. PBI and MapInfo each also agrees that unless and until a definitive\nagreement regarding a transaction between the parties has been executed and delivered, the other party will not be under any legal obligation of any\nkind whatsoever with respect to such a transaction by virtue of this Agreement or any other written or oral communication with respect to such\ntransaction, except for the matters specifically agreed to herein.\n(c) PBI and Maplnfo each reserves the right, in its sole discretion, to reject any and all proposals made by the other party with regard to a\ntransaction between the parties and to terminate discussions and negotiations with the other party at any time and for any reason or no reason. PBI\nunderstands that MapInfo and its Representatives shall be free to conduct any process for any transaction in such manner as they, in their sole\ndiscretion, shall determine (including without limitation negotiating with other parties and entering into a preliminary or definitive agreement\nwithout prior notice to PBI or any other person), and that any procedures relating to such process or transaction may be changed at any time without\nnotice to PBI or any other person.\n10. Contacts and Communications.\nFor a period of eighteen (18) months from the Effective Date: (a) PBI agrees that all contacts or communications by it or its Representatives\nwith MaplInfo regarding a possible Transaction or the Evaluation Material, all requests for additional information, facility tours or management\nmeetings, and all discussions or questions regarding procedures with respect to a possible Transaction, will be submitted or directed only (i) to\nJefferies Broadview or (ii) as MapInfo shall otherwise instruct in writing, and (b) without the express prior consent of MapInfo, PBI agrees that it\nwill not, directly or indirectly, contact or communicate with any officer, employee, director, stockholder, agent, customer or business partner of\nDisclosing Party regarding Evaluation Material or a possible Transaction.\n11. Miscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to\nthe conflicts of law principles thereof.\n(b) PBI and Maplnfo each recognizes and acknowledges the competitive value and confidential nature of the Evaluation Material and\nthat irreparable damage may result to the other party if information contained therein or derived therefrom is disclosed to any person except as herein\nprovided or is used for any purpose other than the evaluation, negotiation and implementation of a possible Transaction. PBI and MapInfo each\nfurther understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by it or any of its\nRepresentatives, and that the other party may be entitled to equitable relief, including without limitation injunctive relief and specific performance,\nas a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement,\n7\nbut shall be in addition to all of a party’s other remedies available at law or in equity. In the event of litigation relating to this Agreement, if a court of\ncompetent jurisdiction determines in a final, nonappealable order that Receiving Party has breached this Agreement, then Receiving Party shall be\nliable for and pay to Disclosing Party the reasonable legal fees and disbursements that Disclosing Party has incurred in connection with such\nlitigation, including without limitation any appeal therefrom.\n(c) This Agreement may not be assigned in whole or in part by either party without the prior written consent of the other party; provided,\nhowever, that no such consent shall be required, and this Agreement may be assigned by a party, in the case of a sale by such party of all or\nsubstantially all of its business or assets, whether by merger, sale of assets or otherwise. Subject to the foregoing, this Agreement shall be binding\nupon and inure to the benefit of the parties and their respective successors and assigns.\n(d) This Agreement contains the entire agreement between the parties concerning the subject matter hereof. No provision of this\nAgreement may be waived or amended except by the express written consent of the parties. No failure or delay in exercising any right, power or\nprivilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or\nthe exercise of any other right, power or privilege hereunder.\n(e) All notices and other communications hereunder shall be in writing. Any notice or other communication hereunder shall be deemed\nduly delivered one (1) business day after it is sent for next-business-day delivery via a reputable nationwide overnight courier service, in each case to\nthe intended recipient as set forth below:\nIf to MaplInfo:\nMaplnfo Corporation\nOne Global View\nTroy, NY 12866\nAttention: General Counsel\nWith a copy to:\nWilmer Cutler Pickering Hale and Dorr LLP\n60 State Street\nBoston, MA -02109\nAttention: David A. Westenberg, Esq.\nIf to Receiving Party:\nPitney Bowes Inc.\n1 Elmcroft Road\nStamford, Connecticut 06926\nAttention: David Kleinman, Vice President, Corporate Development\nWith a copy to:\nPitney Bowes Inc.\n1 Elmcroft Road\nStamford, Connecticut 06926\nAttention: Vice President, Law — Mergers and Acquisitions\nEither party may give any notice or other communication hereunder using any other means (including personal delivery, expedited courier,\nmessenger service, telecopy, ordinary mail or electronic mail), but no such notice or other communication shall be deemed duly given unless and\nuntil the party for whom it is intended actually receives it. Any party may change the address to which notices and other communications hereunder\nare to be delivered by giving the other party notice in the manner herein set forth.\n(f) For the convenience of the parties, this Agreement may be executed by facsimile and in counterparts, each of which shall be deemed\nto be an original, and both of which taken together, shall constitute one agreement binding on both parties.\n(g) The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or\ninterpretation of this Agreement.\n(h) Each Disclosing Party acknowledges that it is not acting as an advisor to the Receiving Party and will not receive any amount that\ncould be construed as a “minimum fee” within the meaning of United States Treas. Reg. Section 1.6011-4(b)(3) (or any successor thereto). In the\nevent one party claims that the Transaction is a proprietary or exclusive transaction, then that party will confirm in writing to the other party that\nthere is no limitation on disclosure of the United States federal tax treatment or tax structure of the Transaction.\n[Remainder of page intentionally left blank]\n9\nExecuted as of the date first above written.\nMAPINFO CORPORATION\nBy: /s/Jason W. Joseph\nTitle: General Counsel and Secretary\nPITNEY BOWES INC.\nBy: /s/ David Kleinman\nTitle: Vice President, Corporate Development\n[Signature page to Confidentiality Agreement]\n10 EX-99.(D)(6) 16 dex99d6.htm CONFIDENTIALITY AGREEMENT, DATED AS OF DECEMBER 19, 2006,\nBETWEEN PITNEY BOWES\nExhibit (d)(6)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the "Agreement") is dated and effective as of December 19, 2006 (the "Effective Date"), between MapInfo\nCorporation, a Delaware corporation with its principal office at One Global View, Troy, NY 12866 ("MapInfo"), and Pitney Bowes Inc., a Delaware\ncorporation with its principal office at 1 Elmcroft Road, Stamford, Connecticut 06926 ("PBI").\nBackground\nA. PBI has requested MapInfo to provide certain information, which is either confidential or proprietary in nature, in connection with PBI's\nconsideration of a possible negotiated transaction between MapInfo and PBI (the "Transaction"); and in connection with such Transaction, PBI may\nprovide MapInfo with certain information which is either confidential or proprietary in nature.\nB. MapInfo and PBI each desires to protect the confidentiality of the information that it provides and to have the other party take or abstain\nfrom taking certain actions in accordance with the provisions of this Agreement.\nNow, therefore, in consideration of the mutual covenants and promises contained in this Agreement and other good and valuable consideration\nthe receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:\n1. Definitions.\n(a) Each of MapInfo and PBI is a "Disclosing Party" as to Evaluation Material concerning it that is furnished to the other party and is\na\n"Receiving Party" as to Evaluation Material of the other party that is furnished to it.\n(b) "Evaluation Material" means any information concerning Disclosing Party (whether prepared by Disclosing Party, its Representatives\n(as defined herein) or otherwise, and regardless of the form of communication) that is furnished to Receiving Party or any of its Representatives by\nor on behalf of Disclosing Party on or after the date hereof, and any portions of notes, analyses, compilations, studies, interpretations, memoranda,\nreports or other documents (regardless of the form thereof) prepared by Receiving Party or its Representatives which contain, reflect or are based\nupon, in whole or in part, any information that is furnished to Receiving Party or its Representatives pursuant to this Agreement; provided, however,\nthat "Evaluation Material" does not include information concerning Disclosing Party which:\n(i) is or becomes generally available to the public other than as a result of a breach of this Agreement by Receiving Party or its\nRepresentatives;\n(ii) was within Receiving Party's or any of its Representative's possession prior to it being furnished to Receiving Party or\nits\nRepresentatives by or on behalf of\n1\nDisclosing Party pursuant to this Agreement, provided that such information is not subject to another confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, Disclosing Party with respect to such information;\n(iii) becomes available to Receiving Party or any of its Representatives from a source other than Disclosing Party or any of its\nRepresentatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of\nconfidentiality to, Disclosing Party with respect to such information; or\n(iv) is independently developed by Receiving Party or others on its behalf without reference to or reliance upon any confidential\nor proprietary information furnished to Receiving Party or any of its Representatives by or on behalf of Disclosing Party.\n(c) "Representatives" means, with respect to a party, its parents and subsidiaries, and its and their respective directors, officers, affiliates,\nemployees, partners, agents or advisors (including without limitation attorneys, accountants, consultants and investment bankers).\n(d) The term "person" shall be broadly interpreted to include the media and any corporation, company, partnership, joint venture, group,\nlimited liability company, other entity or individual, and the term "affiliate" has the meaning set forth in Rule 12b-2 under the Securities Exchange\nAct of 1934, as amended (such Act, as amended, being referred to herein as the "Exchange Act").\n2. Use and Disclosure of Evaluation Material.\n(a) Except as otherwise provided in this Agreement, Receiving Party hereby agrees that it and its Representatives shall:\n(i) use the other party's Evaluation Material solely for the purpose of evaluating, negotiating and implementing a possible\nTransaction;\n(ii) keep the other party's Evaluation Material confidential in accordance with the provisions of this Agreement; and\n(iii) not disclose any of the other party's Evaluation Material except in accordance with the provisions of this Agreement;\nprovided, however, that Receiving Party may disclose any Evaluation Material to Receiving Party's Representatives who need to know such\ninformation for the sole purpose of evaluating, negotiating and implementing a possible Transaction, provided that Receiving Party's Representatives\nare informed of the confidential nature of such Evaluation Material and agree to use such information solely for the purpose of evaluating,\nnegotiating and implementing a possible Transaction and likewise agree to maintain the confidentiality of such Evaluation Material.\n2\n(b) Except as otherwise provided in this Agreement, neither MapInfo nor PBI nor any of their respective Representatives shall disclose\nto any other person (i) the existence of this Agreement, (ii) the fact that Evaluation Material has been made available by it to the other party or by the\nother party to it, (iii) that discussions are taking place concerning a possible Transaction between the parties, (iv) any of the terms, conditions or\nother facts with respect thereto, or (v) the status of such discussions (collectively, the "Transaction Information"). Without limiting the foregoing,\nReceiving Party agrees that, for a period of eighteen (18) months from the Effective Date, neither it nor its Representatives will enter into any\ndiscussions or any agreement, understanding or arrangement with any person regarding participation by such person or others in a negotiated\ntransaction with Disclosing Party, except that Receiving Party may, with Disclosing Party's prior written consent, have discussions with other\npersons relating to obtaining debt (but not equity) financing for a negotiated transaction with Disclosing Party from commercial banks or other\ninstitutional sources if the persons with whom Receiving Party has such discussions agree to be bound by the terms of this Agreement.\n(c) Receiving Party shall be liable to Disclosing Party for any use or disclosure by any of Receiving Party's Representatives of (i) the\nDisclosing Party's Evaluation Material or (ii) Transaction Information which, if done by Receiving Party itself, would be a breach of this Agreement\nReceiving Party agrees, at its sole expense, to take reasonable measures to restrain its Representatives from making or allowing to be made\nprohibited or unauthorized uses or disclosures of the Disclosing Party's Evaluation Material and Transaction Information.\n(d) To the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or\nany other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree\nthat they have a commonality of interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of\nsuch material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is entitled to protection under the attorney-\nclient privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to such protection under these privileges\nor\ndoctrines, under this Agreement and under the joint defense doctrine.\n3. Legally Required Disclosure.\nIf Receiving Party or any of its Representatives is requested or required (by oral questions, interrogatories, requests for information or\ndocuments in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Disclosing Party's Evaluation\nMaterial or Transaction Information, Receiving Party shall, except as prohibited by law, provide Disclosing Party with prompt written notice of any\nsuch request or requirement so that Disclosing Party may seek, at Disclosing Party's expense, a protective order or other remedy and/or waive\ncompliance with the provisions of this Agreement. If Disclosing Party seeks a protective order or other remedy, Receiving Party shall provide such\ncooperation, at Disclosing Party's expense, as Disclosing Party shall reasonably request. If, in the absence of a protective\n3\norder or other remedy or the receipt by Receiving Party of a waiver from Disclosing Party, Receiving Party or any of its Representatives is\nnonetheless, in the opinion of its legal counsel, legally compelled to disclose Evaluation Material or Transaction Information to any tribunal or other\nentity or else stand liable for contempt or suffer other censure or penalty, Receiving Party or such Representatives may, without liability hereunder,\ndisclose to such tribunal or other entity only that portion of the Disclosing Party's Evaluation Material or Transaction Information which such\ncounsel advises Receiving Party or such Representatives in writing is legally required to be disclosed, provided that Receiving Party and such\nRepresentatives shall exercise reasonable best efforts, at Disclosing Party's expense, to minimize the disclosure of the Disclosing Party's Evaluation\nMaterial or Transaction Information and to preserve the confidentiality thereof. Notwithstanding the foregoing, if Receiving Party is required to\ndisclose Evaluation Material or Transaction Information by law or the rules or regulations of any regulatory authority having jurisdiction over\nReceiving Party or a stock exchange or interdealer quotation system on which Receiving Party's securities are traded or quoted, Receiving Party may\nmake such disclosure to the extent required (in which case Receiving Party shall use reasonable efforts to give Disclosing Party the opportunity to\ncomment on the planned disclosure).\n4. Return of Evaluation Material.\nAt any time upon the written request of Disclosing Party for any reason or upon the Receiving Party's determination not to proceed with a\ntransaction with Disclosing Party:\n(a) Receiving Party shall promptly (and in no event later than five (5) business days after such request) return to Disclosing Party or\ndestroy (and certify in writing to Disclosing Party that it has destroyed) all Evaluation Material (and all copies thereof) furnished to Receiving Party\nor its Representatives by or on behalf of Disclosing Party, and shall not retain any copies, extracts or other reproductions (including Evaluation\nMaterial stored in any computer or other electronic storage device) in whole or in part of such material; and\n(b) Receiving Party and its Representatives shall destroy all Evaluation Material prepared by Receiving Party or its Representatives and\nshall not retain any copies, extracts or other reproductions (including Evaluation Material stored in any computer or other electronic storage device)\nin whole or in part of such material, and such destruction shall be certified in writing to Disclosing Party by an authorized officer of Receiving Party\nupon the request of Disclosing Party.\nNotwithstanding the foregoing, one copy of written or other tangible Evaluation Material may be kept by the Receiving Party in a secure\nlocation solely to the extent required to comply with applicable laws, provided that such copy is retained in a segregated area under the exclusive\ncontrol of (i) if MapInfo is the Receiving Party, its general counsel, and (ii) if PBI is the Receiving Party, its Vice President of Corporate\nDevelopment.\nNotwithstanding the return or destruction of Evaluation Material, Receiving Party and its Representatives shall continue to be bound by their\nobligations hereunder.\n4\n5. Term\nThis Agreement shall apply to all Evaluation Material disclosed prior to the date that is twenty-four (24) months after the Effective Date.\nUnless otherwise expressly stated herein, the obligations set forth in this Agreement shall continue until the third (3rd) anniversary of the date of\ninitial disclosure of such Evaluation Material; provided, however, that if Disclosing Party notifies Receiving Party that any specific Evaluation\nMaterial is subject to a confidentiality obligation owed to a third party on the part of Disclosing Party that extends beyond such third\n(3rd) anniversary, Receiving Party shall abide by the obligations set forth in this Agreement with respect to such Evaluation Material for the term\nof\nDisclosing Party's confidentiality obligation applicable to such Evaluation Material.\n6. Nonsolicitation.\nFor a period of eighteen (18) months from the Effective Date, PBI shall not solicit to employ any person who (i) is an officer of MapInfo or\nany of its subsidiaries whose name includes the word MapInfo, or (ii) is employed in any capacity by MapInfo or any of its subsidiaries whose name\nincludes the word MapInfo and with whom Representatives of PBI first came in contact or first identified during the process of considering a\nTransaction; provided, however, that this section shall not prevent PBI or its affiliates from soliciting or hiring a person identified in clause (i) or\n(ii) (a "Covered Person") if: (1) such Covered Person contacts PBI or its affiliates or Representatives on the Covered Person's own initiative without\nany direct or indirect solicitation by or encouragement from PBI or its Representatives; (2) the personnel of PBI or its affiliates who solicited or\nhired the Covered Person have no knowledge of any Evaluation Material and none of the personnel of PBI who have knowledge of any Evaluation\nMaterial have actual advance knowledge of such solicitation; (3) such Covered Person responds to a general solicitation of employment not\nspecifically directed toward MapInfo or any of its subsidiaries whose name includes the word MapInfo or particular employees of MapInfo or any\nof\nits\nsubsidiaries whose name includes the word MapInfo; (4) such Covered Person is brought to PBI's or one of its affiliate's attention by an agency,\nsearch firm or other independent third party without direction by PBI or its affiliate to do so; or (5) PBI or one of its affiliates was discussing\nemployment with such Covered Person prior to the Effective Date.\n7. Standstill.\nPBI agrees that, for a period of eighteen (18) months from the Effective Date, unless PBI shall have been specifically invited in writing by\nMapInfo, neither PBI nor any of its affiliates shall in any manner, directly or indirectly:\n(a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way advise, assist or\nencourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, (i) any acquisition\nof any securities (or beneficial ownership thereof) or assets of MapInfo, (ii) any tender or exchange offer, merger or other business combination\ninvolving MapInfo, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to MapInfo, or\n(iv) any "solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any\nvoting securities of MapInfo;\n5\n(b) form, join or in any way participate in a "group" (as defined under the Exchange Act) with respect to any securities of MapInfo;\n(c) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of\nMapInfo;\n(d) take any action which might force MapInfo to make a public announcement regarding any of the types of matters set forth in\nsubsection (a) above;\n(e) enter into any discussions or arrangements with any person with respect to any of the foregoing; or\n(f) communicate with MapInfo's stockholders with respect to any of the foregoing.\n8. Trading in Securities.\nPBI and MapInfo each acknowledges that it is aware (and that its Representatives who are apprised of a possible Transaction have been or will\nbe so advised) that applicable securities laws prohibit any person who is aware of material, non-public information about a company obtained\ndirectly or indirectly from that company from purchasing or selling securities of such company or from communicating such information to any\nother person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\n9. No Representations and Warranties; Relationship to Definitive Agreement.\n(a) PBI and MapInfo each understands and acknowledges that: (i) neither the other party nor its affiliates, nor any of the other party's\nRepresentatives (including, in the case of MapInfo, Jefferies Broadview and its affiliates), nor any of the other party's or its affiliates' or its\nRepresentatives' respective officers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Exchange Act, has\nmade or is making any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material; and (ii) none of\nsuch persons or entities shall have any liability to the other party or any of its Representatives or any other person relating to or resulting from the\nuse of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a definitive\nagreement between the parties, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any\nlegal effect. For purposes of this Agreement, the term "definitive agreement" does not include any executed letter of intent or any other preliminary\nwritten agreement, nor does it include any written or verbal acceptance of any offer or bid made by one party\n(b) PBI and MapInfo each understands and agrees that no contract or agreement providing for any transaction involving the parties shall\nbe deemed to exist unless and until a definitive agreement has been executed and delivered, and PBI and MapInfo each hereby\n6\nwaives in advance any claims, including without limitation claims for breach of contract, in connection with any transaction between the parties\nunless and until the parties shall have entered into a definitive agreement. PBI and MapInfo each also agrees that unless and until a definitive\nagreement regarding a transaction between the parties has been executed and delivered, the other party will not be under any legal obligation of any\nkind whatsoever with respect to such a transaction by virtue of this Agreement or any other written or oral communication with respect to such\ntransaction, except for the matters specifically agreed to herein.\n(c) PBI and MapInfo each reserves the right, in its sole discretion, to reject any and all proposals made by the other party with regard to a\ntransaction between the parties and to terminate discussions and negotiations with the other party at any time and for any reason or no reason. PBI\nunderstands that MapInfo and its Representatives shall be free to conduct any process for any transaction in such manner as they, in their sole\ndiscretion, shall determine (including without limitation negotiating with other parties and entering into a preliminary or definitive agreement\nwithout prior notice to PBI or any other person), and that any procedures relating to such process or transaction may be changed at any time without\nnotice to PBI or any other person.\n10. Contacts and Communications.\nFor a period of eighteen (18) months from the Effective Date: (a) PBI agrees that all contacts or communications by it or its Representatives\nwith MapInfo regarding a possible Transaction or the Evaluation Material, all requests for additional information, facility tours or management\nmeetings, and all discussions or questions regarding procedures with respect to a possible Transaction, will be submitted or directed only (i) to\nJefferies Broadview or (ii) as MapInfo shall otherwise instruct in writing, and (b) without the express prior consent of MapInfo, PBI agrees that it\nwill not, directly or indirectly, contact or communicate with any officer, employee, director, stockholder, agent, customer or business partner of\nDisclosing Party regarding Evaluation Material or a possible Transaction.\n11. Miscellaneous\n(a) This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect\nto\nthe conflicts of law principles thereof.\n(b) PBI and MapInfo each recognizes and acknowledges the competitive value and confidential nature of the Evaluation Material and\nthat irreparable damage may result to the other party if information contained therein or derived therefrom is disclosed to any person except as herein\nprovided or is used for any purpose other than the evaluation, negotiation and implementation of a possible Transaction PBI and MapInfo each\nfurther understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by it or any of its\nRepresentatives, and that the other party may be entitled to equitable relief, including without limitation injunctive relief and specific performance,\nas a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement,\n7\nbut shall be in addition to all of a party's other remedies available at law or in equity. In the event of litigation relating to this Agreement, if a court of\ncompetent jurisdiction determines in a final, nonappealable order that Receiving Party has breached this Agreement, then Receiving Party shall be\nliable for and pay to Disclosing Party the reasonable legal fees and disbursements that Disclosing Party has incurred in connection with such\nlitigation, including without limitation any appeal therefrom.\n(c) This Agreement may not be assigned in whole or in part by either party without the prior written consent of the other party; provided,\nhowever, that no such consent shall be required, and this Agreement may be assigned by a party, in the case of a sale by such party of all or\nsubstantially all of its business or assets, whether by merger, sale of assets or otherwise. Subject to the foregoing, this Agreement shall be binding\nupon and inure to the benefit of the parties and their respective successors and assigns.\n(d) This Agreement contains the entire agreement between the parties concerning the subject matter hereof. No provision of this\nAgreement may be waived or amended except by the express written consent of the parties No failure or delay in exercising any right, power or\nprivilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or\nthe exercise of any other right, power or privilege hereunder.\n(e) All notices and other communications hereunder shall be in writing. Any notice or other communication hereunder shall be deemed\nduly delivered one (1) business day after it is sent for next-business-day delivery via a reputable nationwide overnight courier service, in each case\nto\nthe intended recipient as set forth below:\nIf to MapInfo:\nMapInfo Corporation\nOne Global View\nTroy, NY 12866\nAttention: General Counsel\nWith a copy to:\nWilmer Cutler Pickering Hale and Dorr LLP\n60 State Street\nBoston, MA -02109\nAttention: David A. Westenberg, Esq.\nIf to Receiving Party:\nPitney Bowes Inc.\n1 Elmcroft Road\nStamford, Connecticut 06926\nAttention: David Kleinman, Vice President, Corporate Development\n8\nWith a copy to:\nPitney Bowes Inc.\n1 Elmcroft Road\nStamford, Connecticut 06926\nAttention: Vice President, Law - Mergers and Acquisitions\nEither party may give any notice or other communication hereunder using any other means (including personal delivery, expedited courier,\nmessenger service, telecopy, ordinary mail or electronic mail), but no such notice or other communication shall be deemed duly given unless and\nuntil the party for whom it is intended actually receives it. Any party may change the address to which notices and other communications hereunder\nare to be delivered by giving the other party notice in the manner herein set forth.\n(f) For the convenience of the parties, this Agreement may be executed by facsimile and in counterparts, each of which shall be deemed\nto be an original, and both of which taken together, shall constitute one agreement binding on both parties.\n(g) The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or\ninterpretation of this Agreement.\n(h) Each Disclosing Party acknowledges that it is not acting as an advisor to the Receiving Party and will not receive any amount that\ncould be construed as a "minimum fee" within the meaning of United States Treas. Reg. Section 1.6011-4(b)(3) (or any successor thereto). In the\nevent one party claims that the Transaction is a proprietary or exclusive transaction, then that party will confirm in writing to the other party that\nthere is no limitation on disclosure of the United States federal tax treatment or tax structure of the Transaction.\n[Remainder of page intentionally left blank]\n9\nExecuted as of the date first above written.\nMAPINFO CORPORATION\nBy: /s/ Jason W. Joseph\nTitle: General Counsel and Secretary\nPITNEY BOWES INC.\nBy: /s/ David Kleinman\nTitle: Vice President, Corporate Development\n[Signature page to Confidentiality Agreement]\n10 EX-99.(D)(6) 16 dex99d6.htm CONFIDENTIALITY AGREEMENT, DATED AS OF DECEMBER 19, 2006,\nBETWEEN PITNEY BOWES\nExhibit (d)(6)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the “Agreement”) is dated and effective as of December 19, 2006 (the “Effective Date”), between MapInfo\nCorporation, a Delaware corporation with its principal office at One Global View, Troy, NY 12866 (“MapInfo”), and Pitney Bowes Inc., a Delaware\ncorporation with its principal office at 1 Elmcroft Road, Stamford, Connecticut 06926 (“PBI”).\nBackground\nA. PBI has requested MapInfo to provide certain information, which is either confidential or proprietary in nature, in connection with PBI’s\nconsideration of a possible negotiated transaction between MapInfo and PBI (the “Transaction”); and in connection with such Transaction, PBI may\nprovide MapInfo with certain information which is either confidential or proprietary in nature.\nB. MapInfo and PBI each desires to protect the confidentiality of the information that it provides and to have the other party take or abstain\nfrom taking certain actions in accordance with the provisions of this Agreement.\nNow, therefore, in consideration of the mutual covenants and promises contained in this Agreement and other good and valuable consideration,\nthe receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:\n1. Definitions.\n(a) Each of MapInfo and PBI is a “Disclosing Party” as to Evaluation Material concerning it that is furnished to the other party and is a\n“Receiving Party” as to Evaluation Material of the other party that is furnished to it.\n(b) “Evaluation Material” means any information concerning Disclosing Party (whether prepared by Disclosing Party, its Representatives\n(as defined herein) or otherwise, and regardless of the form of communication) that is furnished to Receiving Party or any of its Representatives by\nor on behalf of Disclosing Party on or after the date hereof, and any portions of notes, analyses, compilations, studies, interpretations, memoranda,\nreports or other documents (regardless of the form thereof) prepared by Receiving Party or its Representatives which contain, reflect or are based\nupon, in whole or in part, any information that is furnished to Receiving Party or its Representatives pursuant to this Agreement; provided, however,\nthat “Evaluation Material” does not include information concerning Disclosing Party which:\n(i) is or becomes generally available to the public other than as a result of a breach of this Agreement by Receiving Party or its\nRepresentatives;\n(ii) was within Receiving Party’s or any of its Representative’s possession prior to it being furnished to Receiving Party or its\nRepresentatives by or on behalf of\n1\nDisclosing Party pursuant to this Agreement, provided that such information is not subject to another confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, Disclosing Party with respect to such information;\n(iii) becomes available to Receiving Party or any of its Representatives from a source other than Disclosing Party or any of its\nRepresentatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of\nconfidentiality to, Disclosing Party with respect to such information; or\n(iv) is independently developed by Receiving Party or others on its behalf without reference to or reliance upon any confidential\nor proprietary information furnished to Receiving Party or any of its Representatives by or on behalf of Disclosing Party.\n(c) “Representatives” means, with respect to a party, its parents and subsidiaries, and its and their respective directors, officers, affiliates,\nemployees, partners, agents or advisors (including without limitation attorneys, accountants, consultants and investment bankers).\n(d) The term “person” shall be broadly interpreted to include the media and any corporation, company, partnership, joint venture, group,\nlimited liability company, other entity or individual, and the term “affiliate” has the meaning set forth in Rule 12b-2 under the Securities Exchange\nAct of 1934, as amended (such Act, as amended, being referred to herein as the “Exchange Act”).\n2. Use and Disclosure of Evaluation Material.\n(a) Except as otherwise provided in this Agreement, Receiving Party hereby agrees that it and its Representatives shall:\n(i) use the other party’s Evaluation Material solely for the purpose of evaluating, negotiating and implementing a possible\nTransaction;\n(ii) keep the other party’s Evaluation Material confidential in accordance with the provisions of this Agreement; and\n(iii) not disclose any of the other party’s Evaluation Material except in accordance with the provisions of this Agreement;\nprovided, however, that Receiving Party may disclose any Evaluation Material to Receiving Party’s Representatives who need to know such\ninformation for the sole purpose of evaluating, negotiating and implementing a possible Transaction, provided that Receiving Party’s Representatives\nare informed of the confidential nature of such Evaluation Material and agree to use such information solely for the purpose of evaluating,\nnegotiating and implementing a possible Transaction and likewise agree to maintain the confidentiality of such Evaluation Material.\n2\n(b) Except as otherwise provided in this Agreement, neither MapInfo nor PBI nor any of their respective Representatives shall disclose\nto any other person (i) the existence of this Agreement, (ii) the fact that Evaluation Material has been made available by it to the other party or by the\nother party to it, (iii) that discussions are taking place concerning a possible Transaction between the parties, (iv) any of the terms, conditions or\nother facts with respect thereto, or (v) the status of such discussions (collectively, the “Transaction Information”). Without limiting the foregoing,\nReceiving Party agrees that, for a period of eighteen (18) months from the Effective Date, neither it nor its Representatives will enter into any\ndiscussions or any agreement, understanding or arrangement with any person regarding participation by such person or others in a negotiated\ntransaction with Disclosing Party, except that Receiving Party may, with Disclosing Party’s prior written consent, have discussions with other\npersons relating to obtaining debt (but not equity) financing for a negotiated transaction with Disclosing Party from commercial banks or other\ninstitutional sources if the persons with whom Receiving Party has such discussions agree to be bound by the terms of this Agreement.\n(c) Receiving Party shall be liable to Disclosing Party for any use or disclosure by any of Receiving Party’s Representatives of (i) the\nDisclosing Party’s Evaluation Material or (ii) Transaction Information which, if done by Receiving Party itself, would be a breach of this Agreement.\nReceiving Party agrees, at its sole expense, to take reasonable measures to restrain its Representatives from making or allowing to be made\nprohibited or unauthorized uses or disclosures of the Disclosing Party’s Evaluation Material and Transaction Information.\n(d) To the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or\nany other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree\nthat they have a commonality of interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of\nsuch material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is entitled to protection under the attorney-\nclient privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to such protection under these privileges or\ndoctrines, under this Agreement and under the joint defense doctrine.\n3. Legally Required Disclosure.\nIf Receiving Party or any of its Representatives is requested or required (by oral questions, interrogatories, requests for information or\ndocuments in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Disclosing Party’s Evaluation\nMaterial or Transaction Information, Receiving Party shall, except as prohibited by law, provide Disclosing Party with prompt written notice of any\nsuch request or requirement so that Disclosing Party may seek, at Disclosing Party’s expense, a protective order or other remedy and/or waive\ncompliance with the provisions of this Agreement. If Disclosing Party seeks a protective order or other remedy, Receiving Party shall provide such\ncooperation, at Disclosing Party’s expense, as Disclosing Party shall reasonably request. If, in the absence of a protective\n3\norder or other remedy or the receipt by Receiving Party of a waiver from Disclosing Party, Receiving Party or any of its Representatives is\nnonetheless, in the opinion of its legal counsel, legally compelled to disclose Evaluation Material or Transaction Information to any tribunal or other\nentity or else stand liable for contempt or suffer other censure or penalty, Receiving Party or such Representatives may, without liability hereunder,\ndisclose to such tribunal or other entity only that portion of the Disclosing Party’s Evaluation Material or Transaction Information which such\ncounsel advises Receiving Party or such Representatives in writing is legally required to be disclosed, provided that Receiving Party and such\nRepresentatives shall exercise reasonable best efforts, at Disclosing Party’s expense, to minimize the disclosure of the Disclosing Party’s Evaluation\nMaterial or Transaction Information and to preserve the confidentiality thereof. Notwithstanding the foregoing, if Receiving Party is required to\ndisclose Evaluation Material or Transaction Information by law or the rules or regulations of any regulatory authority having jurisdiction over\nReceiving Party or a stock exchange or interdealer quotation system on which Receiving Party’s securities are traded or quoted, Receiving Party may\nmake such disclosure to the extent required (in which case Receiving Party shall use reasonable efforts to give Disclosing Party the opportunity to\ncomment on the planned disclosure).\n4. Return of Evaluation Material.\nAt any time upon the written request of Disclosing Party for any reason or upon the Receiving Party’s determination not to proceed with a\ntransaction with Disclosing Party:\n(a) Receiving Party shall promptly (and in no event later than five (5) business days after such request) return to Disclosing Party or\ndestroy (and certify in writing to Disclosing Party that it has destroyed) all Evaluation Material (and all copies thereof) furnished to Receiving Party\nor its Representatives by or on behalf of Disclosing Party, and shall not retain any copies, extracts or other reproductions (including Evaluation\nMaterial stored in any computer or other electronic storage device) in whole or in part of such material; and\n(b) Receiving Party and its Representatives shall destroy all Evaluation Material prepared by Receiving Party or its Representatives and\nshall not retain any copies, extracts or other reproductions (including Evaluation Material stored in any computer or other electronic storage device)\nin whole or in part of such material, and such destruction shall be certified in writing to Disclosing Party by an authorized officer of Receiving Party\nupon the request of Disclosing Party.\nNotwithstanding the foregoing, one copy of written or other tangible Evaluation Material may be kept by the Receiving Party in a secure\nlocation solely to the extent required to comply with applicable laws, provided that such copy is retained in a segregated area under the exclusive\ncontrol of (i) if MapInfo is the Receiving Party, its general counsel, and (ii) if PBI is the Receiving Party, its Vice President of Corporate\nDevelopment.\nNotwithstanding the return or destruction of Evaluation Material, Receiving Party and its Representatives shall continue to be bound by their\nobligations hereunder.\n4\n5. Term.\nThis Agreement shall apply to all Evaluation Material disclosed prior to the date that is twenty-four (24) months after the Effective Date.\nUnless otherwise expressly stated herein, the obligations set forth in this Agreement shall continue until the third (3rd) anniversary of the date of\ninitial disclosure of such Evaluation Material; provided, however, that if Disclosing Party notifies Receiving Party that any specific Evaluation\nMaterial is subject to a confidentiality obligation owed to a third party on the part of Disclosing Party that extends beyond such third\n(3rd) anniversary, Receiving Party shall abide by the obligations set forth in this Agreement with respect to such Evaluation Material for the term of\nDisclosing Party’s confidentiality obligation applicable to such Evaluation Material.\n6. Nonsolicitation.\nFor a period of eighteen (18) months from the Effective Date, PBI shall not solicit to employ any person who (i) is an officer of MapInfo or\nany of its subsidiaries whose name includes the word MapInfo, or (ii) is employed in any capacity by MapInfo or any of its subsidiaries whose name\nincludes the word MapInfo and with whom Representatives of PBI first came in contact or first identified during the process of considering a\nTransaction; provided, however, that this section shall not prevent PBI or its affiliates from soliciting or hiring a person identified in clause (i) or\n(ii) (a “Covered Person”) if: (1) such Covered Person contacts PBI or its affiliates or Representatives on the Covered Person’s own initiative without\nany direct or indirect solicitation by or encouragement from PBI or its Representatives; (2) the personnel of PBI or its affiliates who solicited or\nhired the Covered Person have no knowledge of any Evaluation Material and none of the personnel of PBI who have knowledge of any Evaluation\nMaterial have actual advance knowledge of such solicitation; (3) such Covered Person responds to a general solicitation of employment not\nspecifically directed toward MapInfo or any of its subsidiaries whose name includes the word MapInfo or particular employees of MapInfo or any of\nits subsidiaries whose name includes the word MapInfo; (4) such Covered Person is brought to PBI’s or one of its affiliate’s attention by an agency,\nsearch firm or other independent third party without direction by PBI or its affiliate to do so; or (5) PBI or one of its affiliates was discussing\nemployment with such Covered Person prior to the Effective Date.\n7. Standstill.\nPBI agrees that, for a period of eighteen (18) months from the Effective Date, unless PBI shall have been specifically invited in writing by\nMapInfo, neither PBI nor any of its affiliates shall in any manner, directly or indirectly:\n(a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way advise, assist or\nencourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, (i) any acquisition\nof any securities (or beneficial ownership thereof) or assets of MapInfo, (ii) any tender or exchange offer, merger or other business combination\ninvolving MapInfo, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to MapInfo, or\n(iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any\nvoting securities of MapInfo;\n5\n(b) form, join or in any way participate in a “group” (as defined under the Exchange Act) with respect to any securities of MapInfo;\n(c) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of\nMapInfo;\n(d) take any action which might force MapInfo to make a public announcement regarding any of the types of matters set forth in\nsubsection (a) above;\n(e) enter into any discussions or arrangements with any person with respect to any of the foregoing; or\n(f) communicate with MapInfo’s stockholders with respect to any of the foregoing.\n8. Trading in Securities.\nPBI and MapInfo each acknowledges that it is aware (and that its Representatives who are apprised of a possible Transaction have been or will\nbe so advised) that applicable securities laws prohibit any person who is aware of material, non-public information about a company obtained\ndirectly or indirectly from that company from purchasing or selling securities of such company or from communicating such information to any\nother person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\n9. No Representations and Warranties; Relationship to Definitive Agreement.\n(a) PBI and MapInfo each understands and acknowledges that: (i) neither the other party nor its affiliates, nor any of the other party’s\nRepresentatives (including, in the case of MapInfo, Jefferies Broadview and its affiliates), nor any of the other party’s or its affiliates’ or its\nRepresentatives’ respective officers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Exchange Act, has\nmade or is making any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material; and (ii) none of\nsuch persons or entities shall have any liability to the other party or any of its Representatives or any other person relating to or resulting from the\nuse of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a definitive\nagreement between the parties, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any\nlegal effect. For purposes of this Agreement, the term “definitive agreement” does not include any executed letter of intent or any other preliminary\nwritten agreement, nor does it include any written or verbal acceptance of any offer or bid made by one party.\n(b) PBI and MapInfo each understands and agrees that no contract or agreement providing for any transaction involving the parties shall\nbe deemed to exist unless and until a definitive agreement has been executed and delivered, and PBI and MapInfo each hereby\n6\nwaives in advance any claims, including without limitation claims for breach of contract, in connection with any transaction between the parties\nunless and until the parties shall have entered into a definitive agreement. PBI and MapInfo each also agrees that unless and until a definitive\nagreement regarding a transaction between the parties has been executed and delivered, the other party will not be under any legal obligation of any\nkind whatsoever with respect to such a transaction by virtue of this Agreement or any other written or oral communication with respect to such\ntransaction, except for the matters specifically agreed to herein.\n(c) PBI and MapInfo each reserves the right, in its sole discretion, to reject any and all proposals made by the other party with regard to a\ntransaction between the parties and to terminate discussions and negotiations with the other party at any time and for any reason or no reason. PBI\nunderstands that MapInfo and its Representatives shall be free to conduct any process for any transaction in such manner as they, in their sole\ndiscretion, shall determine (including without limitation negotiating with other parties and entering into a preliminary or definitive agreement\nwithout prior notice to PBI or any other person), and that any procedures relating to such process or transaction may be changed at any time without\nnotice to PBI or any other person.\n10. Contacts and Communications.\nFor a period of eighteen (18) months from the Effective Date: (a) PBI agrees that all contacts or communications by it or its Representatives\nwith MapInfo regarding a possible Transaction or the Evaluation Material, all requests for additional information, facility tours or management\nmeetings, and all discussions or questions regarding procedures with respect to a possible Transaction, will be submitted or directed only (i) to\nJefferies Broadview or (ii) as MapInfo shall otherwise instruct in writing, and (b) without the express prior consent of MapInfo, PBI agrees that it\nwill not, directly or indirectly, contact or communicate with any officer, employee, director, stockholder, agent, customer or business partner of\nDisclosing Party regarding Evaluation Material or a possible Transaction.\n11. Miscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to\nthe conflicts of law principles thereof.\n(b) PBI and MapInfo each recognizes and acknowledges the competitive value and confidential nature of the Evaluation Material and\nthat irreparable damage may result to the other party if information contained therein or derived therefrom is disclosed to any person except as herein\nprovided or is used for any purpose other than the evaluation, negotiation and implementation of a possible Transaction. PBI and MapInfo each\nfurther understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by it or any of its\nRepresentatives, and that the other party may be entitled to equitable relief, including without limitation injunctive relief and specific performance,\nas a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement,\n7\nbut shall be in addition to all of a party’s other remedies available at law or in equity. In the event of litigation relating to this Agreement, if a court of\ncompetent jurisdiction determines in a final, nonappealable order that Receiving Party has breached this Agreement, then Receiving Party shall be\nliable for and pay to Disclosing Party the reasonable legal fees and disbursements that Disclosing Party has incurred in connection with such\nlitigation, including without limitation any appeal therefrom.\n(c) This Agreement may not be assigned in whole or in part by either party without the prior written consent of the other party; provided,\nhowever, that no such consent shall be required, and this Agreement may be assigned by a party, in the case of a sale by such party of all or\nsubstantially all of its business or assets, whether by merger, sale of assets or otherwise. Subject to the foregoing, this Agreement shall be binding\nupon and inure to the benefit of the parties and their respective successors and assigns.\n(d) This Agreement contains the entire agreement between the parties concerning the subject matter hereof. No provision of this\nAgreement may be waived or amended except by the express written consent of the parties. No failure or delay in exercising any right, power or\nprivilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or\nthe exercise of any other right, power or privilege hereunder.\n(e) All notices and other communications hereunder shall be in writing. Any notice or other communication hereunder shall be deemed\nduly delivered one (1) business day after it is sent for next-business-day delivery via a reputable nationwide overnight courier service, in each case to\nthe intended recipient as set forth below:\nIf to MapInfo:\nMapInfo Corporation\nOne Global View\nTroy, NY 12866\nAttention: General Counsel\nWith a copy to:\nWilmer Cutler Pickering Hale and Dorr LLP\n60 State Street\nBoston, MA -02109\nAttention: David A. Westenberg, Esq.\nIf to Receiving Party:\nPitney Bowes Inc.\n1 Elmcroft Road\nStamford, Connecticut 06926\nAttention: David Kleinman, Vice President, Corporate Development\n8\nWith a copy to:\nPitney Bowes Inc.\n1 Elmcroft Road\nStamford, Connecticut 06926\nAttention: Vice President, Law – Mergers and Acquisitions\nEither party may give any notice or other communication hereunder using any other means (including personal delivery, expedited courier,\nmessenger service, telecopy, ordinary mail or electronic mail), but no such notice or other communication shall be deemed duly given unless and\nuntil the party for whom it is intended actually receives it. Any party may change the address to which notices and other communications hereunder\nare to be delivered by giving the other party notice in the manner herein set forth.\n(f) For the convenience of the parties, this Agreement may be executed by facsimile and in counterparts, each of which shall be deemed\nto be an original, and both of which taken together, shall constitute one agreement binding on both parties.\n(g) The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or\ninterpretation of this Agreement.\n(h) Each Disclosing Party acknowledges that it is not acting as an advisor to the Receiving Party and will not receive any amount that\ncould be construed as a “minimum fee” within the meaning of United States Treas. Reg. Section 1.6011-4(b)(3) (or any successor thereto). In the\nevent one party claims that the Transaction is a proprietary or exclusive transaction, then that party will confirm in writing to the other party that\nthere is no limitation on disclosure of the United States federal tax treatment or tax structure of the Transaction.\n[Remainder of page intentionally left blank]\n9\nExecuted as of the date first above written.\nMAPINFO CORPORATION\nBy: /s/ Jason W. Joseph\nTitle: General Counsel and Secretary\nPITNEY BOWES INC.\nBy: /s/ David Kleinman\nTitle: Vice President, Corporate Development\n[Signature page to Confidentiality Agreement]\n10 d73afdb784cb0d78e49f9eb7f8217a05.pdf effective_date jurisdiction party term EX-99.(D)(4) 8 dex99d4.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nEURAND N.V.\nOLYMPIC PLAZA\nFRED. ROESKESTRAAT 123\n1076 EE AMSTERDAM, THE NETHERLANDS\nJuly 13, 2010\nCONFIDENTIAL\nTPG Capital, L.P.\nAttn: Ronald Cami\n301 Commerce Street\nSuite 3300\nFort Worth, TX 76102\nAxcan Pharma Inc.\nAttn: Richard Tarte\n597 Laurier Boulevard\nMont-Saint-Hilaire, Quebec J3H 6C4\nCanada\nLadies and Gentlemen:\nIn connection with TPG Capital, L.P. (“TPG”) and Axcan Pharma Inc. (“Axcan”) (Axcan and TPG collectively, “you” or “your”) considering a\npossible negotiated tender offer/merger or acquisition of, or similar negotiated transaction (a “transaction”) with, Eurand N.V. (the “Company”)\nand/or its affiliates, you have requested, and the Company is prepared to make available to you, certain information concerning its business,\noperations, assets and liabilities. As a condition to such information being furnished to you and your affiliates, and your and their respective\ndirectors, officers, employees, commercial banking institutions of recognized standing as potential sources of debt financing, agents, or advisors\n(including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, “Representatives”), you agree to\ntreat any information concerning the Company (whether prepared by the Company, its advisors or otherwise and irrespective of the form of\ncommunication) which has been or is furnished to you or to your Representatives by or on behalf of the Company in relation to the potential\ntransaction (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement, and to take or\nabstain from taking certain other actions hereinafter set forth.\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 2\nThe term “Evaluation Material” shall be deemed to include any notes, analyses, reports, compilations, studies, interpretations, memoranda or\nother documents (regardless of the form thereof) prepared by you or your Representatives which contain, reflect or are based upon, in whole or in\npart, any information furnished to you or your Representatives pursuant hereto. The term “Evaluation Material” does not include information which\n(i) is or becomes generally available to the public other than as a result of a disclosure directly or indirectly by you or your Representatives in\nviolation of this letter agreement; (ii) was within your possession or the possession of any of your Representatives prior to it being furnished to you\nby or on behalf of the Company pursuant hereto, provided that such information is not known by you to be subject to another confidentiality\nagreement with or other contractual obligation of confidentiality to the Company with respect to such information; (iii) becomes available to you or\nany of your Representatives on a non-confidential basis from a source other than the Company or any of its Representatives, provided that such\nsource is not known by you to be bound by a confidentiality agreement with or other contractual obligation of confidentiality to the Company with\nrespect to such information; or (iv) is independently developed by you or your Representatives without reference to or reliance on any of the\nEvaluation Material, as evidenced by written evidence of the same.\nYou hereby agree that (i) you and your Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible\ntransaction between the Company and you, (ii) the Evaluation Material will be kept confidential and (iii) you and your Representatives will not\ndisclose any of the Evaluation Material in any manner whatsoever; provided, however, that (x) you may make any disclosure of such information to\nwhich the Company gives its prior written consent; and (y) any of such information may be disclosed to your Representatives who need to know\nsuch information for the sole purpose of evaluating a possible transaction with the Company, provided that each such Representative agrees to treat\nsuch information as confidential in accordance with the terms of this letter agreement. For the avoidance of doubt, TPG and Axcan acknowledge that\nAxcan and the Company enjoy a long-standing and valued commercial relationship based on formalized contractual arrangements, and accordingly\nyou further agree that you and your Representatives shall not use the Evaluation Material (a) in connection with the negotiating or re-negotiating of\nany of the commercial terms of any agreement or arrangement between Axcan and the Company, or (b) in connection with any actions, suits,\nproceedings or claims relating to any commercial agreements or arrangements between Axcan and the Company. For the avoidance of doubt,\n“Evaluation Material” shall not include information furnished or to be furnished by or on behalf of the Company in relation to activities covered by\nsuch contractual arrangements, which information shall remain subject to the confidentiality obligations under said contractual arrangements. You\nshall be responsible for any breach by your Representatives of the terms of this letter agreement that are applicable to your Representatives, and you\nagree, at your sole expense, to take commercially reasonable measures to restrain your Representatives from prohibited or unauthorized disclosure or\nuse of the Evaluation Material in breach of this letter agreement. As a further condition to such Evaluation Material being furnished to any\ncommercial banking institution of recognized standing as a potential source of debt financing, such banking institution shall, prior to receiving such\nEvaluation Material, execute a written agreement with TPG and/or Axcan agreeing to be bound by the terms of this letter agreement that are\napplicable to your Representatives.\n-2-\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 3\nIn addition, except as otherwise required by applicable law, regulation or legal process the parties agree that, without the prior written consent\nof the other party or as otherwise permitted by this letter agreement, the parties and their Representatives will not disclose to any other person the\nexistence of this letter agreement, the fact that the Evaluation Material has been made available to you, that discussions or negotiations are taking\nplace concerning a possible transaction involving the Company or any of the terms, conditions or other facts with respect thereto (including the\nstatus thereof). Without limiting the generality of the foregoing, you further agree that, without the prior written consent of the Company, you will\nnot, directly or indirectly, enter into any agreement, arrangement or understanding (other than with your Representatives in their capacities as such),\nor any discussions which might lead to such agreement, arrangement or understanding (other than with your Representatives in their capacities as\nsuch), with any person regarding a possible transaction involving the Company (except in respect of any possible financing of such transaction). The\nterm “person” as used in this letter agreement shall be broadly interpreted to include the media and any governmental representative or authority,\ncorporation, company, partnership, joint venture, group, limited liability company, other entity or individual. Notwithstanding the foregoing, the\nCompany may disclose the fact that it is pursuing strategic alternatives; provided, however, that, except to the extent required by applicable law,\nregulation or legal process (including the rules of applicable stock exchanges), the Company will not, without your prior written consent, identify\nyou by name or identifiable description as being involved in discussions or negotiations concerning the transaction contemplated herein to any\nperson other than directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and\nfinancial advisors) of the Company who reasonably require access to such information in connection with such transaction.\nIn the event that you or any of your Representatives are requested or required (by any applicable law or regulation or pursuant to legal process\nsuch as oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other\nsimilar process) to disclose any of the Evaluation Material or the existence of this letter agreement, you shall provide the Company with prompt\nwritten notice, to the extent legally permissible, of any such request or requirement and the Company may seek a protective order or other\nappropriate remedy and/or waive compliance with the provisions of this letter agreement. If you or any of your Representatives are on the advice of\ncounsel, legally required to disclose Evaluation Material, you or your Representatives may, without liability hereunder, disclose to such tribunal or\nother entity only that portion of the Evaluation Material which such counsel advises you is legally required to be disclosed, provided that you\nexercise commercially reasonable efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by reasonably\ncooperating with the Company to request an appropriate protective order or other reliable assurance that confidential treatment will be accorded the\nEvaluation Material.\nIf you decide that you do not wish to proceed with a transaction with the Company, you will promptly inform the Company of that decision. At\nany time upon the written request of the Company for any reason, you will promptly (and in no event later than five business days after such request)\ndeliver to the Company or destroy all written Evaluation Material (and all copies\n-3-\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 4\nthereof) furnished to you or your Representatives by or on behalf of the Company pursuant hereto and you and your Representatives shall not retain\nany copies, extracts or other reproductions in whole or in part of such material. In the event of such a request, all Evaluation Material prepared by\nyou or your Representatives shall be destroyed and no copy thereof (including that stored in any computer or similar device) shall be retained.\nNotwithstanding the foregoing, you and your Representatives (i) may each retain one (1) copy of the Evaluation Material to the extent that such\nretention is required to demonstrate compliance with applicable law, rule, regulation or professional standards (as applicable to attorneys and\naccountants), or to comply with a bona fide document retention policy, provided, however, that any such information so retained shall be segregated\nto your or your Representatives’, as the case may be, legal department or internal compliance department and held in compliance with the terms of\nthis Agreement and (ii) shall, to the extent that (i) above is inapplicable to Evaluation Material that is electronically stored, destroy such\nelectronically stored Evaluation Material only to the extent that it is reasonably practical to do so. Upon the Company’s written request, you shall\nconfirm in writing your compliance with the terms of this paragraph. Notwithstanding the return or destruction of the Evaluation Material, you and\nyour Representatives will continue to be bound by your obligations of confidentiality and other obligations hereunder in accordance with the terms\nhereof.\nYou understand and acknowledge that neither the Company nor any of its Representatives (including, without limitation, any investment bank\nthat the Company informs you is acting as its representative in connection with the possible transaction (“IBANK”)), or any of their respective\ndirectors, officers, stockholders, partners, owners, employees, affiliates or agents make any representation or warranty, express or implied, as to the\naccuracy or completeness of the Evaluation Material. You agree that neither the Company nor any of its Representatives (including, without\nlimitation, IBANK), or any of their respective directors, officers, stockholders, partners, owners, employees, affiliates or agents shall have any\nliability to you or to any of your Representatives or any other person relating to or resulting from the use of the Evaluation Material or any errors\ntherein or omissions therefrom. Only those representations or warranties which are made in a written agreement regarding any transactions\ncontemplated hereby, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, you and we understand and agree that we\nand you have a commonality of interest with respect to such matters and it is our and your desire, intention and mutual understanding that the sharing\nof such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under\nthe attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is entitled to protection under the\nattorney-client privilege, work product doctrine and other applicable privilege shall remain entitled to such protection under these privileges, this\nletter agreement, and under the joint defense doctrine.\nIn addition, you hereby acknowledge that you are aware (and that prior to their receipt of any Evaluation Material your Representatives who\nare apprised of a possible transaction have\n-4-\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 5\nbeen or will be advised) that the United States and other applicable securities laws generally prohibit any person who has material, non-public\ninformation about a company obtained directly or indirectly from that company from purchasing or selling securities of such company or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase\nor sell such securities.\nYou agree that all communications regarding a possible transaction regarding the Company, all requests for additional information, facility\ntours or management meetings and all discussions or questions regarding procedures with respect to a possible transaction, will be submitted or\ndirected to Gearoid Faherty or such other person or persons as may designated by the Company in writing. Without the express prior consent of the\nCompany, you agree that you will not, directly or indirectly, contact or communicate with any person known by you to be an officer, employee or\nagent of the Company.\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of 12 months from the date hereof,\nneither you nor any of your affiliates will solicit to employ, (i) any of the officers of the Company or (ii) any of the other employees of the Company\nwith whom you have come into contact during the course of due diligence, in each case so long as they are employed by the Company, without\nobtaining the prior written consent of the Company; provided that the placement of general advertisements (including, without limitation, any\nrecruitment efforts conducted by any recruitment agency, provided that neither you nor such of your affiliates have directed such recruitment efforts\nat such person) shall not constitute a breach of this provision.\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, during the period commencing on the date of this\nletter agreement and ending on the 18 month anniversary of the date of this letter agreement, neither you nor any of your Representatives shall,\nwithout the prior written consent of an authorized officer of the Company or its board of directors:\n(a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any Voting Securities or direct or indirect\nrights to acquire any Voting Securities of the Company or any subsidiary thereof, or any assets of the Company or any subsidiary or division thereof\n(provided, however, that the foregoing shall not be understood to limit your ability to propose or enter into other ordinary course commercial\ntransactions with the Company, including licensing, marketing, production and similar arrangements, that do not involve a sale, transfer or license\n(other than a limited license) of all or any substantial portion of the stock, assets or business of the Company or its subsidiaries);\n(b) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the rules of the\nSecurities and Exchange Commission (the “SEC”)), or seek to advise or influence any person or entity with respect to the voting of, any Voting\nSecurities of the Company;\n-5-\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 6\n(c) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary\ntransaction involving the Company or any of its securities or assets;\n(d) form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, in\nconnection with any of the foregoing;\n(e) otherwise act or seek to control or influence the management, board of directors or policies of the Company; or\n(f) take any action that could reasonably be expected to require the Company to make a public announcement regarding the possibility of any\nof the events described in clauses (a) through (e) above.\nFor purposes of this letter agreement, “Voting Securities” shall mean, at any time, shares of any class of capital stock of the Company which\nare then entitled to vote generally in the election of directors; provided, that for purposes of this definition any securities which at such time are\nconvertible or exchangeable into or exercisable for shares of common stock of the Company shall be deemed to have been so converted, exchanged\nor exercised. For the avoidance of doubt, “Voting Securities” does not include any debt securities of the Company or its affiliates, and nothing in this\nletter agreement shall prohibit you or any of your Representatives from purchasing any such debt securities.\nEach party hereto understands and agrees that no contract or agreement providing for any transaction involving the Company shall be deemed\nto exist between you and the Company unless and until a final definitive agreement has been executed and delivered, and each party hereby waives,\nin advance, any claims (including, without limitation, claims for breach of contract) in connection with any transaction involving the Company\nunless and until you and the Company shall have entered into a final definitive agreement. You and the Company also agree that unless and until a\nfinal definitive agreement regarding a transaction between the Company and you has been executed and delivered, neither the Company nor you will\nbe under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this letter agreement or any other written or oral\nexpression with respect to such transaction, except for the matters specifically agreed to herein or therein. You further acknowledge and agree that\nthe Company reserves the right, in its sole discretion, to reject any and all proposals made by you or any of your Representatives with regard to a\ntransaction between the Company and you, and to terminate discussions and negotiations with you at any time and for any reason or no reason. You\nfurther understand that (i) the Company and its Representatives shall be free to conduct any process for any transaction involving the Company, if\nand as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a\npreliminary or definitive agreement without prior notice to you or any other person); and (ii) any procedures relating to such process or transaction\nmay be changed at any time without notice to you or any other person. Each party hereto further understands that it shall not have any claims\nwhatsoever against the other party, its Representatives or any of their respective directors, officers, stockholders, owners, partners, employees,\naffiliates or agents arising out of or relating to a transaction involving the Company (other than those as against the\n-6-\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 7\nparties to a final definitive agreement with you in accordance with the terms thereof) nor, unless a final definitive agreement is entered into with you,\nagainst any third party with whom a transaction is entered into. Neither this paragraph nor any other provision in this letter agreement can be waived\nor amended except by written consent of both parties, which consent shall specifically refer to this paragraph (or such provision) and explicitly make\nsuch waiver or amendment. For the purposes of this paragraph, the term “definitive agreement” shall not include an executed letter of intent or any\nother preliminary written agreement, nor does it include any written or verbal acceptance by the Company of any offer or bid on your part.\nNotwithstanding the foregoing, nothing in this paragraph shall limit the rights or obligations of either party under this letter agreement.\nIt is understood and agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power\nor privilege hereunder.\nYou acknowledge and agree that the Company has not granted you any license, copyright or similar right with respect to any of the Evaluation\nMaterial.\nYou recognize and acknowledge the competitive value and confidential nature of the Evaluation Material and that irreparable damage will\nresult to the Company if information contained therein or derived therefrom is disclosed to any third party except as herein provided or is used for\nany purpose other than the evaluation of a possible negotiated transaction with the Company. It is further understood and agreed that money damages\nwould not be a sufficient remedy for any breach of this letter agreement by you or any of your Representatives and that the Company shall be\nentitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed\nto be the exclusive remedies for a breach by you of this letter agreement but shall be in addition to all other remedies available at law or equity to the\nCompany. In the event of litigation relating to this letter agreement, if a court of competent jurisdiction determines in a final, nonappealable order\nthat a party has breached this letter agreement, then the non-prevailing party shall be liable and pay to the prevailing party the reasonable legal fees\nand disbursements incurred by prevailing party in connection with such litigation, including any appeal therefrom.\nThis letter agreement is for the benefit of each party hereto, and shall be governed by and construed in accordance with the laws of the State of\nNew York, without giving effect to the principles of conflicts of law thereof. Each party hereby irrevocably and unconditionally consents to submit\nto the exclusive jurisdiction of the courts of the State of New York and the United States of America located in the State of New York for any\nactions, suits or proceedings arising out of or relating to this letter agreement and the transactions contemplated hereby (and agrees not to commence\nany action, suit or proceeding relating thereto except in such courts), and each party further agrees that service of any process, summons, notice or\ndocument by Federal Express, DHL, UPS, Airborne or any other recognized international courier service to its respective address set forth in this\nletter agreement shall be effective service of process for any action, suit or proceeding brought against such party in any such court. Each party\nhereto hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or\n-7-\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 8\nproceeding arising out of this letter agreement or the transactions contemplated hereby, in the courts of the State of New York or the United States of\nAmerica located in the State of New York, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such\ncourt that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\nThe rights of the Company under this letter agreement may be assigned in whole or in part to any purchaser of the Company, which purchaser\nshall be entitled to enforce this letter agreement to the same extent and in the same manner as the Company is entitled to enforce this letter\nagreement. You may not assign your rights or obligations under this letter agreement to any person or entity without the prior written consent of the\nCompany. Subject to the foregoing, this letter agreement shall be binding on the respective successors and permitted assigns of the parties hereto.\nThe letter agreement contains the entire agreement between you and the Company concerning the subject matter hereof, and no modification\nof this letter agreement or waiver of the terms and conditions hereof will be binding unless approved in writing by you and the Company.\nThis letter agreement shall expire 24 months from the date hereof.\nFor the convenience of the parties, this letter agreement may be executed by facsimile and in counterparts, each of which shall be deemed to be\nan original, and both of which taken together, shall constitute one agreement binding on both parties.\n[Remainder of Page Intentionally Left Blank; Signature Page to Follow]\n-8-\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nEurand N.V.\nBy: /s/ Gearóid Faherty\nName: Gearóid Faherty\nTitle: Chief Executive Officer\nAccepted and agreed as of the date first written above:\nTPG Capital, L.P.\nBy: TPG Capital Advisors, LLC\nBy: /s/ Ronald Cami\nName: Ronald Cami\nTitle: Vice President\nAxcan Pharma Inc.\nBy: /s/ Richard Tarte\nName: Richard Tarte\nTitle: General Counsel EX-99.(D)(4) 8 dex99d4.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nEURAND N.V.\nOLYMPIC PLAZA\nFRED. ROESKESTRAAT 123\n1076 EE AMSTERDAM, THE NETHERLANDS\nJuly 13, 2010\nCONFIDENTIAL\nTPG Capital, L.P.\nAttn: Ronald Cami\n301 Commerce Street\nSuite 3300\nFort Worth, TX 76102\nAxcan Pharma Inc.\nAttn: Richard Tarte\n597 Laurier Boulevard\nMont-Saint-Hilaire, Quebec J3H 6C4\nCanada\nLadies and Gentlemen:\nIn connection with TPG Capital, L.P. (“IPG”) and Axcan Pharma Inc. (“Axcan”) (Axcan and TPG collectively, “you” or “your”) considering a\npossible negotiated tender offer/merger or acquisition of, or similar negotiated transaction (a “transaction”) with, Eurand N.V. (the “Company”)\nand/or its affiliates, you have requested, and the Company is prepared to make available to you, certain information concerning its business,\noperations, assets and liabilities. As a condition to such information being furnished to you and your affiliates, and your and their respective\ndirectors, officers, employees, commercial banking institutions of recognized standing as potential sources of debt financing, agents, or advisors\n(including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, “Representatives”), you agree to\ntreat any information concerning the Company (whether prepared by the Company, its advisors or otherwise and irrespective of the form of\ncommunication) which has been or is furnished to you or to your Representatives by or on behalf of the Company in relation to the potential\ntransaction (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement, and to take or\nabstain from taking certain other actions hereinafter set forth.\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 2\nThe term “Evaluation Material” shall be deemed to include any notes, analyses, reports, compilations, studies, interpretations, memoranda or\nother documents (regardless of the form thereof) prepared by you or your Representatives which contain, reflect or are based upon, in whole or in\npart, any information furnished to you or your Representatives pursuant hereto. The term “Evaluation Material” does not include information which\n(i) is or becomes generally available to the public other than as a result of a disclosure directly or indirectly by you or your Representatives in\nviolation of this letter agreement; (i) was within your possession or the possession of any of your Representatives prior to it being furnished to you\nby or on behalf of the Company pursuant hereto, provided that such information is not known by you to be subject to another confidentiality\nagreement with or other contractual obligation of confidentiality to the Company with respect to such information; (iii) becomes available to you or\nany of your Representatives on a non-confidential basis from a source other than the Company or any of its Representatives, provided that such\nsource is not known by you to be bound by a confidentiality agreement with or other contractual obligation of confidentiality to the Company with\nrespect to such information; or (iv) is independently developed by you or your Representatives without reference to or reliance on any of the\nEvaluation Material, as evidenced by written evidence of the same.\nYou hereby agree that (i) you and your Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible\ntransaction between the Company and you, (ii) the Evaluation Material will be kept confidential and (iii) you and your Representatives will not\ndisclose any of the Evaluation Material in any manner whatsoever; provided, however, that (x) you may make any disclosure of such information to\nwhich the Company gives its prior written consent; and (y) any of such information may be disclosed to your Representatives who need to know\nsuch information for the sole purpose of evaluating a possible transaction with the Company, provided that each such Representative agrees to treat\nsuch information as confidential in accordance with the terms of this letter agreement. For the avoidance of doubt, TPG and Axcan acknowledge that\nAxcan and the Company enjoy a long-standing and valued commercial relationship based on formalized contractual arrangements, and accordingly\nyou further agree that you and your Representatives shall not use the Evaluation Material (a) in connection with the negotiating or re-negotiating of\nany of the commercial terms of any agreement or arrangement between Axcan and the Company, or (b) in connection with any actions, suits,\nproceedings or claims relating to any commercial agreements or arrangements between Axcan and the Company. For the avoidance of doubt,\n“Evaluation Material” shall not include information furnished or to be furnished by or on behalf of the Company in relation to activities covered by\nsuch contractual arrangements, which information shall remain subject to the confidentiality obligations under said contractual arrangements. You\nshall be responsible for any breach by your Representatives of the terms of this letter agreement that are applicable to your Representatives, and you\nagree, at your sole expense, to take commercially reasonable measures to restrain your Representatives from prohibited or unauthorized disclosure or\nuse of the Evaluation Material in breach of this letter agreement. As a further condition to such Evaluation Material being furnished to any\ncommercial banking institution of recognized standing as a potential source of debt financing, such banking institution shall, prior to receiving such\nEvaluation Material, execute a written agreement with TPG and/or Axcan agreeing to be bound by the terms of this letter agreement that are\napplicable to your Representatives.\n_2-\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 3\nIn addition, except as otherwise required by applicable law, regulation or legal process the parties agree that, without the prior written consent\nof the other party or as otherwise permitted by this letter agreement, the parties and their Representatives will not disclose to any other person the\nexistence of this letter agreement, the fact that the Evaluation Material has been made available to you, that discussions or negotiations are taking\nplace concerning a possible transaction involving the Company or any of the terms, conditions or other facts with respect thereto (including the\nstatus thereof). Without limiting the generality of the foregoing, you further agree that, without the prior written consent of the Company, you will\nnot, directly or indirectly, enter into any agreement, arrangement or understanding (other than with your Representatives in their capacities as such),\nor any discussions which might lead to such agreement, arrangement or understanding (other than with your Representatives in their capacities as\nsuch), with any person regarding a possible transaction involving the Company (except in respect of any possible financing of such transaction). The\nterm “person” as used in this letter agreement shall be broadly interpreted to include the media and any governmental representative or authority,\ncorporation, company, partnership, joint venture, group, limited liability company, other entity or individual. Notwithstanding the foregoing, the\nCompany may disclose the fact that it is pursuing strategic alternatives; provided, however, that, except to the extent required by applicable law,\nregulation or legal process (including the rules of applicable stock exchanges), the Company will not, without your prior written consent, identify\nyou by name or identifiable description as being involved in discussions or negotiations concerning the transaction contemplated herein to any\nperson other than directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and\nfinancial advisors) of the Company who reasonably require access to such information in connection with such transaction.\nIn the event that you or any of your Representatives are requested or required (by any applicable law or regulation or pursuant to legal process\nsuch as oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other\nsimilar process) to disclose any of the Evaluation Material or the existence of this letter agreement, you shall provide the Company with prompt\nwritten notice, to the extent legally permissible, of any such request or requirement and the Company may seek a protective order or other\nappropriate remedy and/or waive compliance with the provisions of this letter agreement. If you or any of your Representatives are on the advice of\ncounsel, legally required to disclose Evaluation Material, you or your Representatives may, without liability hereunder, disclose to such tribunal or\nother entity only that portion of the Evaluation Material which such counsel advises you is legally required to be disclosed, provided that you\nexercise commercially reasonable efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by reasonably\ncooperating with the Company to request an appropriate protective order or other reliable assurance that confidential treatment will be accorded the\nEvaluation Material.\nIf you decide that you do not wish to proceed with a transaction with the Company, you will promptly inform the Company of that decision. At\nany time upon the written request of the Company for any reason, you will promptly (and in no event later than five business days after such request)\ndeliver to the Company or destroy all written Evaluation Material (and all copies\n_3-\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 4\nthereof) furnished to you or your Representatives by or on behalf of the Company pursuant hereto and you and your Representatives shall not retain\nany copies, extracts or other reproductions in whole or in part of such material. In the event of such a request, all Evaluation Material prepared by\nyou or your Representatives shall be destroyed and no copy thereof (including that stored in any computer or similar device) shall be retained.\nNotwithstanding the foregoing, you and your Representatives (i) may each retain one (1) copy of the Evaluation Material to the extent that such\nretention is required to demonstrate compliance with applicable law, rule, regulation or professional standards (as applicable to attorneys and\naccountants), or to comply with a bona fide document retention policy, provided, however, that any such information so retained shall be segregated\nto your or your Representatives’, as the case may be, legal department or internal compliance department and held in compliance with the terms of\nthis Agreement and (ii) shall, to the extent that (i) above is inapplicable to Evaluation Material that is electronically stored, destroy such\nelectronically stored Evaluation Material only to the extent that it is reasonably practical to do so. Upon the Company’s written request, you shall\nconfirm in writing your compliance with the terms of this paragraph. Notwithstanding the return or destruction of the Evaluation Material, you and\nyour Representatives will continue to be bound by your obligations of confidentiality and other obligations hereunder in accordance with the terms\nhereof.\nYou understand and acknowledge that neither the Company nor any of its Representatives (including, without limitation, any investment bank\nthat the Company informs you is acting as its representative in connection with the possible transaction (“IBANK?™)), or any of their respective\ndirectors, officers, stockholders, partners, owners, employees, affiliates or agents make any representation or warranty, express or implied, as to the\naccuracy or completeness of the Evaluation Material. You agree that neither the Company nor any of its Representatives (including, without\nlimitation, IBANK), or any of their respective directors, officers, stockholders, partners, owners, employees, affiliates or agents shall have any\nliability to you or to any of your Representatives or any other person relating to or resulting from the use of the Evaluation Material or any errors\ntherein or omissions therefrom. Only those representations or warranties which are made in a written agreement regarding any transactions\ncontemplated hereby, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, you and we understand and agree that we\nand you have a commonality of interest with respect to such matters and it is our and your desire, intention and mutual understanding that the sharing\nof such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under\nthe attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is entitled to protection under the\nattorney-client privilege, work product doctrine and other applicable privilege shall remain entitled to such protection under these privileges, this\nletter agreement, and under the joint defense doctrine.\nIn addition, you hereby acknowledge that you are aware (and that prior to their receipt of any Evaluation Material your Representatives who\nare apprised of a possible transaction have\n_4-\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 5\nbeen or will be advised) that the United States and other applicable securities laws generally prohibit any person who has material, non-public\ninformation about a company obtained directly or indirectly from that company from purchasing or selling securities of such company or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase\nor sell such securities.\nYou agree that all communications regarding a possible transaction regarding the Company, all requests for additional information, facility\ntours or management meetings and all discussions or questions regarding procedures with respect to a possible transaction, will be submitted or\ndirected to Gearoid Faherty or such other person or persons as may designated by the Company in writing. Without the express prior consent of the\nCompany, you agree that you will not, directly or indirectly, contact or communicate with any person known by you to be an officer, employee or\nagent of the Company.\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of 12 months from the date hereof,\nneither you nor any of your affiliates will solicit to employ, (i) any of the officers of the Company or (ii) any of the other employees of the Company\nwith whom you have come into contact during the course of due diligence, in each case so long as they are employed by the Company, without\nobtaining the prior written consent of the Company; provided that the placement of general advertisements (including, without limitation, any\nrecruitment efforts conducted by any recruitment agency, provided that neither you nor such of your affiliates have directed such recruitment efforts\nat such person) shall not constitute a breach of this provision.\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, during the period commencing on the date of this\nletter agreement and ending on the 18 month anniversary of the date of this letter agreement, neither you nor any of your Representatives shall,\nwithout the prior written consent of an authorized officer of the Company or its board of directors:\n(a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any Voting Securities or direct or indirect\nrights to acquire any Voting Securities of the Company or any subsidiary thereof, or any assets of the Company or any subsidiary or division thereof\n(provided, however, that the foregoing shall not be understood to limit your ability to propose or enter into other ordinary course commercial\ntransactions with the Company, including licensing, marketing, production and similar arrangements, that do not involve a sale, transfer or license\n(other than a limited license) of all or any substantial portion of the stock, assets or business of the Company or its subsidiaries);\n(b) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the rules of the\nSecurities and Exchange Commission (the “SEC™)), or seek to advise or influence any person or entity with respect to the voting of, any Voting\nSecurities of the Company;\n_5.\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 6\n(c) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary\ntransaction involving the Company or any of its securities or assets;\n(d) form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, in\nconnection with any of the foregoing;\n(e) otherwise act or seek to control or influence the management, board of directors or policies of the Company; or\n(f) take any action that could reasonably be expected to require the Company to make a public announcement regarding the possibility of any\nof the events described in clauses (a) through (e) above.\nFor purposes of this letter agreement, “Voting Securities” shall mean, at any time, shares of any class of capital stock of the Company which\nare then entitled to vote generally in the election of directors; provided, that for purposes of this definition any securities which at such time are\nconvertible or exchangeable into or exercisable for shares of common stock of the Company shall be deemed to have been so converted, exchanged\nor exercised. For the avoidance of doubt, “Voting Securities” does not include any debt securities of the Company or its affiliates, and nothing in this\nletter agreement shall prohibit you or any of your Representatives from purchasing any such debt securities.\nEach party hereto understands and agrees that no contract or agreement providing for any transaction involving the Company shall be deemed\nto exist between you and the Company unless and until a final definitive agreement has been executed and delivered, and each party hereby waives,\nin advance, any claims (including, without limitation, claims for breach of contract) in connection with any transaction involving the Company\nunless and until you and the Company shall have entered into a final definitive agreement. You and the Company also agree that unless and until a\nfinal definitive agreement regarding a transaction between the Company and you has been executed and delivered, neither the Company nor you will\nbe under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this letter agreement or any other written or oral\nexpression with respect to such transaction, except for the matters specifically agreed to herein or therein. You further acknowledge and agree that\nthe Company reserves the right, in its sole discretion, to reject any and all proposals made by you or any of your Representatives with regard to a\ntransaction between the Company and you, and to terminate discussions and negotiations with you at any time and for any reason or no reason. You\nfurther understand that (i) the Company and its Representatives shall be free to conduct any process for any transaction involving the Company, if\nand as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a\npreliminary or definitive agreement without prior notice to you or any other person); and (ii) any procedures relating to such process or transaction\nmay be changed at any time without notice to you or any other person. Each party hereto further understands that it shall not have any claims\nwhatsoever against the other party, its Representatives or any of their respective directors, officers, stockholders, owners, partners, employees,\naffiliates or agents arising out of or relating to a transaction involving the Company (other than those as against the\n-6-\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 7\nparties to a final definitive agreement with you in accordance with the terms thereof) nor, unless a final definitive agreement is entered into with you,\nagainst any third party with whom a transaction is entered into. Neither this paragraph nor any other provision in this letter agreement can be waived\nor amended except by written consent of both parties, which consent shall specifically refer to this paragraph (or such provision) and explicitly make\nsuch waiver or amendment. For the purposes of this paragraph, the term “definitive agreement” shall not include an executed letter of intent or any\nother preliminary written agreement, nor does it include any written or verbal acceptance by the Company of any offer or bid on your part.\nNotwithstanding the foregoing, nothing in this paragraph shall limit the rights or obligations of either party under this letter agreement.\nIt is understood and agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power\nor privilege hereunder.\nYou acknowledge and agree that the Company has not granted you any license, copyright or similar right with respect to any of the Evaluation\nMaterial.\nYou recognize and acknowledge the competitive value and confidential nature of the Evaluation Material and that irreparable damage will\nresult to the Company if information contained therein or derived therefrom is disclosed to any third party except as herein provided or is used for\nany purpose other than the evaluation of a possible negotiated transaction with the Company. It is further understood and agreed that money damages\nwould not be a sufficient remedy for any breach of this letter agreement by you or any of your Representatives and that the Company shall be\nentitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed\nto be the exclusive remedies for a breach by you of this letter agreement but shall be in addition to all other remedies available at law or equity to the\nCompany. In the event of litigation relating to this letter agreement, if a court of competent jurisdiction determines in a final, nonappealable order\nthat a party has breached this letter agreement, then the non-prevailing party shall be liable and pay to the prevailing party the reasonable legal fees\nand disbursements incurred by prevailing party in connection with such litigation, including any appeal therefrom.\nThis letter agreement is for the benefit of each party hereto, and shall be governed by and construed in accordance with the laws of the State of\nNew York, without giving effect to the principles of conflicts of law thereof. Each party hereby irrevocably and unconditionally consents to submit\nto the exclusive jurisdiction of the courts of the State of New York and the United States of America located in the State of New York for any\nactions, suits or proceedings arising out of or relating to this letter agreement and the transactions contemplated hereby (and agrees not to commence\nany action, suit or proceeding relating thereto except in such courts), and each party further agrees that service of any process, summons, notice or\ndocument by Federal Express, DHL, UPS, Airborne or any other recognized international courier service to its respective address set forth in this\nletter agreement shall be effective service of process for any action, suit or proceeding brought against such party in any such court. Each party\nhereto hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or\n_7-\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 8\nproceeding arising out of this letter agreement or the transactions contemplated hereby, in the courts of the State of New York or the United States of\nAmerica located in the State of New York, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such\ncourt that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\nThe rights of the Company under this letter agreement may be assigned in whole or in part to any purchaser of the Company, which purchaser\nshall be entitled to enforce this letter agreement to the same extent and in the same manner as the Company is entitled to enforce this letter\nagreement. You may not assign your rights or obligations under this letter agreement to any person or entity without the prior written consent of the\nCompany. Subject to the foregoing, this letter agreement shall be binding on the respective successors and permitted assigns of the parties hereto.\nThe letter agreement contains the entire agreement between you and the Company concerning the subject matter hereof, and no modification\nof this letter agreement or waiver of the terms and conditions hereof will be binding unless approved in writing by you and the Company.\nThis letter agreement shall expire 24 months from the date hereof.\nFor the convenience of the parties, this letter agreement may be executed by facsimile and in counterparts, each of which shall be deemed to be\nan original, and both of which taken together, shall constitute one agreement binding on both parties.\n[Remainder of Page Intentionally Left Blank; Signature Page to Follow]\n-8-\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nEurand N. V.\nBy: /s/ Geardid Faherty\nName: Geardid Faherty\nTitle: Chief Executive Officer\nAccepted and agreed as of the date first written above:\nTPG Capital, L.P.\nBy: TPG Capital Advisors, LLC\nBy: /s/ Ronald Cami\nName: Ronald Cami\nTitle: Vice President\nAxcan Pharma Inc.\nBy: /s/ Richard Tarte\nName: Richard Tarte\nTitle: General Counsel EX-99.(D)(4) 8 dex99d4.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nEURAND N.V.\nOLYMPIC PLAZA\nFRED. ROESKESTRAAT 123\n1076 EE AMSTERDAM, THE NETHERLANDS\nJuly 13, 2010\nCONFIDENTIAL\nTPG Capital, L.P.\nAttn: Ronald Cami\n301 Commerce Street\nSuite 3300\nFort Worth, TX 76102\nAxcan Pharma Inc.\nAttn: Richard Tarte\n597 Laurier Boulevard\nMont-Saint-Hilaire, Quebec J3H 6C4\nCanada\nLadies and Gentlemen:\nIn connection with TPG Capital, L.P. ("TPG") and Axcan Pharma Inc. ("Axcan") (Axcan and TPG collectively, "you" or "your") considering a\npossible negotiated tender offer/merger or acquisition of, or similar negotiated transaction (a "transaction") with, Eurand N.V. (the "Company")\nand/or its affiliates, you have requested, and the Company is prepared to make available to you, certain information concerning its business,\noperations, assets and liabilities. As a condition to such information being furnished to you and your affiliates, and your and their respective\ndirectors, officers, employees, commercial banking institutions of recognized standing as potentia sources of debt financing, agents, or advisors\n(including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, "Representatives"), you agree\nto\ntreat any information concerning the Company (whether prepared by the Company, its advisors or otherwise and irrespective of the form of\ncommunication) which has been or is furnished to you or to your Representatives by or on behalf of the Company in relation to the potential\ntransaction (herein collectively referred to as the "Evaluation Material") in accordance with the provisions of this letter agreement, and to take or\nabstain from taking certain other actions hereinafter set forth.\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 2\nThe term "Evaluation Material" shall be deemed to include any notes, analyses, reports, compilations, studies, interpretations, memoranda or\nother documents (regardless of the form thereof) prepared by you or your Representatives which contain, reflect or are based upon, in whole or in\npart, any information furnished to you or your Representatives pursuant hereto. The term "Evaluation Material" does not include information which\n(i) is or becomes generally available to the public other than as a result of a disclosure directly or indirectly by you or your Representatives in\nviolation of this letter agreement; (ii) was within your possession or the possession of any of your Representatives prior to it being furnished to you\nby or on behalf of the Company pursuant hereto, provided that such information is not known by you to be subject to another confidentiality\nagreement with or other contractual obligation of confidentiality to the Company with respect to such information; (iii) becomes available to you or\nany of your Representatives on a non-confidential basis from a source other than the Company or any of its Representatives, provided that such\nsource is not known by you to be bound by a confidentiality agreement with or other contractual obligation of confidentiality to the Company with\nrespect to such information; or (iv) is independently developed by you or your Representatives without reference to or reliance on any of the\nEvaluation Material, as evidenced by written evidence of the same.\nYou hereby agree that (i) you and your Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible\ntransaction between the Company and you, (ii) the Evaluation Material will be kept confidential and (iii) you and your Representatives will not\ndisclose any of the Evaluation Material in any manner whatsoever; provided, however, that (x) you may make any disclosure of such information\nto\nwhich the Company gives its prior written consent; and (y) any of such information may be disclosed to your Representatives who need to know\nsuch information for the sole purpose of evaluating a possible transaction with the Company, provided that each such Representative agrees to treat\nsuch information as confidential in accordance with the terms of this letter agreement. For the avoidance of doubt, TPG and Axcan acknowledge that\nAxcan and the Company enjoy a long-standing and valued commercial relationship based on formalized contractual arrangements, and accordingly\nyou further agree that you and your Representatives shall not use the Evaluation Material (a) in connection with the negotiating or re-negotiating\nof\nany of the commercial terms of any agreement or arrangement between Axcan and the Company, or (b) in connection with any actions, suits,\nproceedings or claims relating to any commercial agreements or arrangements between Axcan and the Company. For the avoidance of doubt,\n"Evaluation Material" shall not include information furnished or to be furnished by or on behalf of the Company in relation to activities covered by\nsuch contractual arrangements, which information shall remain subject to the confidentiality obligations under said contractual arrangements. You\nshall be responsible for any breach by your Representatives of the terms of this letter agreement that are applicable to your Representatives, and you\nagree, at your sole expense, to take commercially reasonable measures to restrain your Representatives from prohibited or unauthorized disclosure or\nuse of the Evaluation Material in breach of this letter agreement. As a further condition to such Evaluation Material being furnished to any\ncommercial banking institution of recognized standing as a potential source of debt financing, such banking institution shall, prior to receiving such\nEvaluation Material, execute a written agreement with TPG and/or Axcan agreeing to be bound by the terms of this letter agreement that are\napplicable to your Representatives.\n2\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 3\nIn addition, except as otherwise required by applicable law, regulation or legal process the parties agree that, without the prior written consent\nof\nthe other party or as otherwise permitted by this letter agreement, the parties and their Representatives will not disclose to any other person the\nexistence of this letter agreement, the fact that the Evaluation Material has been made available to you, that discussions or negotiations are taking\nplace concerning a possible transaction involving the Company or any of the terms, conditions or other facts with respect thereto (including the\nstatus thereof). Without limiting the generality of the foregoing, you further agree that, without the prior written consent of the Company, you will\nnot, directly or indirectly, enter into any agreement, arrangement or understanding (other than with your Representatives in their capacities as such),\nor\nany discussions which might lead to such agreement, arrangement or understanding (other than with your Representatives in their capacities as\nsuch), with any person regarding a possible transaction involving the Company (except in respect of any possible financing of such transaction). The\nterm "person" as used in this letter agreement shall be broadly interpreted to include the media and any governmental representative or authority,\ncorporation, company, partnership, joint venture, group, limited liability company, other entity or individual. Notwithstanding the foregoing, the\nCompany may disclose the fact that it is pursuing strategic alternatives; provided, however, that, except to the extent required by applicable law,\nregulation or legal process (including the rules of applicable stock exchanges), the Company will not, without your prior written consent, identify\nyou by name or identifiable description as being involved in discussions or negotiations concerning the transaction contemplated herein to any\nperson other than directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and\nfinancial advisors) of the Company who reasonably require access to such information in connection with such transaction.\nIn the event that you or any of your Representatives are requested or required (by any applicable law or regulation or pursuant to legal process\nsuch as oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other\nsimilar process) to disclose any of the Evaluation Material or the existence of this letter agreement, you shall provide the Company with prompt\nwritten notice, to the extent legally permissible, of any such request or requirement and the Company may seek a protective order or other\nappropriate remedy and/or waive compliance with the provisions of this letter agreement. If you or any of your Representatives are on the advice of\ncounsel, legally required to disclose Evaluation Material, you or your Representatives may, without liability hereunder, disclose to such tribunal or\nother entity only that portion of the Evaluation Material which such counsel advises you is legally required to be disclosed, provided that you\nexercise commercially reasonable efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by reasonably\ncooperating with the Company to request an appropriate protective order or other reliable assurance that confidential treatment will be accorded the\nEvaluation Material.\nIf you decide that you do not wish to proceed with a transaction with the Company, you will promptly inform the Company of that decision. At\nany time upon the written request of the Company for any reason, you will promptly (and in no event later than five business days after such request)\ndeliver to the Company or destroy all written Evaluation Material (and all copies\n3\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 4\nthereof) furnished to you or your Representatives by or on behalf of the Company pursuant hereto and you and your Representatives shall not\nretain\nany copies, extracts or other reproductions in whole or in part of such material. In the event of such a request, all Evaluation Material prepared by\nyou or your Representatives shall be destroyed and no copy thereof (including that stored in any computer or similar device) shall be retained.\nNotwithstanding the foregoing, you and your Representatives (i) may each retain one (1) copy of the Evaluation Material to the extent that such\nretention is required to demonstrate compliance with applicable law, rule, regulation or professional standards (as applicable to attorneys and\nto your or your Representatives', as the case may be, legal department or internal compliance department and held in compliance with the terms\naccountants), or to comply with a bona fide document retention policy, provided, however, that any such information so retained shall be segregated of\nthis Agreement and (ii) shall, to the extent that (i) above is inapplicable to Evaluation Material that is electronically stored, destroy such\nelectronically stored Evaluation Material only to the extent that it is reasonably practical to do so. Upon the Company's written request, you shall\nconfirm in writing your compliance with the terms of this paragraph. Notwithstanding the return or destruction of the Evaluation Material, you and\nyour Representatives will continue to be bound by your obligations of confidentiality and other obligations hereunder in accordance with the terms\nhereof.\nYou understand and acknowledge that neither the Company nor any of its Representatives (including, without limitation, any investment bank\nthat the Company informs you is acting as its representative in connection with the possible transaction ("IBANK")), or any of their respective\ndirectors, officers, stockholders, partners, owners, employees, affiliates or agents make any representation or warranty, express or implied, as to the\naccuracy or completeness of the Evaluation Material. You agree that neither the Company nor any of its Representatives (including, without\nlimitation, IBANK), or any of their respective directors, officers, stockholders, partners, owners, employees, affiliates or agents shall have any\nliability to you or to any of your Representatives or any other person relating to or resulting from the use of the Evaluation Material or any errors\ntherein or omissions therefrom. Only those representations or warranties which are made in a written agreement regarding any transactions\ncontemplated hereby, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, you and we understand and agree that we\nand you have a commonality of interest with respect to such matters and it is our and your desire, intention and mutual understanding that the sharing\nof such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under\nthe attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is entitled to protection under the\nattorney-client privilege, work product doctrine and other applicable privilege shall remain entitled to such protection under these privileges, this\nletter agreement, and under the joint defense doctrine.\nIn addition, you hereby acknowledge that you are aware (and that prior to their receipt of any Evaluation Material your Representatives who\nare apprised of a possible transaction have\n4\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 5\nbeen or will be advised) that the United States and other applicable securities laws generally prohibit any person who has material, non-public\ninformation about a company obtained directly or indirectly from that company from purchasing or selling securities of such company or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase\nor sell such securities.\nYou agree that all communications regarding a possible transaction regarding the Company, all requests for additional information, facility\ntours or management meetings and all discussions or questions regarding procedures with respect to a possible transaction, will be submitted\nor\ndirected to Gearoid Faherty or such other person or persons as may designated by the Company in writing. Without the express prior consent of\nthe\nCompany, you agree that you will not, directly or indirectly, contact or communicate with any person known by you to be an officer, employee or\nagent of the Company.\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of 12 months from the date hereof,\nneither you nor any of your affiliates will solicit to employ, (i) any of the officers of the Company or (ii) any of the other employees of the Company\nwith whom you have come into contact during the course of due diligence, in each case so long as they are employed by the Company, without\nobtaining the prior written consent of the Company; provided that the placement of general advertisements (including, without limitation, any\nrecruitment efforts conducted by any recruitment agency, provided that neither you nor such of your affiliates have directed such recruitment efforts\nat such person) shall not constitute a breach of this provision.\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, during the period commencing on the date of this\nletter agreement and ending on the 18 month anniversary of the date of this letter agreement, neither you nor any of your Representatives shall,\nwithout the prior written consent of an authorized officer of the Company or its board of directors:\n(a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any Voting Securities or direct or indirect\nrights to acquire any Voting Securities of the Company or any subsidiary thereof, or any assets of the Company or any subsidiary or division thereof\n(provided, however, that the foregoing shall not be understood to limit your ability to propose or enter into other ordinary course commercial\ntransactions with the Company, including licensing, marketing, production and similar arrangements, that do not involve a sale, transfer or license\n(other than a limited license) of all or any substantial portion of the stock, assets or business of the Company or its subsidiaries);\n(b) make, or in any way participate, directly or indirectly, in any "solicitation" of "proxies" to vote (as such terms are used in the rules of the\nSecurities and Exchange Commission (the "SEC")), or seek to advise or influence any person or entity with respect to the voting of, any Voting\nSecurities of the Company;\n5\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 6\n(c) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary\ntransaction involving the Company or any of its securities or assets;\n(d) form, join or in any way participate in a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, in\nconnection with any of the foregoing;\n(e) otherwise act or seek to control or influence the management, board of directors or policies of the Company;\nor\n(f) take any action that could reasonably be expected to require the Company to make a public announcement regarding the possibility of any\nof the events described in clauses (a) through (e) above.\nFor purposes of this letter agreement, "Voting Securities" shall mean, at any time, shares of any class of capital stock of the Company which\nare then entitled to vote generally in the election of directors; provided, that for purposes of this definition any securities which at such time are\nconvertible or exchangeable into or exercisable for shares of common stock of the Company shall be deemed to have been so converted, exchanged\nor\nexercised. For the avoidance of doubt, "Voting Securities" does not include any debt securities of the Company or its affiliates, and nothing in this\nletter agreement shall prohibit you or any of your Representatives from purchasing any such debt securities.\nEach party hereto understands and agrees that no contract or agreement providing for any transaction involving the Company shall be deemed\nto exist between you and the Company unless and until a final definitive agreement has been executed and delivered, and each party hereby waives,\nin advance, any claims (including, without limitation, claims for breach of contract) in connection with any transaction involving the Company\nunless and until you and the Company shall have entered into a final definitive agreement. You and the Company also agree that unless and until\na\nfinal definitive agreement regarding a transaction between the Company and you has been executed and delivered, neither the Company nor you will\nbe under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this letter agreement or any other written or oral\nexpression with respect to such transaction, except for the matters specifically agreed to herein or therein. You further acknowledge and agree that\nthe Company reserves the right, in its sole discretion, to reject any and all proposals made by you or any of your Representatives with regard to a\ntransaction between the Company and you, and to terminate discussions and negotiations with you at any time and for any reason or no reason. You\nfurther understand that (i) the Company and its Representatives shall be free to conduct any process for any transaction involving the Company,\nif\nand as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a\npreliminary\nor\ndefinitive agreement without prior notice to you or any other person); and (ii) any procedures relating to such process or transaction\nmay be changed at any time without notice to you or any other person. Each party hereto further understands that it shall not have any claims\nwhatsoever against the other party, its Representatives or any of their respective directors, officers, stockholders, owners, partners, employees,\naffiliates or agents arising out of or relating to a transaction involving the Company (other than those as against the\n6\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 7\nparties to a final definitive agreement with you in accordance with the terms thereof) nor, unless a final definitive agreement is entered into with you,\nagainst any third party with whom a transaction is entered into. Neither this paragraph nor any other provision in this letter agreement\ncan\nbe\nwaived\nor amended except by written consent of both parties, which consent shall specifically refer to this paragraph (or such provision) and explicitly make\nsuch waiver or amendment. For the purposes of this paragraph, the term "definitive agreement" shall not include an executed letter of intent or any\nother\npreliminary written agreement, nor does it include any written or verbal acceptance by the Company of any offer or bid on your part.\nNotwithstanding the foregoing, nothing in this paragraph shall limit the rights or obligations of either party under this letter agreement.\nIt is understood and agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power\nor privilege hereunder.\nYou acknowledge and agree that the Company has not granted you any license, copyright or similar right with respect to any of the Evaluation\nMaterial.\nYou recognize and acknowledge the competitive value and confidential nature of the Evaluation Material and that irreparable damage will\nresult to the Company if information contained therein or derived therefrom is disclosed to any third party except as herein provided or is used for\nany purpose other than the evaluation of a possible negotiated transaction with the Company. It is further understood and agreed that money damages\nwould not be a sufficient remedy for any breach of this letter agreement by you or any of your Representatives and that the Company shall be\nentitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed\nto\nbe the exclusive remedies for a breach by you of this letter agreement but shall be in addition to all other remedies available at law or equity\nto\nthe\nCompany. In the event of litigation relating to this letter agreement, if a court of competent jurisdiction determines in a final, nonappealable order\nthat a party has breached this letter agreement, then the non-prevailing party shall be liable and pay to the prevailing party the reasonable legal\nfees\nand disbursements incurred by prevailing party in connection with such litigation, including any appeal therefrom.\nThis letter agreement is for the benefit of each party hereto, and shall be governed by and construed in accordance with the laws of the State of\nNew York, without giving effect to the principles of conflicts of law thereof. Each party hereby irrevocably and unconditionally consents to submit\nto the exclusive jurisdiction of the courts of the State of New York and the United States of America located in the State of New York for any\nactions, suits or proceedings arising out of or relating to this letter agreement and the transactions contemplated hereby (and agrees not to commence\nany action, suit or proceeding relating thereto except in such courts), and each party further agrees that service of any process, summons, notice or\ndocument by Federal Express, DHL, UPS, Airborne or any other recognized international courier service to its respective address set forth in this\nletter agreement shall be effective service of process for any action, suit or proceeding brought against such party in any such court. Each party\nhereto hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or\n7\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 8\nproceeding arising out of this letter agreement or the transactions contemplated hereby, in the courts of the State of New York or the United States of\nAmerica located in the State of New York, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such\ncourt that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\nThe rights of the Company under this letter agreement may be assigned in whole or in part to any purchaser of the Company, which purchaser\nshall be entitled to enforce this letter agreement to the same extent and in the same manner as the Company is entitled to enforce this letter\nagreement. You may not assign your rights or obligations under this letter agreement to any person or entity without the prior written consent of the\nCompany. Subject to the foregoing, this letter agreement shall be binding on the respective successors and permitted assigns of the parties hereto.\nThe letter agreement contains the entire agreement between you and the Company concerning the subject matter hereof, and no modification\nof this letter agreement or waiver of the terms and conditions hereof will be binding unless approved in writing by you and the Company.\nThis letter agreement shall expire 24 months from the date hereof.\nFor the convenience of the parties, this letter agreement may be executed by facsimile and in counterparts, each of which shall be deemed to be\nan original, and both of which taken together, shall constitute one agreement binding on both parties.\n[Remainder of Page Intentionally Left Blank; Signature Page to Follow]\n8\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nEurand N.V.\nBy: /s/ Gearoid Faherty\nName: Gearoid Faherty\nTitle: Chief Executive Officer\nAccepted and agreed as of the date first written above:\nTPG Capital, L.P.\nBy: TPG Capital Advisors, LLC\nBy: /s/ Ronald Cami\nName: Ronald Cami\nTitle: Vice President\nAxcan Pharma Inc.\nBy: /s/ Richard Tarte\nName: Richard Tarte\nTitle: General Counsel EX-99.(D)(4) 8 dex99d4.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nEURAND N.V.\nOLYMPIC PLAZA\nFRED. ROESKESTRAAT 123\n1076 EE AMSTERDAM, THE NETHERLANDS\nJuly 13, 2010\nCONFIDENTIAL\nTPG Capital, L.P.\nAttn: Ronald Cami\n301 Commerce Street\nSuite 3300\nFort Worth, TX 76102\nAxcan Pharma Inc.\nAttn: Richard Tarte\n597 Laurier Boulevard\nMont-Saint-Hilaire, Quebec J3H 6C4\nCanada\nLadies and Gentlemen:\nIn connection with TPG Capital, L.P. (“TPG”) and Axcan Pharma Inc. (“Axcan”) (Axcan and TPG collectively, “you” or “your”) considering a\npossible negotiated tender offer/merger or acquisition of, or similar negotiated transaction (a “transaction”) with, Eurand N.V. (the “Company”)\nand/or its affiliates, you have requested, and the Company is prepared to make available to you, certain information concerning its business,\noperations, assets and liabilities. As a condition to such information being furnished to you and your affiliates, and your and their respective\ndirectors, officers, employees, commercial banking institutions of recognized standing as potential sources of debt financing, agents, or advisors\n(including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, “Representatives”), you agree to\ntreat any information concerning the Company (whether prepared by the Company, its advisors or otherwise and irrespective of the form of\ncommunication) which has been or is furnished to you or to your Representatives by or on behalf of the Company in relation to the potential\ntransaction (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement, and to take or\nabstain from taking certain other actions hereinafter set forth.\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 2\nThe term “Evaluation Material” shall be deemed to include any notes, analyses, reports, compilations, studies, interpretations, memoranda or\nother documents (regardless of the form thereof) prepared by you or your Representatives which contain, reflect or are based upon, in whole or in\npart, any information furnished to you or your Representatives pursuant hereto. The term “Evaluation Material” does not include information which\n(i) is or becomes generally available to the public other than as a result of a disclosure directly or indirectly by you or your Representatives in\nviolation of this letter agreement; (ii) was within your possession or the possession of any of your Representatives prior to it being furnished to you\nby or on behalf of the Company pursuant hereto, provided that such information is not known by you to be subject to another confidentiality\nagreement with or other contractual obligation of confidentiality to the Company with respect to such information; (iii) becomes available to you or\nany of your Representatives on a non-confidential basis from a source other than the Company or any of its Representatives, provided that such\nsource is not known by you to be bound by a confidentiality agreement with or other contractual obligation of confidentiality to the Company with\nrespect to such information; or (iv) is independently developed by you or your Representatives without reference to or reliance on any of the\nEvaluation Material, as evidenced by written evidence of the same.\nYou hereby agree that (i) you and your Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible\ntransaction between the Company and you, (ii) the Evaluation Material will be kept confidential and (iii) you and your Representatives will not\ndisclose any of the Evaluation Material in any manner whatsoever; provided, however, that (x) you may make any disclosure of such information to\nwhich the Company gives its prior written consent; and (y) any of such information may be disclosed to your Representatives who need to know\nsuch information for the sole purpose of evaluating a possible transaction with the Company, provided that each such Representative agrees to treat\nsuch information as confidential in accordance with the terms of this letter agreement. For the avoidance of doubt, TPG and Axcan acknowledge that\nAxcan and the Company enjoy a long-standing and valued commercial relationship based on formalized contractual arrangements, and accordingly\nyou further agree that you and your Representatives shall not use the Evaluation Material (a) in connection with the negotiating or re-negotiating of\nany of the commercial terms of any agreement or arrangement between Axcan and the Company, or (b) in connection with any actions, suits,\nproceedings or claims relating to any commercial agreements or arrangements between Axcan and the Company. For the avoidance of doubt,\n“Evaluation Material” shall not include information furnished or to be furnished by or on behalf of the Company in relation to activities covered by\nsuch contractual arrangements, which information shall remain subject to the confidentiality obligations under said contractual arrangements. You\nshall be responsible for any breach by your Representatives of the terms of this letter agreement that are applicable to your Representatives, and you\nagree, at your sole expense, to take commercially reasonable measures to restrain your Representatives from prohibited or unauthorized disclosure or\nuse of the Evaluation Material in breach of this letter agreement. As a further condition to such Evaluation Material being furnished to any\ncommercial banking institution of recognized standing as a potential source of debt financing, such banking institution shall, prior to receiving such\nEvaluation Material, execute a written agreement with TPG and/or Axcan agreeing to be bound by the terms of this letter agreement that are\napplicable to your Representatives.\n-2-\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 3\nIn addition, except as otherwise required by applicable law, regulation or legal process the parties agree that, without the prior written consent\nof the other party or as otherwise permitted by this letter agreement, the parties and their Representatives will not disclose to any other person the\nexistence of this letter agreement, the fact that the Evaluation Material has been made available to you, that discussions or negotiations are taking\nplace concerning a possible transaction involving the Company or any of the terms, conditions or other facts with respect thereto (including the\nstatus thereof). Without limiting the generality of the foregoing, you further agree that, without the prior written consent of the Company, you will\nnot, directly or indirectly, enter into any agreement, arrangement or understanding (other than with your Representatives in their capacities as such),\nor any discussions which might lead to such agreement, arrangement or understanding (other than with your Representatives in their capacities as\nsuch), with any person regarding a possible transaction involving the Company (except in respect of any possible financing of such transaction). The\nterm “person” as used in this letter agreement shall be broadly interpreted to include the media and any governmental representative or authority,\ncorporation, company, partnership, joint venture, group, limited liability company, other entity or individual. Notwithstanding the foregoing, the\nCompany may disclose the fact that it is pursuing strategic alternatives; provided, however, that, except to the extent required by applicable law,\nregulation or legal process (including the rules of applicable stock exchanges), the Company will not, without your prior written consent, identify\nyou by name or identifiable description as being involved in discussions or negotiations concerning the transaction contemplated herein to any\nperson other than directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and\nfinancial advisors) of the Company who reasonably require access to such information in connection with such transaction.\nIn the event that you or any of your Representatives are requested or required (by any applicable law or regulation or pursuant to legal process\nsuch as oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other\nsimilar process) to disclose any of the Evaluation Material or the existence of this letter agreement, you shall provide the Company with prompt\nwritten notice, to the extent legally permissible, of any such request or requirement and the Company may seek a protective order or other\nappropriate remedy and/or waive compliance with the provisions of this letter agreement. If you or any of your Representatives are on the advice of\ncounsel, legally required to disclose Evaluation Material, you or your Representatives may, without liability hereunder, disclose to such tribunal or\nother entity only that portion of the Evaluation Material which such counsel advises you is legally required to be disclosed, provided that you\nexercise commercially reasonable efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by reasonably\ncooperating with the Company to request an appropriate protective order or other reliable assurance that confidential treatment will be accorded the\nEvaluation Material.\nIf you decide that you do not wish to proceed with a transaction with the Company, you will promptly inform the Company of that decision. At\nany time upon the written request of the Company for any reason, you will promptly (and in no event later than five business days after such request)\ndeliver to the Company or destroy all written Evaluation Material (and all copies\n-3-\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 4\nthereof) furnished to you or your Representatives by or on behalf of the Company pursuant hereto and you and your Representatives shall not retain\nany copies, extracts or other reproductions in whole or in part of such material. In the event of such a request, all Evaluation Material prepared by\nyou or your Representatives shall be destroyed and no copy thereof (including that stored in any computer or similar device) shall be retained.\nNotwithstanding the foregoing, you and your Representatives (i) may each retain one (1) copy of the Evaluation Material to the extent that such\nretention is required to demonstrate compliance with applicable law, rule, regulation or professional standards (as applicable to attorneys and\naccountants), or to comply with a bona fide document retention policy, provided, however, that any such information so retained shall be segregated\nto your or your Representatives’, as the case may be, legal department or internal compliance department and held in compliance with the terms of\nthis Agreement and (ii) shall, to the extent that (i) above is inapplicable to Evaluation Material that is electronically stored, destroy such\nelectronically stored Evaluation Material only to the extent that it is reasonably practical to do so. Upon the Company’s written request, you shall\nconfirm in writing your compliance with the terms of this paragraph. Notwithstanding the return or destruction of the Evaluation Material, you and\nyour Representatives will continue to be bound by your obligations of confidentiality and other obligations hereunder in accordance with the terms\nhereof.\nYou understand and acknowledge that neither the Company nor any of its Representatives (including, without limitation, any investment bank\nthat the Company informs you is acting as its representative in connection with the possible transaction (“IBANK”)), or any of their respective\ndirectors, officers, stockholders, partners, owners, employees, affiliates or agents make any representation or warranty, express or implied, as to the\naccuracy or completeness of the Evaluation Material. You agree that neither the Company nor any of its Representatives (including, without\nlimitation, IBANK), or any of their respective directors, officers, stockholders, partners, owners, employees, affiliates or agents shall have any\nliability to you or to any of your Representatives or any other person relating to or resulting from the use of the Evaluation Material or any errors\ntherein or omissions therefrom. Only those representations or warranties which are made in a written agreement regarding any transactions\ncontemplated hereby, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, you and we understand and agree that we\nand you have a commonality of interest with respect to such matters and it is our and your desire, intention and mutual understanding that the sharing\nof such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under\nthe attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is entitled to protection under the\nattorney-client privilege, work product doctrine and other applicable privilege shall remain entitled to such protection under these privileges, this\nletter agreement, and under the joint defense doctrine.\nIn addition, you hereby acknowledge that you are aware (and that prior to their receipt of any Evaluation Material your Representatives who\nare apprised of a possible transaction have\n-4-\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 5\nbeen or will be advised) that the United States and other applicable securities laws generally prohibit any person who has material, non-public\ninformation about a company obtained directly or indirectly from that company from purchasing or selling securities of such company or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase\nor sell such securities.\nYou agree that all communications regarding a possible transaction regarding the Company, all requests for additional information, facility\ntours or management meetings and all discussions or questions regarding procedures with respect to a possible transaction, will be submitted or\ndirected to Gearoid Faherty or such other person or persons as may designated by the Company in writing. Without the express prior consent of the\nCompany, you agree that you will not, directly or indirectly, contact or communicate with any person known by you to be an officer, employee or\nagent of the Company.\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of 12 months from the date hereof,\nneither you nor any of your affiliates will solicit to employ, (i) any of the officers of the Company or (ii) any of the other employees of the Company\nwith whom you have come into contact during the course of due diligence, in each case so long as they are employed by the Company, without\nobtaining the prior written consent of the Company; provided that the placement of general advertisements (including, without limitation, any\nrecruitment efforts conducted by any recruitment agency, provided that neither you nor such of your affiliates have directed such recruitment efforts\nat such person) shall not constitute a breach of this provision.\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, during the period commencing on the date of this\nletter agreement and ending on the 18 month anniversary of the date of this letter agreement, neither you nor any of your Representatives shall,\nwithout the prior written consent of an authorized officer of the Company or its board of directors:\n(a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any Voting Securities or direct or indirect\nrights to acquire any Voting Securities of the Company or any subsidiary thereof, or any assets of the Company or any subsidiary or division thereof\n(provided, however, that the foregoing shall not be understood to limit your ability to propose or enter into other ordinary course commercial\ntransactions with the Company, including licensing, marketing, production and similar arrangements, that do not involve a sale, transfer or license\n(other than a limited license) of all or any substantial portion of the stock, assets or business of the Company or its subsidiaries);\n(b) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the rules of the\nSecurities and Exchange Commission (the “SEC”)), or seek to advise or influence any person or entity with respect to the voting of, any Voting\nSecurities of the Company;\n-5-\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 6\n(c) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary\ntransaction involving the Company or any of its securities or assets;\n(d) form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, in\nconnection with any of the foregoing;\n(e) otherwise act or seek to control or influence the management, board of directors or policies of the Company; or\n(f) take any action that could reasonably be expected to require the Company to make a public announcement regarding the possibility of any\nof the events described in clauses (a) through (e) above.\nFor purposes of this letter agreement, “Voting Securities” shall mean, at any time, shares of any class of capital stock of the Company which\nare then entitled to vote generally in the election of directors; provided, that for purposes of this definition any securities which at such time are\nconvertible or exchangeable into or exercisable for shares of common stock of the Company shall be deemed to have been so converted, exchanged\nor exercised. For the avoidance of doubt, “Voting Securities” does not include any debt securities of the Company or its affiliates, and nothing in this\nletter agreement shall prohibit you or any of your Representatives from purchasing any such debt securities.\nEach party hereto understands and agrees that no contract or agreement providing for any transaction involving the Company shall be deemed\nto exist between you and the Company unless and until a final definitive agreement has been executed and delivered, and each party hereby waives,\nin advance, any claims (including, without limitation, claims for breach of contract) in connection with any transaction involving the Company\nunless and until you and the Company shall have entered into a final definitive agreement. You and the Company also agree that unless and until a\nfinal definitive agreement regarding a transaction between the Company and you has been executed and delivered, neither the Company nor you will\nbe under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this letter agreement or any other written or oral\nexpression with respect to such transaction, except for the matters specifically agreed to herein or therein. You further acknowledge and agree that\nthe Company reserves the right, in its sole discretion, to reject any and all proposals made by you or any of your Representatives with regard to a\ntransaction between the Company and you, and to terminate discussions and negotiations with you at any time and for any reason or no reason. You\nfurther understand that (i) the Company and its Representatives shall be free to conduct any process for any transaction involving the Company, if\nand as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a\npreliminary or definitive agreement without prior notice to you or any other person); and (ii) any procedures relating to such process or transaction\nmay be changed at any time without notice to you or any other person. Each party hereto further understands that it shall not have any claims\nwhatsoever against the other party, its Representatives or any of their respective directors, officers, stockholders, owners, partners, employees,\naffiliates or agents arising out of or relating to a transaction involving the Company (other than those as against the\n-6-\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 7\nparties to a final definitive agreement with you in accordance with the terms thereof) nor, unless a final definitive agreement is entered into with you,\nagainst any third party with whom a transaction is entered into. Neither this paragraph nor any other provision in this letter agreement can be waived\nor amended except by written consent of both parties, which consent shall specifically refer to this paragraph (or such provision) and explicitly make\nsuch waiver or amendment. For the purposes of this paragraph, the term “definitive agreement” shall not include an executed letter of intent or any\nother preliminary written agreement, nor does it include any written or verbal acceptance by the Company of any offer or bid on your part.\nNotwithstanding the foregoing, nothing in this paragraph shall limit the rights or obligations of either party under this letter agreement.\nIt is understood and agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power\nor privilege hereunder.\nYou acknowledge and agree that the Company has not granted you any license, copyright or similar right with respect to any of the Evaluation\nMaterial.\nYou recognize and acknowledge the competitive value and confidential nature of the Evaluation Material and that irreparable damage will\nresult to the Company if information contained therein or derived therefrom is disclosed to any third party except as herein provided or is used for\nany purpose other than the evaluation of a possible negotiated transaction with the Company. It is further understood and agreed that money damages\nwould not be a sufficient remedy for any breach of this letter agreement by you or any of your Representatives and that the Company shall be\nentitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed\nto be the exclusive remedies for a breach by you of this letter agreement but shall be in addition to all other remedies available at law or equity to the\nCompany. In the event of litigation relating to this letter agreement, if a court of competent jurisdiction determines in a final, nonappealable order\nthat a party has breached this letter agreement, then the non-prevailing party shall be liable and pay to the prevailing party the reasonable legal fees\nand disbursements incurred by prevailing party in connection with such litigation, including any appeal therefrom.\nThis letter agreement is for the benefit of each party hereto, and shall be governed by and construed in accordance with the laws of the State of\nNew York, without giving effect to the principles of conflicts of law thereof. Each party hereby irrevocably and unconditionally consents to submit\nto the exclusive jurisdiction of the courts of the State of New York and the United States of America located in the State of New York for any\nactions, suits or proceedings arising out of or relating to this letter agreement and the transactions contemplated hereby (and agrees not to commence\nany action, suit or proceeding relating thereto except in such courts), and each party further agrees that service of any process, summons, notice or\ndocument by Federal Express, DHL, UPS, Airborne or any other recognized international courier service to its respective address set forth in this\nletter agreement shall be effective service of process for any action, suit or proceeding brought against such party in any such court. Each party\nhereto hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or\n-7-\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 8\nproceeding arising out of this letter agreement or the transactions contemplated hereby, in the courts of the State of New York or the United States of\nAmerica located in the State of New York, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such\ncourt that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\nThe rights of the Company under this letter agreement may be assigned in whole or in part to any purchaser of the Company, which purchaser\nshall be entitled to enforce this letter agreement to the same extent and in the same manner as the Company is entitled to enforce this letter\nagreement. You may not assign your rights or obligations under this letter agreement to any person or entity without the prior written consent of the\nCompany. Subject to the foregoing, this letter agreement shall be binding on the respective successors and permitted assigns of the parties hereto.\nThe letter agreement contains the entire agreement between you and the Company concerning the subject matter hereof, and no modification\nof this letter agreement or waiver of the terms and conditions hereof will be binding unless approved in writing by you and the Company.\nThis letter agreement shall expire 24 months from the date hereof.\nFor the convenience of the parties, this letter agreement may be executed by facsimile and in counterparts, each of which shall be deemed to be\nan original, and both of which taken together, shall constitute one agreement binding on both parties.\n[Remainder of Page Intentionally Left Blank; Signature Page to Follow]\n-8-\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nEurand N.V.\nBy: /s/ Gearóid Faherty\nName: Gearóid Faherty\nTitle: Chief Executive Officer\nAccepted and agreed as of the date first written above:\nTPG Capital, L.P.\nBy: TPG Capital Advisors, LLC\nBy: /s/ Ronald Cami\nName: Ronald Cami\nTitle: Vice President\nAxcan Pharma Inc.\nBy: /s/ Richard Tarte\nName: Richard Tarte\nTitle: General Counsel d8b971e17298b4426e0e8ed07bcaf50f.pdf effective_date jurisdiction party term EXHIBIT D\nFORM OF NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“AGREEMENT”) is effective as of the day of\n, 2010 by and between Motorola, Inc., a Delaware\ncorporation with offices located at 1303 East Algonquin Road, Schaumburg, Illinois 60196 (hereafter “MOTOROLA”), and Iridium Satellite LLC, A\nDelaware limited liability company with principal offices located at 1750 Tysons Boulevard, Suite 1400, McLean, Virginia 22102 (hereafter\n“IRIDIUM”).\nA. Background. The parties or their affiliates are parties to the following agreements, among others: (i) the Intellectual Property Rights Agreement,\ndated December 11, 2000 (“FIRST GENERATION IPR AGREEMENT”); (ii) the System Intellectual Property Rights Amendment and Agreement,\ndated\n, 2010 (“SYSTEM IPR AGREEMENT”); (iii) the Subscriber Equipment Technology Agreement (Design), dated September 30, 2002\n(“SETA (DESIGN)”); (iv) the Subscriber Equipment Technology Agreement (Manufacturing), dated September 30, 2002 (“SETA (MFG)”); and\n(v) the Supplemental Subscriber Equipment Technology Amendment and Agreement, dated\n, 2010 (“SSETA”), which shall be collectively\nreferred to as the “IP AGREEMENTS.”\nB. Definition. “PROPRIETARY INFORMATION” means information disclosed by either party (“DISCLOSING PARTY”) to or otherwise received\nby the other party (“RECIPIENT”) pursuant to any of the IP AGREEMENTS that the DISCLOSING PARTY at the time of disclosure identifies in\nwriting as confidential and/or proprietary by means of a legend, marking, stamp or other positive written notice identifying the information to be\nconfidential and/or proprietary, or information disclosed orally, visually, or by other non-written manner by the DISCLOSING PARTY to the\nRECIPIENT, where the RECIPIENT was informed that the information is confidential in nature, or any other information disclosed by the\nDISCLOSING PARTY to the RECIPIENT in any manner that the RECIPIENT should reasonably recognize as being of a confidential nature.\nC. Use of Proprietary Information. PROPRIETARY INFORMATION disclosed hereunder may be used only during the term of this\nAGREEMENT and only for purposes set forth in or otherwise permitted by the IP AGREEMENTS. This AGREEMENT is entered into solely to\nprovide for the treatment of PROPRIETARY INFORMATION to the extent disclosed hereunder or under the IP AGREEMENTS. Neither party has\nan obligation to supply PROPRIETARY INFORMATION hereunder.\nD. Protection of Proprietary Information. It is agreed that for a period of ten (10) years following the termination of the IP AGREEMENT\npursuant to which PROPRIETARY INFORMATION was disclosed, the RECIPIENT will use such PROPRIETARY INFORMATION only for the\npurpose(s) provided in Section C above and shall make reasonable efforts to preserve in confidence such PROPRIETARY INFORMATION and\nprevent disclosure thereof to third parties. The RECIPIENT agrees that it will use the same reasonable efforts to protect PROPRIETARY\nINFORMATION as are used to protect its own proprietary information, and such degree of care shall include at least the use of reasonable care.\nDisclosures of such information shall be restricted to those employees, contractors, customers, agents, and permitted sublicensees of the RECIPIENT\nwho are participating in the efforts provided in Paragraph C above, who have a need to know such information, and who have been made aware of\nand consent to abide by restrictions at least as restrictive as those contained herein concerning the use of such PROPRIETARY INFORMATION.\nCONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE\nINFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF\nTHIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.\nE. Exceptions. The obligation to protect PROPRIETARY INFORMATION, and the liability for unauthorized disclosure or use of PROPRIETARY\nINFORMATION, shall not apply with respect to such information which is:\n(i) published or otherwise is or becomes available to the public other than by breach of this AGREEMENT; or\n(ii) rightly received by the RECIPIENT hereunder from a third party without confidential limitation; or\n(iii) independently known by or independently developed by the RECIPIENT without the use of PROPRIETARY INFORMATION; or\n(iv) approved in writing by the DISCLOSING PARTY for public release by the RECIPIENT.\nIn addition, in the event that the RECIPIENT is required to disclose PROPRIETARY INFORMATION pursuant to any applicable law, regulation\n(including SEC regulations and rules), stock exchange rule or any other market or reporting system, or by legal process or pursuant to applicable\nprofessional standards, the RECIPIENT may do so provided that the RECIPIENT has, if possible, notified the DISCLOSING PARTY promptly\nupon learning of the possibility that disclosure could be required pursuant to any such law, regulation, or legal order and has, to the extent practicable\nor permitted, given the DISCLOSING PARTY a reasonable opportunity to contest or limit the scope of such required disclosure and has cooperated\nwith the DISCLOSING PARTY toward this end.\nF. Term and Termination. The term of this AGREEMENT shall coincide with the term of the last to expire or terminate of the IP AGREEMENTS.\nTermination of the IP AGREEMENTS shall not, however, affect the rights and obligations contained herein with respect to PROPRIETARY\nINFORMATION disclosed hereunder prior to termination.\nG. No Transfer or License of Intellectual Property. Except as expressly provided herein, neither the execution and delivery of this AGREEMENT,\nnor the furnishing of any PROPRIETARY INFORMATION, shall be construed as granting either expressly or by implication, estoppel or otherwise,\nany ownership rights or rights by license or otherwise under any invention, improvement, discovery or patent, trade secret, know-how, work of\nauthorship, software program, or other intellectual property now or hereafter owned or under the control of a party disclosing PROPRIETARY\nINFORMATION hereunder.\nH. Transfer/Assignment. Except as expressly permitted in any IP AGREEMENT, this AGREEMENT and the rights and obligations hereunder may\nnot be transferred or assigned by one party without the prior written approval of the other party hereto.\nI. U .S. Laws and Regulations. Except as expressly permitted in the IP AGREEMENTS, the RECIPIENT shall not export, directly or indirectly, any\nPROPRIETARY INFORMATION disclosed under this AGREEMENT to any country which the U.S. Government at the time of export requires an\nexport license or other Government approval without first obtaining such license or approval. The RECIPIENT shall first obtain the written consent\nof the DISCLOSING PARTY prior to submitting any request for authority to export any such PROPRIETARY INFORMATION.\nCONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE\nINFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF\nTHIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.\nD-2\nJ. Applicable Law. The law of the State of Illinois, U.S .A ., except for its choice of laws rules, shall govern this AGREEMENT.\nK. No Formal Business Relationship. This AGREEMENT shall not be construed as a teaming, joint venture or other such arrangement; rather, the\nparties hereto expressly agree that this AGREEMENT is for the purpose of protecting PROPRIETARY INFORMATION only.\nL. No Obligation to Support; No Representation. PROPRIETARY INFORMATION provided hereunder is provided “AS IS”, without any\nwarranty of any kind, except as expressly provided in the IP AGREEMENTS. Neither party nor their officers, directors, employees, advisors or\nagents make any representation or warranty as to the accuracy or completeness of any PROPRIETARY INFORMATION which may be furnished\nhereunder, and none of such officers, directors, employees, advisors or agents are authorized to make any such representation or warranty. Neither\nparty nor their officers, directors, employees, advisors or agents shall have any liability to the RECIPIENT or any other person resulting from the use\nof the PROPRIETARY INFORMATION, or any inaccuracy or incompleteness of the PROPRIETARY INFORMATION.\nM. Entire Agreement. This AGREEMENT contains the entire understanding between the parties relative to the protection of PROPRIETARY\nINFORMATION and supersedes all prior and collateral communication, reports, and understanding between the parties in respect thereto. No\nchange, modification, alteration, or addition to any provision hereof shall be binding unless in writing and signed by authorized representatives of\nboth parties.\nN. Binding Effect. This AGREEMENT shall be binding upon each party, its affiliates, respective employees, agents, representative, successors, and\nassigns.\nO. Headings. Paragraph headings are included in this AGREEMENT for purposes of information and ease of use only and shall not be used in\ninterpreting its terms.\nAGREED AND ACCEPTED BY:\nMotorola, Inc.\nIridium Satellite LLC\nTyped\nName:\nTyped\nName:\nBy:\nBy:\nTitle:\nTitle:\nDate:\nDate:\nCONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE\nINFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF\nTHIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.\nD-3 EXHIBIT D\nFORM OF NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“AGREEMENT?”) is effective as of the __ day of 2010 by and between Motorola, Inc., a Delaware\ncorporation with offices located at 1303 East Algonquin Road, Schaumburg, Illinois 60196 (hereafter “MOTOROLA”), and Iridium Satellite LLC, A\nDelaware limited liability company with principal offices located at 1750 Tysons Boulevard, Suite 1400, McLean, Virginia 22102 (hereafter\n“IRIDIUM”).\n \nA. Background. The parties or their affiliates are parties to the following agreements, among others: (i) the Intellectual Property Rights Agreement,\ndated December 11, 2000 (“FIRST GENERATION IPR AGREEMENT™); (ii) the System Intellectual Property Rights Amendment and Agreement,\ndated , 2010 (“SYSTEM IPR AGREEMENT”); (iii) the Subscriber Equipment Technology Agreement (Design), dated September 30, 2002\n(“SETA (DESIGN)”); (iv) the Subscriber Equipment Technology Agreement (Manufacturing), dated September 30, 2002 (“SETA (MFG)”); and\n(v) the Supplemental Subscriber Equipment Technology Amendment and Agreement, dated , 2010 (“SSETA”), which shall be collectively\nreferred to as the “IP AGREEMENTS.”\nB. Definition. “PROPRIETARY INFORMATION” means information disclosed by either party (“DISCLOSING PARTY”) to or otherwise received\nby the other party (“RECIPIENT”) pursuant to any of the IP AGREEMENTS that the DISCLOSING PARTY at the time of disclosure identifies in\nwriting as confidential and/or proprietary by means of a legend, marking, stamp or other positive written notice identifying the information to be\nconfidential and/or proprietary, or information disclosed orally, visually, or by other non-written manner by the DISCLOSING PARTY to the\nRECIPIENT, where the RECIPIENT was informed that the information is confidential in nature, or any other information disclosed by the\nDISCLOSING PARTY to the RECIPIENT in any manner that the RECIPIENT should reasonably recognize as being of a confidential nature.\nC. Use of Proprietary Information. PROPRIETARY INFORMATION disclosed hereunder may be used only during the term of this\nAGREEMENT and only for purposes set forth in or otherwise permitted by the IP AGREEMENTS. This AGREEMENT is entered into solely to\nprovide for the treatment of PROPRIETARY INFORMATION to the extent disclosed hereunder or under the IP AGREEMENTS. Neither party has\nan obligation to supply PROPRIETARY INFORMATION hereunder.\nD. Protection of Proprietary Information. It is agreed that for a period of ten (10) years following the termination of the IP AGREEMENT\npursuant to which PROPRIETARY INFORMATION was disclosed, the RECIPIENT will use such PROPRIETARY INFORMATION only for the\npurpose(s) provided in Section C above and shall make reasonable efforts to preserve in confidence such PROPRIETARY INFORMATION and\nprevent disclosure thereof to third parties. The RECIPIENT agrees that it will use the same reasonable efforts to protect PROPRIETARY\nINFORMATION as are used to protect its own proprietary information, and such degree of care shall include at least the use of reasonable care.\nDisclosures of such information shall be restricted to those employees, contractors, customers, agents, and permitted sublicensees of the RECIPIENT\nwho are participating in the efforts provided in Paragraph C above, who have a need to know such information, and who have been made aware of\nand consent to abide by restrictions at least as restrictive as those contained herein concerning the use of such PROPRIETARY INFORMATION.\nCONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE\nINFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF\nTHIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.\nE. Exceptions. The obligation to protect PROPRIETARY INFORMATION, and the liability for unauthorized disclosure or use of PROPRIETARY\nINFORMATION, shall not apply with respect to such information which is:\n(i) published or otherwise is or becomes available to the public other than by breach of this AGREEMENT; or\n(ii) rightly received by the RECIPIENT hereunder from a third party without confidential limitation; or\n(iii) independently known by or independently developed by the RECIPIENT without the use of PROPRIETARY INFORMATION; or\n(iv) approved in writing by the DISCLOSING PARTY for public release by the RECIPIENT.\nIn addition, in the event that the RECIPIENT is required to disclose PROPRIETARY INFORMATION pursuant to any applicable law, regulation\n(including SEC regulations and rules), stock exchange rule or any other market or reporting system, or by legal process or pursuant to applicable\nprofessional standards, the RECIPIENT may do so provided that the RECIPIENT has, if possible, notified the DISCLOSING PARTY promptly\nupon learning of the possibility that disclosure could be required pursuant to any such law, regulation, or legal order and has, to the extent practicable\nor permitted, given the DISCLOSING PARTY a reasonable opportunity to contest or limit the scope of such required disclosure and has cooperated\nwith the DISCLOSING PARTY toward this end.\nF. Term and Termination. The term of this AGREEMENT shall coincide with the term of the last to expire or terminate of the [P AGREEMENTS.\nTermination of the IP AGREEMENTS shall not, however, affect the rights and obligations contained herein with respect to PROPRIETARY\nINFORMATION disclosed hereunder prior to termination.\nG. No Transfer or License of Intellectual Property. Except as expressly provided herein, neither the execution and delivery of this AGREEMENT,\nnor the furnishing of any PROPRIETARY INFORMATION, shall be construed as granting either expressly or by implication, estoppel or otherwise,\nany ownership rights or rights by license or otherwise under any invention, improvement, discovery or patent, trade secret, know-how, work of\nauthorship, software program, or other intellectual property now or hereafter owned or under the control of a party disclosing PROPRIETARY\nINFORMATION hereunder.\nH. Transfer/Assignment. Except as expressly permitted in any [P AGREEMENT, this AGREEMENT and the rights and obligations hereunder may\nnot be transferred or assigned by one party without the prior written approval of the other party hereto.\nI. U.S. Laws and Regulations. Except as expressly permitted in the IP AGREEMENTS, the RECIPIENT shall not export, directly or indirectly, any\nPROPRIETARY INFORMATION disclosed under this AGREEMENT to any country which the U.S. Government at the time of export requires an\nexport license or other Government approval without first obtaining such license or approval. The RECIPIENT shall first obtain the written consent\nof the DISCLOSING PARTY prior to submitting any request for authority to export any such PROPRIETARY INFORMATION.\nCONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE\nINFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF\nTHIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.\nD-2\nJ. Applicable Law. The law of the State of Illinois, U.S.A., except for its choice of laws rules, shall govern this AGREEMENT.\nK. No Formal Business Relationship. This AGREEMENT shall not be construed as a teaming, joint venture or other such arrangement; rather, the\nparties hereto expressly agree that this AGREEMENT is for the purpose of protecting PROPRIETARY INFORMATION only.\nL. No Obligation to Support; No Representation. PROPRIETARY INFORMATION provided hereunder is provided “AS IS”, without any\nwarranty of any kind, except as expressly provided in the IP AGREEMENTS. Neither party nor their officers, directors, employees, advisors or\nagents make any representation or warranty as to the accuracy or completeness of any PROPRIETARY INFORMATION which may be furnished\nhereunder, and none of such officers, directors, employees, advisors or agents are authorized to make any such representation or warranty. Neither\nparty nor their officers, directors, employees, advisors or agents shall have any liability to the RECIPIENT or any other person resulting from the use\nof the PROPRIETARY INFORMATION, or any inaccuracy or incompleteness of the PROPRIETARY INFORMATION.\nM. Entire Agreement. This AGREEMENT contains the entire understanding between the parties relative to the protection of PROPRIETARY\nINFORMATION and supersedes all prior and collateral communication, reports, and understanding between the parties in respect thereto. No\nchange, modification, alteration, or addition to any provision hereof shall be binding unless in writing and signed by authorized representatives of\nboth parties.\nN. Binding Effect. This AGREEMENT shall be binding upon each party, its affiliates, respective employees, agents, representative, successors, and\nassigns.\nO. Headings. Paragraph headings are included in this AGREEMENT for purposes of information and ease of use only and shall not be used in\ninterpreting its terms.\nAGREED AND ACCEPTED BY:\nMotorola, Inc. Iridium Satellite LL.C\nTyped Typed\nName: Name:\nBy: By:\nTitle: Title:\nDate: Date:\nCONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE\nINFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF\nTHIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.\nD-3 EXHIBIT D\nFORM OF NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement ("AGREEMENT") is effective as of the day of 2010 by and between Motorola, Inc., a Delaware\ncorporation with offices located at 1303 East Algonquin Road, Schaumburg, Illinois 60196 (hereafter "MOTOROLA"), and Iridium Satellite LLC, A\nDelaware limited liability company with principal offices located at 1750 Tysons Boulevard, Suite 1400, McLean, Virginia 22102 (hereafter\n"IRIDIUM").\nA. Background. The parties or their affiliates are parties to the following agreements, among others: (i) the Intellectual Property Rights Agreement,\ndated December 11, 2000 ("FIRST GENERATION IPR AGREEMENT"); (ii) the System Intellectual Property Rights Amendment and Agreement,\ndated\n2010 ("SYSTEM IPR AGREEMENT"); (iii) the Subscriber Equipment Technology Agreement (Design), dated September 30,\n2002\n("SETA (DESIGN)"); (iv) the Subscriber Equipment Technology Agreement (Manufacturing), dated September 30, 2002 ("SETA (MFG)"); and\n(v) the Supplemental Subscriber Equipment Technology Amendment and Agreement, dated 2010 ("SSETA"), which shall be collectively\nreferred to as the "IP AGREEMENTS."\nB. Definition. "PROPRIETARY INFORMATION" means information disclosed by either party ("DISCLOSING PARTY") to or otherwise received\nby\nthe other party ("RECIPIENT") pursuant to any of the IP AGREEMENTS that the DISCLOSING PARTY at the time of disclosure identifies in\nwriting as confidential and/or proprietary by means of a legend, marking, stamp or other positive written notice identifying the information to be\nconfidential and/or proprietary, or information disclosed orally, visually, or by other non-written manner by the DISCLOSING PARTY to the\nRECIPIENT, where the RECIPIENT was informed that the information is confidential in nature, or any other information disclosed by the\nDISCLOSING PARTY to the RECIPIENT in any manner that the RECIPIENT should reasonably recognize as being of a confidential nature.\nC. Use of Proprietary Information. PROPRIETARY INFORMATION disclosed hereunder may be used only during the term of this\nAGREEMENT and only for purposes set forth in or otherwise permitted by the IP AGREEMENTS. This AGREEMENT is entered into solely to\nprovide for the treatment of PROPRIETARY INFORMATION to the extent disclosed hereunder or under the IP AGREEMENTS. Neither party\nhas\nan obligation to supply PROPRIETARY INFORMATION hereunder.\nD. Protection of Proprietary Information. It is agreed that for a period of ten (10) years following the termination of the IP AGREEMENT\npursuant to which PROPRIETARY INFORMATION was disclosed, the RECIPIENT will use such PROPRIETARY INFORMATION only for the\npurpose(s) provided in Section C above and shall make reasonable efforts to preserve in confidence such PROPRIETARY INFORMATION\nand\nprevent disclosure thereof to third parties. The RECIPIENT agrees that it will use the same reasonable efforts to protect PROPRIETARY\nINFORMATION as are used to protect its own proprietary information, and such degree of care shall include at least the use of reasonable care.\nDisclosures of such information shall be restricted to those employees, contractors, customers, agents, and permitted sublicensees of the RECIPIENT\nwho are participating in the efforts provided in Paragraph C above, who have a need to know such information, and who have been made aware\nof\nand consent to abide by restrictions at least as restrictive as those contained herein concerning the use of such PROPRIETARY INFORMATION.\nCONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE\nINFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [****]. A COMPLETE VERSION OF\nTHIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.\nE. Exceptions. The obligation to protect PROPRIETARY INFORMATION, and the liability for unauthorized disclosure or use of PROPRIETARY\nINFORMATION, shall not apply with respect to such information which is:\n(i) published or otherwise is or becomes available to the public other than by breach of this AGREEMENT; or\n(ii) rightly received by the RECIPIENT hereunder from a third party without confidential limitation; or\n(iii) independently known by or independently developed by the RECIPIENT without the use of PROPRIETARY INFORMATION; or\n(iv) approved in writing by the DISCLOSING PARTY for public release by the RECIPIENT.\nIn addition, in the event that the RECIPIENT is required to disclose PROPRIETARY INFORMATION pursuant to any applicable law, regulation\n(including SEC regulations and rules), stock exchange rule or any other market or reporting system, or by legal process or pursuant to applicable\nprofessional standards, the RECIPIENT may do so provided that the RECIPIENT has, if possible, notified the DISCLOSING PARTY promptly\nupon learning of the possibility that disclosure could be required pursuant to any such law, regulation, or legal order and has, to the extent practicable\nor permitted, given the DISCLOSING PARTY a reasonable opportunity to contest or limit the scope of such required disclosure and has cooperated\nwith the DISCLOSING PARTY toward this end.\nF. Term and Termination. The term of this AGREEMENT shall coincide with the term of the last to expire or terminate of the IP AGREEMENTS.\nTermination of the IP AGREEMENTS shall not, however, affect the rights and obligations contained herein with respect to PROPRIETARY\nINFORMATION disclosed hereunder prior to termination.\nG. No Transfer or License of Intellectual Property. Except as expressly provided herein, neither the execution and delivery of this AGREEMENT,\nnor the furnishing of any PROPRIETARY INFORMATION, shall be construed as granting either expressly or by implication, estoppel or otherwise,\nany ownership rights or rights by license or otherwise under any invention, improvement, discovery or patent, trade secret, know-how, work of\nauthorship, software program, or other intellectual property now or hereafter owned or under the control of a party disclosing PROPRIETARY\nINFORMATION hereunder.\nH. Transfer/Assignment. Except as expressly permitted in any IP AGREEMENT, this AGREEMENT and the rights and obligations hereunder may\nnot be transferred or assigned by one party without the prior written approval of the other party hereto.\nI. U.S. Laws and Regulations. Except as expressly permitted in the IP AGREEMENTS, the RECIPIENT shall not export, directly or indirectly, any\nPROPRIETARY INFORMATION disclosed under this AGREEMENT to any country which the U.S. Government at the time of export requires an\nexport license or other Government approval without first obtaining such license or approval. The RECIPIENT shall first obtain the written consent\nof the DISCLOSING PARTY prior to submitting any request for authority to export any such PROPRIETARY INFORMATION.\nCONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE\nINFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION\nOF\nTHIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.\nD-2\nJ. Applicable Law. The law of the State of Illinois, U.S.A., except for its choice of laws rules, shall govern this AGREEMENT.\nK. No Formal Business Relationship. This AGREEMENT shall not be construed as a teaming, joint venture or other such arrangement; rather, the\nparties hereto expressly agree that this AGREEMENT is for the purpose of protecting PROPRIETARY INFORMATION only.\nL. No Obligation to Support; No Representation. PROPRIETARY INFORMATION provided hereunder is provided "AS IS", without any\nwarranty of any kind, except as expressly provided in the IP AGREEMENTS. Neither party nor their officers, directors, employees, advisors or\nagents make any representation or warranty as to the accuracy or completeness of any PROPRIETARY INFORMATION which may be furnished\nhereunder, and none of such officers, directors, employees, advisors or agents are authorized to make any such representation or warranty. Neither\nparty nor their officers, directors, employees, advisors or agents shall have any liability to the RECIPIENT or any other person resulting from the use\nof the PROPRIETARY INFORMATION, or any inaccuracy or incompleteness of the PROPRIETARY INFORMATION.\nM. Entire Agreement. This AGREEMENT contains the entire understanding between the parties relative to the protection of PROPRIETARY\nINFORMATION and supersedes all prior and collateral communication, reports, and understanding between the parties in respect thereto. No\nchange, modification, alteration, or addition to any provision hereof shall be binding unless in writing and signed by authorized representatives of\nboth parties.\nN.\nBinding Effect. This AGREEMENT shall be binding upon each party, its affiliates, respective employees, agents, representative, successors, and\nassigns.\nO. Headings. Paragraph headings are included in this AGREEMENT for purposes of information and ease of use only and shall not be used\nin\ninterpreting its terms.\nAGREED AND ACCEPTED BY:\nMotorola, Inc.\nIridium Satellite LLC\nTyped\nTyped\nName:\nName:\nBy:\nBy:\nTitle:\nTitle:\nDate:\nDate:\nCONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE\nINFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [****]. A COMPLETE VERSION OF\nTHIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.\nD-3 EXHIBIT D\nFORM OF NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“AGREEMENT”) is effective as of the day of\n, 2010 by and between Motorola, Inc., a Delaware\ncorporation with offices located at 1303 East Algonquin Road, Schaumburg, Illinois 60196 (hereafter “MOTOROLA”), and Iridium Satellite LLC, A\nDelaware limited liability company with principal offices located at 1750 Tysons Boulevard, Suite 1400, McLean, Virginia 22102 (hereafter\n“IRIDIUM”).\nA. Background. The parties or their affiliates are parties to the following agreements, among others: (i) the Intellectual Property Rights Agreement,\ndated December 11, 2000 (“FIRST GENERATION IPR AGREEMENT”); (ii) the System Intellectual Property Rights Amendment and Agreement,\ndated\n, 2010 (“SYSTEM IPR AGREEMENT”); (iii) the Subscriber Equipment Technology Agreement (Design), dated September 30, 2002\n(“SETA (DESIGN)”); (iv) the Subscriber Equipment Technology Agreement (Manufacturing), dated September 30, 2002 (“SETA (MFG)”); and\n(v) the Supplemental Subscriber Equipment Technology Amendment and Agreement, dated\n, 2010 (“SSETA”), which shall be collectively\nreferred to as the “IP AGREEMENTS.”\nB. Definition. “PROPRIETARY INFORMATION” means information disclosed by either party (“DISCLOSING PARTY”) to or otherwise received\nby the other party (“RECIPIENT”) pursuant to any of the IP AGREEMENTS that the DISCLOSING PARTY at the time of disclosure identifies in\nwriting as confidential and/or proprietary by means of a legend, marking, stamp or other positive written notice identifying the information to be\nconfidential and/or proprietary, or information disclosed orally, visually, or by other non-written manner by the DISCLOSING PARTY to the\nRECIPIENT, where the RECIPIENT was informed that the information is confidential in nature, or any other information disclosed by the\nDISCLOSING PARTY to the RECIPIENT in any manner that the RECIPIENT should reasonably recognize as being of a confidential nature.\nC. Use of Proprietary Information. PROPRIETARY INFORMATION disclosed hereunder may be used only during the term of this\nAGREEMENT and only for purposes set forth in or otherwise permitted by the IP AGREEMENTS. This AGREEMENT is entered into solely to\nprovide for the treatment of PROPRIETARY INFORMATION to the extent disclosed hereunder or under the IP AGREEMENTS. Neither party has\nan obligation to supply PROPRIETARY INFORMATION hereunder.\nD. Protection of Proprietary Information. It is agreed that for a period of ten (10) years following the termination of the IP AGREEMENT\npursuant to which PROPRIETARY INFORMATION was disclosed, the RECIPIENT will use such PROPRIETARY INFORMATION only for the\npurpose(s) provided in Section C above and shall make reasonable efforts to preserve in confidence such PROPRIETARY INFORMATION and\nprevent disclosure thereof to third parties. The RECIPIENT agrees that it will use the same reasonable efforts to protect PROPRIETARY\nINFORMATION as are used to protect its own proprietary information, and such degree of care shall include at least the use of reasonable care.\nDisclosures of such information shall be restricted to those employees, contractors, customers, agents, and permitted sublicensees of the RECIPIENT\nwho are participating in the efforts provided in Paragraph C above, who have a need to know such information, and who have been made aware of\nand consent to abide by restrictions at least as restrictive as those contained herein concerning the use of such PROPRIETARY INFORMATION.\nCONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE\nINFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF\nTHIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.\nE. Exceptions. The obligation to protect PROPRIETARY INFORMATION, and the liability for unauthorized disclosure or use of PROPRIETARY\nINFORMATION, shall not apply with respect to such information which is:\n(i) published or otherwise is or becomes available to the public other than by breach of this AGREEMENT; or\n(ii) rightly received by the RECIPIENT hereunder from a third party without confidential limitation; or\n(iii) independently known by or independently developed by the RECIPIENT without the use of PROPRIETARY INFORMATION; or\n(iv) approved in writing by the DISCLOSING PARTY for public release by the RECIPIENT.\nIn addition, in the event that the RECIPIENT is required to disclose PROPRIETARY INFORMATION pursuant to any applicable law, regulation\n(including SEC regulations and rules), stock exchange rule or any other market or reporting system, or by legal process or pursuant to applicable\nprofessional standards, the RECIPIENT may do so provided that the RECIPIENT has, if possible, notified the DISCLOSING PARTY promptly\nupon learning of the possibility that disclosure could be required pursuant to any such law, regulation, or legal order and has, to the extent practicable\nor permitted, given the DISCLOSING PARTY a reasonable opportunity to contest or limit the scope of such required disclosure and has cooperated\nwith the DISCLOSING PARTY toward this end.\nF. Term and Termination. The term of this AGREEMENT shall coincide with the term of the last to expire or terminate of the IP AGREEMENTS.\nTermination of the IP AGREEMENTS shall not, however, affect the rights and obligations contained herein with respect to PROPRIETARY\nINFORMATION disclosed hereunder prior to termination.\nG. No Transfer or License of Intellectual Property. Except as expressly provided herein, neither the execution and delivery of this AGREEMENT,\nnor the furnishing of any PROPRIETARY INFORMATION, shall be construed as granting either expressly or by implication, estoppel or otherwise,\nany ownership rights or rights by license or otherwise under any invention, improvement, discovery or patent, trade secret, know-how, work of\nauthorship, software program, or other intellectual property now or hereafter owned or under the control of a party disclosing PROPRIETARY\nINFORMATION hereunder.\nH. Transfer/Assignment. Except as expressly permitted in any IP AGREEMENT, this AGREEMENT and the rights and obligations hereunder may\nnot be transferred or assigned by one party without the prior written approval of the other party hereto.\nI. U .S. Laws and Regulations. Except as expressly permitted in the IP AGREEMENTS, the RECIPIENT shall not export, directly or indirectly, any\nPROPRIETARY INFORMATION disclosed under this AGREEMENT to any country which the U.S. Government at the time of export requires an\nexport license or other Government approval without first obtaining such license or approval. The RECIPIENT shall first obtain the written consent\nof the DISCLOSING PARTY prior to submitting any request for authority to export any such PROPRIETARY INFORMATION.\nCONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE\nINFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF\nTHIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.\nD-2\nJ. Applicable Law. The law of the State of Illinois, U.S .A ., except for its choice of laws rules, shall govern this AGREEMENT.\nK. No Formal Business Relationship. This AGREEMENT shall not be construed as a teaming, joint venture or other such arrangement; rather, the\nparties hereto expressly agree that this AGREEMENT is for the purpose of protecting PROPRIETARY INFORMATION only.\nL. No Obligation to Support; No Representation. PROPRIETARY INFORMATION provided hereunder is provided “AS IS”, without any\nwarranty of any kind, except as expressly provided in the IP AGREEMENTS. Neither party nor their officers, directors, employees, advisors or\nagents make any representation or warranty as to the accuracy or completeness of any PROPRIETARY INFORMATION which may be furnished\nhereunder, and none of such officers, directors, employees, advisors or agents are authorized to make any such representation or warranty. Neither\nparty nor their officers, directors, employees, advisors or agents shall have any liability to the RECIPIENT or any other person resulting from the use\nof the PROPRIETARY INFORMATION, or any inaccuracy or incompleteness of the PROPRIETARY INFORMATION.\nM. Entire Agreement. This AGREEMENT contains the entire understanding between the parties relative to the protection of PROPRIETARY\nINFORMATION and supersedes all prior and collateral communication, reports, and understanding between the parties in respect thereto. No\nchange, modification, alteration, or addition to any provision hereof shall be binding unless in writing and signed by authorized representatives of\nboth parties.\nN. Binding Effect. This AGREEMENT shall be binding upon each party, its affiliates, respective employees, agents, representative, successors, and\nassigns.\nO. Headings. Paragraph headings are included in this AGREEMENT for purposes of information and ease of use only and shall not be used in\ninterpreting its terms.\nAGREED AND ACCEPTED BY:\nMotorola, Inc.\nIridium Satellite LLC\nTyped\nName:\nTyped\nName:\nBy:\nBy:\nTitle:\nTitle:\nDate:\nDate:\nCONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE\nINFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF\nTHIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.\nD-3 d908ff8d69096e5f441e6c05144de7c7.pdf effective_date jurisdiction party term EX-10.23 6 dex1023.htm EMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT - AVI\nKATZ\nExhibit 10.23\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION\nAGREEMENT\nThis Employment, Confidentiality and Non-competition Agreement (this “Agreement”) is made and entered into as of the 1st day of January\n2008, by and between GigOptix LLC, an Idaho limited liability company (herein referred to as “Company”), and Avi Katz (“Employee”).\nA. Effective April 9, 2007, the Company and Employee entered into an Employment, Confidentiality and Non-competition Agreement (“1\nst\nAgreement”) wherein the Employee provided management services to iTerra Communication LLC (“iTerra Communications”).\nB. Under the direction of Employee, iTerra Communications was reorganized and all of its assets were transferred to Company on July 1,\n2007.\nC. Employee and Company desire to terminate the 1st\nAgreement and establish this new Agreement to accommodate Employee’s transfer from\niTerra Communication to GigOptix on July 1, 2007 Furthermore, execution of this Agreement shall terminate the 1st Agreement effective April 9,\n2007 between Employee and Company.\nTherefore, in consideration of the mutual promises and covenants contained in this Agreement, the receipt and legal sufficiency of which\nconsideration are hereby acknowledged, the parties hereby agree as follows:\n1. Term.\na) Term. Company hereby employs Employee on a full time basis to serve as Chief Executive Officer (CEO) & President of the\nCompany effective Monday, July 1st, 2007, subject to the terms and conditions herein.\nb) Duties and Responsibilities. Employee shall report to the Company’s Chairman of the Board and Management Board. The Employee\nshall have each and all of the duties and responsibilities of the CEO & President position, as set forth in Attachment B, which is incorporated\nin its entirety herein, and such other duties on behalf of the Company as may be reasonably assigned, and mutually agreed by and with\nEmployee, from time to time by Company’s Management Board (it being acknowledged by the Company that Employee may terminate this\nAgreement for Good Reason in accordance with Section 4(c) herein in the event he does not so mutually agree).\n2. Employee Performance. Employee accepts employment with Company on the terms and conditions provided in this Agreement. Employee\nrecognizes Employee owes to Company duties of loyalty, fidelity and obedience in all matters pertaining to such employment. Employee shall\nserve Company diligently and faithfully, shall timely perform all duties to the best of Employee’s ability and in compliance with Company’s\nreasonable standards of performance, and shall devote Employee’s time and best efforts to the conduct of Company’s business. Company\nacknowledges that from time to time persons in the High-Tech\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n1\nindustry, in particular, but not limited to, the semiconductor, eCommerce, software and security, and in the real-estate industry, seek\nEmployee’s advice or consultation. Provided that Employee does not disclose Confidential Information to such persons or intentionally act\nagainst Employer’s interests, the Executive may provide such advice or consultation if it does not materially interfere with Executive’s duties\nhereunder.\nNotwithstanding the foregoing, the parties of this Agreement recognize and agree that the Employee may engage in passive personal\ninvestments and other business activities which do not conflict, directly or indirectly, with the business affairs of the Company or interfere with\nEmployee’s performance of Employee’s duties and responsibilities hereunder. In that regard, Employee may serve on the Board(s) of Directors\nor Management Board(s) of up to three (3) external companies of Employee’s choice, unless larger number is approved by the iTerra Board of\nManagement, so long as service on any of such Boards simultaneously with Employee’s service for the Company does not conflict or interfere\nwith performance of Employee’s duties and responsibilities hereunder.\n3. Compensation. In consideration for the services of Employee rendered to Company pursuant to the terms of this Agreement, and subject to\nthe full material performance of Employee’s obligations hereunder, Employee shall receive compensation and benefits as follows:\na) Base Salary. Employee shall be paid a base salary (“Base Salary”) at the annual rate of $300,000, payable in bi-weekly installments\nconsistent with Company’s payroll practices.\nb) Additional Incentive. Effective July 1st\n, 2007, Employee will receive two option grants, one to purchase three hundred and twenty five\nthousand (325,000) Membership Units of GigOptix, and a second to purchase One Million (1,000,000) Membership Units of GigOptix in\naccordance with the Company’s Equity incentive Plan. The exercise price of both grants is $0.10 per unit. Vesting on the options to purchase\n325,000 Membership Units will be based on performance objectives as established by the GigOptix Management Board for the 2007 period\nand Fund raising performance for the 2008 period. This option grant will also include an extension of the 90 days exercise period after\ntermination as defined by the plan to five (5) years in recognition of participation in the 2007 Management Board without compensation.\nVesting on the option to purchase 1,000,000 Membership Units will be pro-rated based on monthly continuous service over four (4) years and\nthe exercise period after termination will be the standard 90 days, unless Management Board will approve different period.\nc) Payment. Payment of all compensation to Employee hereunder shall be made in accordance with the relevant Company policies in\neffect from time to time, including normal payroll practices, and shall be subject to all applicable employment and withholding taxes.\nd) Business Expenses. Upon submission of itemized expense statements in the manner specified by the Company, Employee shall be\nentitled\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n2\nto direct payment and reimbursements for reasonable travel and other reasonable business expenses duly incurred by Employee in the\nperformance of his duties under this Agreement. Acceptable expenses will include, but are not limited to, charges for meals, Company\nemployee or customer entertainment, bridge tolls, lodging, air and ground transportation, cell phone, telephone, computer and broadband\ninternet services provided such are used for business purposes.\ne) Benefits Plans. Employee shall be eligible to participate in the Company’s benefit plans including, but not limited to, medical and\ndental plans, life and disability insurance plans and retirement plans, pursuant to their terms and conditions. Nothing in this Agreement shall\npreclude the Company from terminating or amending any existing employee benefit plan or program from time to time, provided, however, the\nCompany agrees to provide Employee during the term of this Agreement with health, medical, dental, and disability insurance, equivalent in\ncost and benefits to Employee, to that provided Employee as of the date of this Agreement. The Company further agrees it shall be responsible\nfor any additional incremental costs associated with providing such equivalent insurance benefits and will pay, or reimburse Employee for, all\nsuch incremental additional costs.\nf) Vacation. Employee shall be entitled to participate in the Company’s vacation plan and holiday plan, as long as the scheduling of\nEmployee’s vacation does not interfere with the Company’s normal business operations.\n4. Termination of Employment. Termination of employment will be subject to the following terms and conditions.\na) Termination For Cause. Notwithstanding anything herein to the contrary, the Company may terminate Employee’s employment\nhereunder “For Cause” for any one of the following reasons:\ni. The Employee’s willful harmful actions which do or are likely to result in material damage or embarrassment to Company, the\nCompany’s reputation, or the Company’s legitimate business interests;\nii. The Employee’s continued failure to follow the express direction and approved Resolutions of the Company Management\nBoard, following at least 60 days written notice.\niii. Commission of any act of fraud or falsification of any employment or Company records in any material way;\niv. The Employee’s abuse or illegal use of alcohol or other drugs or controlled substances;\nv. The Employee’s material breach of any of the terms or conditions of this Agreement, which breach is not cured within thirty\n(30) days following written notice from Company of such breach;\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n3\nvi. Employee’s conviction of or entry of a guilty plea or plea of no contest with respect to a felony, including theft, embezzlement\nor misappropriation of funds from the Company; or\nvii. Voluntary resignation of the Employee in the absence of Good Reason as defined in Section 4 (c) of this Agreement.\nUpon termination of Employee’s employment with Company For Cause, the Employee shall not be entitled to the Termination Benefits\nin Section 4(d) of this Agreement. Company shall have no further obligation under this Agreement other than payment of accrued but unpaid\nBase Salary, vacation and bonus. [For Cause and Termination Benefits are defined terms.]\nb) Termination Without Cause. The Company may terminate Employee’s employment hereunder at any time without cause, provided,\nhowever, that Employee shall be entitled to the Termination Benefits set forth in Section 4(d) of this Agreement.\nc) Termination for Good Reason. Employee may terminate his employment with the Company for Good Reason (as herein defined). If\nEmployee terminates his employment with the Company for Good Reason (as herein defined), he shall be entitled to the Termination Benefits\nset forth in Section 4(d). For purposes of this Agreement, “Good Reason” shall mean any of the following: (i) any material breach by the\nCompany of this Agreement, which breach is not cured within thirty (30) days following written notice from Employee of such breach; or\n(ii) any significant change in the Employee’s duties and responsibilities, without mutual agreement between Employee and Company.\nd) Termination Benefits. If the Employee is terminated at any time during his employment under the provisions of 4(b) or 4(c), upon\nmutual execution of valid and comprehensive release of any and all claims between them, including an agreement by Company to indemnify,\nhold harmless and defend Employee against any and all existing claims or claims, other than for his gross negligence, fraud, willful\nmisconduct, that may be filed by third parties, including government agencies, naming Employee as a defendant either as an individual or as\nthe President & CEO of the Company, the Employee shall receive “Termination Benefits” as follows:\n1. 500,000 Membership Unit Options of the 1,000,000 Option Grant identified in Section 3(b) herein from the date of termination of\nemployment shall immediately vest and be granted an exercise period of five (5) years. The 500,000 Membership Unit Options subject to\nthis Section 4(d) (1) shall not apply to any Membership Unit Options that have been forfeited in accordance with the Equity Incentive\nPlan and the respective Membership Unit Option Grant Notice and shall be first allocated from any vested Membership Unit Options\nissued under Section 3(c) of this Agreement, and shall then be allocated to any unvested Membership Unit Options issued under\nSection 3(c) of this Agreement;\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n4\n2. One hundred percent (100%) of the remaining 325,000 Membership Unit Option Grants, excluding any Option that have been\nforfeited in accordance with performance objectives, shall immediately vest and be granted an exercise period of five (5) years; and\n3. One time lump-sum payment, equivalent to twelve (12) months Base Salary pursuant to Section 3(a) herein, paid on the date of\ntermination of Employee. This Section 4(d)(3) shall terminate on January 1, 2013.\ne) Cooperation. After notice of termination, Employee shall cooperate with the Company, as reasonably requested by the Company, to\neffect a transition of Employee’s responsibilities and to ensure that the Company is aware of all matters being handled by the Employee.\nf) Disability of Employee. The Company may terminate this Agreement without liability, if Employee shall be permanently prevented\nfrom properly performing his essential duties hereunder with reasonable accommodation by reason of illness or other physical or mental\nincapacity for a period of more than one hundred twenty (120) consecutive days. Upon Employee hire date the Company will obtain a one (1)\nyear Disability insurance policy effective the determined date of disability as described below. Employee will have the opportunity to review\nand acknowledge the Company proposed insurance policy. Upon mutual agreement between Employee and the Company, the Company will\npurchase the mutually agreed one (1) year Disability policy. A medical doctor selected by written agreement of the Employer and the\nEmployee upon the request of either party by notice to the other will determine the disability of Employee. If the Employer and Employee\ncannot agree on the selection of a medical doctor, each of them will select a medical doctor and the two medical doctors will select a third\ndoctor who will determine whether the Employee has a disability. The determination of the medical doctor selected under this Section 4(f) will\nbe binding on both parties. The Employee must submit to a reasonable number of examinations by the medical doctor making the\ndetermination of disability under this Section 4(f), and Employee hereby authorizes the disclosures and release to the Employer of such\ndetermination and all supporting medical records. If the Employee is not legally competent, the Employee’s legal guardian or duly authorized\nattorney-in-fact will act in the Employee’s stead, under this Section 4(f), for the purposes of submitting the Employee to the examinations, and\nproviding the authorization of disclosure, required under this Section 4(f). Upon such termination, Employee shall be entitled to all accrued but\nunpaid Base Salary, accrued bonus (if any) and accrued vacation.\ng) Death of Employee. In the event of the death of Employee, the Company’s obligations hereunder shall be automatically cease and\nterminate; provided, however, that within 15 days the Company shall pay to Employee’s heirs or personal representatives Employee’s accrued\nbut unpaid Base Salary and accrued vacation accrued to the date of death.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n5\n5. Confidential Information.\na) Definition of Confidential Information. The Company has built up an established and extensive trade and reputation in its’ respective\nindustries. The Company has developed and continues to develop commercially valuable technical and non-technical information\n(“Confidential Information”) that is proprietary and confidential and constitutes the Company’s “trade secrets” within the meaning of the Idaho\nTrade Secrets Act, Idaho Code Sections 48-801 - 48-807. Such Confidential Information, which is vital to the success of the Company’s\nbusiness, includes, but is not necessarily limited to: programs, computer programs, system documentation, data compilations, manuals,\nmethods, techniques, processes, patented and/or unpatented technology, research, know-how, development, designs, devices, inventions, the\nidentities of Company’s customers, Company’s suppliers, contracts with suppliers and customers, sales proposals, pricing policies, cost\ninformation, financial information, business plans, specialized requests of Company’s customers, and other materials and documents\ndeveloped by Company. Confidential Information also includes special hardware, product hardware, related software and related\ndocumentation, either owned by Company or in Company’s possession under an agreement of nondisclosure. Through Employee’s\nemployment, Employee may become acquainted with or contribute to the Company’s Confidential Information through inventions,\ndiscoveries, improvements, software development, and/or in other ways. Confidential Information does not include customer names, programs,\nreports or other improvements to documentation, which were owned by Employee prior to being employed by Company. Further, Confidential\nInformation does not include information (i) that was in the public domain at the time of initial disclosure by or enters the public domain\nthereafter through no fault of Employee; (ii) that was already in the possession of Employee at the time of the initial disclosure and not subject\nto any other nondisclosure obligations; (iii) that is independently developed by Employee, outside the term of his employment with the\nCompany, without access to the subject Confidential Information; (iv) that is received by Employee from a third party with no confidential\nrestrictions; or (v) for which disclosure is compelled by a judicial or other governmental order, provided Employee provides Employer with\nprompt notice of such order before disclosure.\nb) Employee Access to Confidential Information. As President & CEO of Company, Employee will need broad access to Company’s\nConfidential Information. Employee agrees that to the extent reasonably possible he will limit access to said Confidential Information under\nhis control only to Company’s other employees whose job functions reasonably necessitate access to such Confidential Information and to\nthird parties only on a need to know basis.\nc) Nondisclosure of Confidential Information. Employee shall not, at any time, either during or subsequent to employment, directly or\nindirectly, appropriate, disclose or divulge any Confidential Information to any person not then employed by Company or any of DBSI’s\naffiliates, unless authorized or directed to do so by Company. Regarding all other third parties, Employee shall use good practices to ensure\nthat a signed confidentiality agreement for the\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n6\nbenefit of Company is or has been obtained from the third party to whom Confidential Information is being disclosed and that all Confidential\nInformation so disclosed is clearly marked “Confidential.”\nd) Return of Confidential and Other Information. All Confidential Information provided to Employee, and all documents and things\nprepared by Employee in the course of Employee’s employment by Company, including but not necessarily limited to correspondence,\ndrawings, blueprints, manuals, letters, notes, lists, notebooks, reports, flow-charts, computer programs, proposals, Day Timers, planners,\ncalendars, schedules, discs, data tapes, financial plans and information, business plans, and other documents and records, whether in hard copy,\nmagnetic media or otherwise, and any and all copies thereof, are the exclusive property of Company and shall be returned immediately to\nCompany upon termination of employment or upon Company’s request at any time.\ne) Ownership of Confidential Information. Employee hereby grants to Company, and Company hereby accepts, the entire right, title, and\ninterest of Employee in and to any of the Confidential Information created or developed by Employee during the term of his employment\n(whether created or developed within or outside the course and scope of Employee’s employment by Company), including, but not limited to,\nall patents, copyrights, trade secrets, and other proprietary rights in or based on the Confidential Information. If the Confidential Information or\nany portion thereof is copyrightable, it shall be deemed to be a “work made for hire,” as such term is defined in the copyright laws of the\nUnited States. Employee shall cooperate with Company or its designees and execute assignments, oaths, declarations, and other documents\nprepared by Company, to effect the terms of this Section 5(e) or to perfect or enforce any proprietary rights resulting from or related to this\nAgreement. Within reason and in accordance with industry practice, such cooperation and execution shall be at no additional compensation to\nEmployee; provided, however, Company shall reimburse Employee for reasonable out-of-pocket expenses incurred at the specific request of\nCompany,\n6. Non-competition Obligations. During Employee’s employment with Company, and for a period of twelve (12) months immediately\nfollowing termination (the “Non-competition Obligation”) of such employment, Employee will not, directly or indirectly, at any place in the\nworld, engage or become interested (as owner, stockholder, partner, director, officer, member, creditor, consultant, or employee) in any\nbusiness in competition with the business conducted by Company at any time during Employee’s employment with Company. Employee\nacknowledges that Company is doing business throughout the world, that Employee is reasonably expected to have contact with Company’s\ncustomers throughout the world during the term of Employee’s employment with Company, and that the worldwide geographic scope of this\ncovenant is reasonably necessary to protect Company’s legitimate business interests.\n7. Customer Non-Solicitation. Employee will not, during the term of employment with Company and for a period of twelve (12) months\nimmediately following termination of employment, solicit, divert, take away from the\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n7\nCompany, or attempt to solicit, divert or take away, any of Company’s customers with related business or the related business or patronage of\nany such customers, either for himself or on behalf of any other person, partnership, corporation or other entity. This restriction against\nsolicitation shall apply only to solicitations, which directly or indirectly compete with the business of the Company that Company is/was\nengaged in while Employee worked for Company.\n8. Co-Emplovee Non-Solicitation. Employee will not, during the term of employment with Company and for a period of twelve (12) months\nfollowing the termination of such employment for any reason, solicit, recruit and hire any other employee of Company, either for himself or on\nbehalf of any other person, partnership, corporation or other entity.\n9. Enforcement.\na) Reasonableness of Restrictions. Employee and Company acknowledges that compliance with this Agreement is reasonable and\nnecessary to protect both parties’ legitimate business interests, including but not limited to both parties’ goodwill.\nb) Irreparable Harm. Employee and Company acknowledges that a breach of either party’s obligations under this Agreement will result\nin great, irreparable and continuing harm and damage to the other party for which there is no adequate remedy at law.\nc) Injunctive Relief. Employee agrees that in the event Employee breaches this Agreement, Company shall be entitled to seek, from any\ncourt of competent jurisdiction, preliminary and permanent injunctive relief to enforce the terms of this Agreement, in addition to any and all\nmonetary damages allowed by law, against Employee. Further, Company agrees that in the event Company breaches this Agreement,\nEmployee shall be entitled to seek, from any court of competent jurisdiction, preliminary and permanent injunctive relief to enforce the terms\nof this Agreement, in addition to any and all monetary damages allowed by law, against Company.\nd) Extension of Covenants. In the event Employee violates any one or more of the covenants contained in Sections 6 through 8 of this\nAgreement, Employee agrees that the running of the term of each covenant so violated shall be tolled during the period(s) of any such violation\nand the pendency of any litigation arising out of any such violation. Further, in the event Company violates any one or more of the covenants\ncontained in Sections 6 through 8 of this Agreement, Company agrees that the running of the term of each covenant so violated shall be tolled\nduring the period(s) of any such violation and the pendency of any litigation arising out of any such violation.\ne) Judicial Modification. The parties have attempted to limit the Employee’s right to compete only to the extent necessary to protect\nCompany from unfair business practices and/or unfair competition. The parties recognize, however, that reasonable people may differ in\nmaking such a determination.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n8\nConsequently, the parties hereby agree that, if the scope or enforceability of the restrictive covenant is in any way disputed at any time, a court\nor other trier of fact may modify and enforce the covenant to the extent that it believes to be reasonable under the circumstances existing at that\ntime.\nf) Attorney Fees. In the event it becomes necessary for either party to this Agreement to institute a suit at law or in equity for the\npurposes of enforcing any of the provisions of this Agreement, the prevailing party shall be entitled to recover said party’s reasonable\nattorney’s fees, plus court costs and expenses, from the non-prevailing party.\ng) Withholding from Final Paycheck. If not prohibited by federal, state or local laws, Employee expressly authorizes Company to\nwithhold and deduct from Employee’s final wages any amounts owed by Employee to Company at the time of the termination of employment,\nincluding but not limited to the value of unreturned or willfully damaged Company property. Employee further expressly agrees to repay to\nCompany any additional agreed-upon sums owed by Employee to Company (above that which can be withheld) immediately upon termination\nof Employee’s employment.\nh) Alternative Dispute Resolution. In the event a dispute between the parties arises under this Agreement, prior to filing an action of any\nkind each Party agrees to mediation of the dispute or disputes and shall participate in good faith. The mediation shall be conducted by a\nprofessional neutral mediator under the Mediation Rules of the American Arbitration Association but not necessarily in that forum.\n10. Indemnity. Employee warrants and represents that Employee has not knowingly and intentionally violated, is not knowingly and\nintentionally violating, and will not knowingly and intentionally violate any of the terms or conditions of any prior employment agreement,\nrestrictive covenant, or other similar agreement entered into by Employee while in the employment of any other company; that Employee has\nnot knowingly and intentionally given and will not knowingly and intentionally give to the Company at any time any customer list, trade\nsecret, or any other item of confidential information, obtained or received while in the employment of any other company in violation of any\nemployment agreement, restrictive covenant or similar agreement entered into while in the employment of any other company; that, to the best\nof Employee’s knowledge. Employee’s employment with the Company as contemplated and provided for hereby is not materially restricted or\nmaterially limited in any way by any such employment agreement or restrictive covenant or by operation of any state, federal or local\nregulation, statute or other law of any kind, name or nature, including but not limited to trade secret laws and immigration laws; and that\nEmployee is in all respects duly qualified and eligible to work for the Company. In the event of a final legal adjudication (after exhausting any\nright of appeal) of Employee’s material violation of one or more of the warranties or representations set forth above in this section, Employee\nagrees to indemnify the Company for all damages, costs and expenses, including reasonable attorney fees, which the Company may have to\npay in connection with a legal or administrative action against the Company or\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n9\nEmployee arising there from; provided, however, in the event any damages, costs and expenses are incurred by the Company for which\nEmployee is otherwise obligated to indemnify the Company are covered under any insurance policy or policies of the Company, then the\nCompany shall be obligated to exhaust all available insurance as a condition to the exercise of its right of indemnification hereunder (and the\nCompany waives all rights of subrogation in connection therewith) and Employee’s indemnification obligation hereunder shall be reduced in\nproportion to the extent of such insurance. Company warrants and represents it has no knowledge as of the date hereof that Employee is or\nmay become in violation of any of the warranties and representations made by him above.\n11. Miscellaneous.\na) Survival. Employee understands that this Agreement shall be effective as of the date first written above and that the terms of this\nAgreement shall remain in full force and effect not only during the continuation of Employee’s employment, but also after the termination of\nemployment for any reason by Company or Employee.\nb) Waiver. Failure of the Company or Employee to exercise or otherwise act with respect to any of its rights under this Agreement shall\nnot be construed as a waiver of any breach, nor prevent the Company or Employee from thereafter enforcing strict compliance with any and all\nterms of this Agreement.\nc) Severability. If any part of this Agreement shall be adjudicated to be invalid or unenforceable, as to duration, territory or otherwise,\nthen such part shall be deemed deleted from this Agreement or amended, as the case may be, in order to render the remainder of this\nAgreement valid and enforceable.\nd) Agreement Binding. This Agreement shall be binding upon and inure to the benefit of Company, Company’s successors and assigns,\nEmployee and Employee’s heirs, executors, administrators and legal representatives.\ne) Governing Law. This Agreement is made and entered into in the State of California, where Company has its principal place of\nbusiness, and concerns employment situated in said state. This Agreement shall be interpreted and construed in accordance with the laws of the\nState of California.\nf) Titles and Captions. All section and paragraph titles and captions contained in this Agreement are for convenience only and shall not\nbe deemed part of the context nor affect the construction or interpretation of this Agreement.\ng) Entire Agreement. This Agreement, which includes all Attachments incorporated herein and attached hereto, contains all the\nunderstandings and agreements between the parties concerning matters set forth in this Agreement. The terms of this Agreement supersede any\nand all prior statements, representations and agreements by or between Company and Employee, or either of them, concerning the matters set\nforth in this Agreement.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n10\nEmployee acknowledges that no person who is an agent or employee of Company may orally or by conduct modify, delete, vary, or contradict\nthe terms or conditions of this Agreement or this paragraph. This Agreement may be modified only by a written agreement signed by both\nparties.\nh) Separate Counsel. Company’s attorneys have not represented Employee, and Employee has been advised that it is important for him\nto seek legal advice and representation in this matter.\nThe parties acknowledge and agree that they have read and understood the entire contents of this Agreement and Employee\nacknowledges that he has received a copy of this Agreement.\nCompany:\nGigOptix LLC,\na California limited liability company\n/s/ Paul Judge\nBy: Paul Judge\nIts: Compensation Committee Member, and Member of\nthe Management Board\nEmployee:\n/s/ Avi Katz\nAvi Katz\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n11\nATTACHMENT “A”\nMANAGEMENT BY OBJECTIVES (MBO’S)\nUpon execution of this Agreement, Employee and Company shall mutually establish and confirm through a Company Management Board\nResolution the following fair and reasonable goals (MBO’s) which, when met, shall remove restrictions on certain Company Membership Units,\nrelated in Section 3(b) of this Employment, Confidentiality and Non-Competition Agreement:\n•\n250,000 Restricted Membership Unit grants with 2007 MBO and grant restrictions to be mutually determined between the Management\nBoard and Employee.\n•\n75,000 restricted Membership Unit grants with completion of fund raising, with Management Board approval, during 2007 & 2008,\nwhich does not include the 2007 approved Financial Plan or funds approved in association with the acquisition of Helix AG.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n12\nATTACHMENT “B”\nCEO & President Duties and Responsibilities\n1. Employee shall report directly to Company’s Management Board. Employee shall own all responsibilities for leading, planning, driving and\nexecuting all vision and business initiatives of the Company, working under the general directions and guidelines of the Board which will make\nassignments in terms of broadly defined missions.\n2. Employee shall provide leadership, experience and corporate governance required to transform the vision and product offerings of Company into a\ngrowing profitable business with the goal of maximizing’ ROI.\n3. Employee’s key responsibilities include:\na. The initial responsibility of Employee is to immediately commence an assessment of the viability of the Company and the likelihood of\nfuture growth under the current or other strategic plans, based on the quality and differentiation of its technology, and the preparation of a\nrecommendation to the Board to proceed toward fund raising and growth or other potential plans in the best interest of the Company’s Members.\nb. If the Board determines the direction the Company shall take under the MBO’s above, Employee shall develop a new business model\naccordingly, such as to execute the transition from a customer NRE-focus company to a company with a product portfolio focused on profitable\nreoccurring product revenue.\nc. In any decision scenario, Employee shall develop clear and precise business plans with appropriate strategies, objectives, initiatives, and\nindicator measurements. He shall maintain focus and guide the Company’s employees to consistent execution of approved business plans, as\napproved by the Board, reporting to the Board both quarterly and annually.\nd. Employee shall be responsible for building a strong, professional and highly motivated Executive Team, including new executives, with\nBoard involvements and approval, all of whom are capable of contributing to the Company goal of sustained and profitable growth.\ne. Employee shall articulate and implement the Company’s vision to create a business plan, goals, and objectives that will evolve with\ncontinued growth of profitability by balancing technical and business resources.\nf. Employee shall lead Company toward the achievement of aggressive sales growth targets for 2007, 2008 and beyond by rapidly penetrating\ntarget customer accounts and markets while establishing competitive barriers for entry, producing a product roadmap and driving new product and\ntechnology introductions to address expanding market opportunities using strong domestic and international industry relationships as leverage into\nsales, particularly with line card providers and system integrators, as well as with OEM partners.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n13\ng. Employee shall seek adequate funding sufficient to meet Company objectives: to grow the business, as per mutually agreed upon guidelines\nbetween the Employee and the Board. The employee will work with the current investors to lead a broad and successful fund raising process.\nh. Employee shall develop Business Plans with measurable initiatives and strategies that are aligned. These Business Plans will be\nprofessionally presented to the Board, and in some cases involve the Board prior to presentation, for formal Board approval. The Board for\nconsistent execution of approved Business Plans, relative initiatives, and MBO’s will hold Employee and his team accountable. Employee will be\npro-active involving the Board when Business Plans appear not to be achieved and thus developing a new course of execution pro-actively and\nachieve Board approval of revised Business Plans.\ni. Employee shall build a company culture of excellence based on performance, integrity, accountability, customer service, teamwork, candor\nand respect for others (Live, Love, Learn, Leave a Legacy).\nj. Employee shall seek to expand Company’s intellectual property portfolio, and secure all existing IP. He will also work with the investor ’s\nlegal department to secure existing IP under appropriate patents, and to survey the IP market for potential infringements on the company’s IP, as well\nas potential infringements of the company on existing IP.\nk. Help to expand and strengthen the Board by recommending and recruiting, with the Board, new members including representatives of\nindustry and the relevant professions.\nl. Work with the Board to develop valuation strategies, which would achieve a value return to investors and shareholders.\nThis CEO & President Duties and Responsibilities are considered a “working document” that may change from time to time and in such event will\nbe documented and mutually agreed between Employee and Board.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n14\nGIGOPTIX LLC\nEQUITY INCENTIVE PLAN\nOPTION GRANT NOTICE\nGigOptix LLC, (the “Company”) pursuant to its Equity Incentive Plan (the “Plan”), hereby grants to Optionholder an option to purchase the number\nof the Company’s Units set forth below. This option is subject to all of the terms and conditions as set forth herein and in the Unit Option\nAgreement, the Plan, the Notice of Exercise and the Company’s Operating Agreement (the “Operating Agreement”). The Unit Option Agreement,\nthe Plan, the Notice of Exercise and the Operating Agreement are attached hereto and incorporated herein their entirety.\nOptionholder:\nAvi Katz\nDate of Grant:\nAugust 1, 2007\nDate Option Rights are Terminated if Not Exercised*:\nAugust 1, 2017\nNumber of Units Subject to Option:\n1,000,000\nExercise Price (Per Unit):\n$0.10\nTotal Exercise Price:\nOne Hundred Thousand Dollars ($100,000)\nExercise Schedule:\nSame as Vesting Schedule\nVesting Schedule: Options vest at the rate of 1/4 the first year based on the anniversary of the Grant date and at a rate of one thirty-sixth ( 1 /36) of the\nremaining units per month over the remaining three years.\nDate of Vesting\nNumber of Unit Options that can be Exercised\nAugust 1, 2008\n250,000\nFirst of each month thereafter through December 31, 2011\nContact your Plan Administrator for your current vested amount\n* Option may terminate on earlier events, such as termination of Continuous Service, Optionholder’s Disability or Death. See the Unit Option\nAgreement and the Plan for further details.\nPayment: By cash or check\nConfidentiality: The undersigned Optionholder acknowledges and agrees that the information contained in this Option Grant Notice shall remain\nconfidential and Optionholder shall not divulge or reveal, either directly or indirectly, the amount or extent of equity or options granted herein or any\nother material term to any other co-worker, employee or third party (other than a license professional advisor) without the express written consent of\nthe Company. Any breach of this confidentiality agreement may result in complete forfeiture of the option or equity.\nAdditional Terms/Acknowledgments: Options shall not be exercised prior to January 1, 2008. The undersigned Optionholder acknowledges\nreceipt of, and understands and agrees to, this Option Grant Notice, the Unit Option Agreement, the Plan and the Operating Agreement.\nOptionholder further acknowledges that as of the Date of Grant, this Option Grant Notice, the Unit Option Agreement, the Plan and the Operating\nAgreement set forth the entire understanding between the Optionholder and the Company regarding the purchase of Units in the Company.\nOptionholder also agrees to execute all such further documentation as the Board of Managers may reasonably require.\nGIGOPTIX LLC:\nOPTIONHOLDER:\nBy: /s/ Paul F. Judge\nDate: 3/26/08\n/s/ Avi Katz\nDate: 3/26/08\nPaul F. Judge, Management Board Member\n(Name)\nATTACHMENTS: Unit Option Agreement, Plan, Notice of Exercise, Operating Agreement and Memorandum to Plan Participants.\nGIGOPTIX LLC\nEQUITY INCENTIVE PLAN\nOPTION GRANT NOTICE\nGigOptix LLC, (the “Company”) pursuant to its Equity Incentive Plan (the “Plan”), hereby grants to Optionholder an option to purchase the number\nof the Company’s Units set forth below. This option is subject to all of the terms and conditions as set forth herein and in the Unit Option\nAgreement, the Plan, the Notice of Exercise and the Company’s Operating Agreement (the “Operating Agreement”). The Unit Option Agreement,\nthe Plan, the Notice of Exercise and the Operating Agreement are attached hereto and incorporated herein their entirety.\nOptionholder:\nAvi Katz\nDate of Grant:\nAugust 1, 2007\nDate Option Rights are Terminated if Not Exercised*:\nAugust 1, 2017\nNumber of Units Subject to Option:\n325,000\nExercise Price (Per Unit):\n$0.10\nTotal Exercise Price:\nThirty Two Thousand Five Hundred Dollars ($32,500)\nExercise Schedule:\nSame as Vesting Schedule except that no units can be exercised prior\nto January 1, 2008.\nExercise Term:\nIn the event the Optionholder’s Continuous Service Terminates, the\nOptionholder may exercise his or her vested Options but only within\nsuch period of time ending on the earlier of (i) the date five years\nfollowing termination of the Optionholders Continuous Service, or\n(ii) the expiration of the term of the Option as set forth in this Option\nGrant.\nVesting Schedule: Options vesting is based on performance as governed by the GigOptix Management Board.\nDate of Vesting\nNumber of Unit Options that can be Exercised\nAugust 1, 2007\n250,000**\nTBD (effective on completion date)\nAn additional 75,000 eligible for vesting, based on successfully completing a\nfunding event as governed by GigOptix Management Board.\n*\nOption may terminate on earlier events, such as termination of Continuous Service, Optionholder’s Disability or Death. See the Unit Option\nAgreement and the Plan for further details.\n**\nMay only be exercised after January 1, 2008.\nPayment: By cash or check\nConfidentiality: The undersigned Optionholder acknowledges and agrees that the information contained in this Option Grant Notice shall remain\nconfidential and Optionholder shall not divulge or reveal, either directly or indirectly, the amount or extent of equity or options granted herein or any\nother material term to any other co-worker, employee or third party (other than a license professional advisor) without the express written consent of\nthe Company. Any breach of this confidentiality agreement may result in complete forfeiture of the option or equity.\nAdditional Terms/Acknowledgments: Options shall not be exercised prior to January 1, 2008. The undersigned Optionholder acknowledges\nreceipt of, and understands and agrees to, this Option Grant Notice, the Unit Option Agreement, the Plan and the Operating Agreement.\nOptionholder further acknowledges that as of the Date of Grant, this Option Grant Notice, the Unit Option Agreement, the Plan and the Operating\nAgreement set forth the entire understanding between the Optionholder and the Company regarding the purchase of Units in the Company.\nOptionholder also agrees to execute all such further documentation as the Board of Managers may reasonably require.\nGIGOPTIX LLC:\nOPTIONHOLDER:\nBy: /s/ Paul F. Judge\nDate: 3/26/08\n/s/ Avi Katz\nDate: 3/26/08\nPaul F. Judge, Management Board Member\n(Name)\nATTACHMENTS: Unit Option Agreement, Plan, Notice of Exercise, Operating Agreement and Memorandum to Plan Participants. EX-10.23 6 dex1023.htm EMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT - AVI\nKATZ\nExhibit 10.23\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION\nAGREEMENT\nThis Employment, Confidentiality and Non-competition Agreement (this “Agreement”) is made and entered into as of the 1st day of January\n2008, by and between GigOptix LLC, an Idaho limited liability company (herein referred to as “Company”), and Avi Katz (“Employee”).\nA. Effective April 9, 2007, the Company and Employee entered into an Employment, Confidentiality and Non-competition Agreement (“1st\nAgreement”) wherein the Employee provided management services to iTerra Communication LLC (“iTerra Communications”).\nB. Under the direction of Employee, iTerra Communications was reorganized and all of its assets were transferred to Company on July 1,\n2007.\nC. Employee and Company desire to terminate the 1% Agreement and establish this new Agreement to accommodate Employee’s transfer from\niTerra Communication to GigOptix on July 1, 2007 Furthermore, execution of this Agreement shall terminate the 15t Agreement effective April 9,\n2007 between Employee and Company.\nTherefore, in consideration of the mutual promises and covenants contained in this Agreement, the receipt and legal sufficiency of which\nconsideration are hereby acknowledged, the parties hereby agree as follows:\n1. Term.\na) Term. Company hereby employs Employee on a full time basis to serve as Chief Executive Officer (CEO) & President of the\nCompany effective Monday, July 1st, 2007, subject to the terms and conditions herein.\nb) Duties and Responsibilities. Employee shall report to the Company’s Chairman of the Board and Management Board. The Employee\nshall have each and all of the duties and responsibilities of the CEO & President position, as set forth in Attachment B, which is incorporated\nin its entirety herein, and such other duties on behalf of the Company as may be reasonably assigned, and mutually agreed by and with\nEmployee, from time to time by Company’s Management Board (it being acknowledged by the Company that Employee may terminate this\nAgreement for Good Reason in accordance with Section 4(c) herein in the event he does not so mutually agree).\n2. Employee Performance. Employee accepts employment with Company on the terms and conditions provided in this Agreement. Employee\nrecognizes Employee owes to Company duties of loyalty, fidelity and obedience in all matters pertaining to such employment. Employee shall\nserve Company diligently and faithfully, shall timely perform all duties to the best of Employee’s ability and in compliance with Company’s\nreasonable standards of performance, and shall devote Employee’s time and best efforts to the conduct of Company’s business. Company\nacknowledges that from time to time persons in the High-Tech\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT 1\nindustry, in particular, but not limited to, the semiconductor, eCommerce, software and security, and in the real-estate industry, seek\nEmployee’s advice or consultation. Provided that Employee does not disclose Confidential Information to such persons or intentionally act\nagainst Employer’s interests, the Executive may provide such advice or consultation if it does not materially interfere with Executive’s duties\nhereunder.\nNotwithstanding the foregoing, the parties of this Agreement recognize and agree that the Employee may engage in passive personal\ninvestments and other business activities which do not conflict, directly or indirectly, with the business affairs of the Company or interfere with\nEmployee’s performance of Employee’s duties and responsibilities hereunder. In that regard, Employee may serve on the Board(s) of Directors\nor Management Board(s) of up to three (3) external companies of Employee’s choice, unless larger number is approved by the iTerra Board of\nManagement, so long as service on any of such Boards simultaneously with Employee’s service for the Company does not conflict or interfere\nwith performance of Employee’s duties and responsibilities hereunder.\n3. Compensation. In consideration for the services of Employee rendered to Company pursuant to the terms of this Agreement, and subject to\nthe full material performance of Employee’s obligations hereunder, Employee shall receive compensation and benefits as follows:\na) Base Salary. Employee shall be paid a base salary (“Base Salary”) at the annual rate of $300,000, payable in bi-weekly installments\nconsistent with Company’s payroll practices.\nb) Additional Incentive. Effective July 1%, 2007, Employee will receive two option grants, one to purchase three hundred and twenty five\nthousand (325,000) Membership Units of GigOptix, and a second to purchase One Million (1,000,000) Membership Units of GigOptix in\naccordance with the Company’s Equity incentive Plan. The exercise price of both grants is $0.10 per unit. Vesting on the options to purchase\n325,000 Membership Units will be based on performance objectives as established by the GigOptix Management Board for the 2007 period\nand Fund raising performance for the 2008 period. This option grant will also include an extension of the 90 days exercise period after\ntermination as defined by the plan to five (5) years in recognition of participation in the 2007 Management Board without compensation.\nVesting on the option to purchase 1,000,000 Membership Units will be pro-rated based on monthly continuous service over four (4) years and\nthe exercise period after termination will be the standard 90 days, unless Management Board will approve different period.\nc) Payment. Payment of all compensation to Employee hereunder shall be made in accordance with the relevant Company policies in\neffect from time to time, including normal payroll practices, and shall be subject to all applicable employment and withholding taxes.\n \nd) Business Expenses. Upon submission of itemized expense statements in the manner specified by the Company, Employee shall be\nentitled\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT 2\nto direct payment and reimbursements for reasonable travel and other reasonable business expenses duly incurred by Employee in the\nperformance of his duties under this Agreement. Acceptable expenses will include, but are not limited to, charges for meals, Company\nemployee or customer entertainment, bridge tolls, lodging, air and ground transportation, cell phone, telephone, computer and broadband\ninternet services provided such are used for business purposes.\ne) Benefits Plans. Employee shall be eligible to participate in the Company’s benefit plans including, but not limited to, medical and\ndental plans, life and disability insurance plans and retirement plans, pursuant to their terms and conditions. Nothing in this Agreement shall\npreclude the Company from terminating or amending any existing employee benefit plan or program from time to time, provided, however, the\nCompany agrees to provide Employee during the term of this Agreement with health, medical, dental, and disability insurance, equivalent in\ncost and benefits to Employee, to that provided Employee as of the date of this Agreement. The Company further agrees it shall be responsible\nfor any additional incremental costs associated with providing such equivalent insurance benefits and will pay, or reimburse Employee for, all\nsuch incremental additional costs.\nf) Vacation. Employee shall be entitled to participate in the Company’s vacation plan and holiday plan, as long as the scheduling of\nEmployee’s vacation does not interfere with the Company’s normal business operations.\n4. Termination of Employment. Termination of employment will be subject to the following terms and conditions.\na) Termination For Cause. Notwithstanding anything herein to the contrary, the Company may terminate Employee’s employment\nhereunder “For Cause” for any one of the following reasons:\ni. The Employee’s willful harmful actions which do or are likely to result in material damage or embarrassment to Company, the\nCompany’s reputation, or the Company’s legitimate business interests;\nii. The Employee’s continued failure to follow the express direction and approved Resolutions of the Company Management\nBoard, following at least 60 days written notice.\niii. Commission of any act of fraud or falsification of any employment or Company records in any material way;\niv. The Employee’s abuse or illegal use of alcohol or other drugs or controlled substances;\nv. The Employee’s material breach of any of the terms or conditions of this Agreement, which breach is not cured within thirty\n(30) days following written notice from Company of such breach;\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT 3\nvi. Employee’s conviction of or entry of a guilty plea or plea of no contest with respect to a felony, including theft, embezzlement\nor misappropriation of funds from the Company; or\nvii. Voluntary resignation of the Employee in the absence of Good Reason as defined in Section 4 (c) of this Agreement.\nUpon termination of Employee’s employment with Company For Cause, the Employee shall not be entitled to the Termination Benefits\nin Section 4(d) of this Agreement. Company shall have no further obligation under this Agreement other than payment of accrued but unpaid\nBase Salary, vacation and bonus. [For Cause and Termination Benefits are defined terms.]\nb) Termination Without Cause. The Company may terminate Employee’s employment hereunder at any time without cause, provided,\nhowever, that Employee shall be entitled to the Termination Benefits set forth in Section 4(d) of this Agreement.\nc) Termination for Good Reason. Employee may terminate his employment with the Company for Good Reason (as herein defined). If\nEmployee terminates his employment with the Company for Good Reason (as herein defined), he shall be entitled to the Termination Benefits\nset forth in Section 4(d). For purposes of this Agreement, “Good Reason” shall mean any of the following: (i) any material breach by the\nCompany of this Agreement, which breach is not cured within thirty (30) days following written notice from Employee of such breach; or\n(ii) any significant change in the Employee’s duties and responsibilities, without mutual agreement between Employee and Company.\nd) Termination Benefits. If the Employee is terminated at any time during his employment under the provisions of 4(b) or 4(c), upon\nmutual execution of valid and comprehensive release of any and all claims between them, including an agreement by Company to indemnify,\nhold harmless and defend Employee against any and all existing claims or claims, other than for his gross negligence, fraud, willful\nmisconduct, that may be filed by third parties, including government agencies, naming Employee as a defendant either as an individual or as\nthe President & CEO of the Company, the Employee shall receive “Termination Benefits” as follows:\n1. 500,000 Membership Unit Options of the 1,000,000 Option Grant identified in Section 3(b) herein from the date of termination of\nemployment shall immediately vest and be granted an exercise period of five (5) years. The 500,000 Membership Unit Options subject to\nthis Section 4(d) (1) shall not apply to any Membership Unit Options that have been forfeited in accordance with the Equity Incentive\nPlan and the respective Membership Unit Option Grant Notice and shall be first allocated from any vested Membership Unit Options\nissued under Section 3(c) of this Agreement, and shall then be allocated to any unvested Membership Unit Options issued under\nSection 3(c) of this Agreement;\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT 4\n2. One hundred percent (100%) of the remaining 325,000 Membership Unit Option Grants, excluding any Option that have been\nforfeited in accordance with performance objectives, shall immediately vest and be granted an exercise period of five (5) years; and\n3. One time lump-sum payment, equivalent to twelve (12) months Base Salary pursuant to Section 3(a) herein, paid on the date of\ntermination of Employee. This Section 4(d)(3) shall terminate on January 1, 2013.\ne) Cooperation. After notice of termination, Employee shall cooperate with the Company, as reasonably requested by the Company, to\neffect a transition of Employee’s responsibilities and to ensure that the Company is aware of all matters being handled by the Employee.\n \nf) Disability of Employee. The Company may terminate this Agreement without liability, if Employee shall be permanently prevented\nfrom properly performing his essential duties hereunder with reasonable accommodation by reason of illness or other physical or mental\nincapacity for a period of more than one hundred twenty (120) consecutive days. Upon Employee hire date the Company will obtain a one (1)\nyear Disability insurance policy effective the determined date of disability as described below. Employee will have the opportunity to review\nand acknowledge the Company proposed insurance policy. Upon mutual agreement between Employee and the Company, the Company will\npurchase the mutually agreed one (1) year Disability policy. A medical doctor selected by written agreement of the Employer and the\nEmployee upon the request of either party by notice to the other will determine the disability of Employee. If the Employer and Employee\ncannot agree on the selection of a medical doctor, each of them will select a medical doctor and the two medical doctors will select a third\ndoctor who will determine whether the Employee has a disability. The determination of the medical doctor selected under this Section 4(f) will\nbe binding on both parties. The Employee must submit to a reasonable number of examinations by the medical doctor making the\ndetermination of disability under this Section 4(f), and Employee hereby authorizes the disclosures and release to the Employer of such\ndetermination and all supporting medical records. If the Employee is not legally competent, the Employee’s legal guardian or duly authorized\nattorney-in-fact will act in the Employee’s stead, under this Section 4(f), for the purposes of submitting the Employee to the examinations, and\nproviding the authorization of disclosure, required under this Section 4(f). Upon such termination, Employee shall be entitled to all accrued but\nunpaid Base Salary, accrued bonus (if any) and accrued vacation.\ng) Death of Employee. In the event of the death of Employee, the Company’s obligations hereunder shall be automatically cease and\nterminate; provided, however, that within 15 days the Company shall pay to Employee’s heirs or personal representatives Employee’s accrued\nbut unpaid Base Salary and accrued vacation accrued to the date of death.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT 5\n5. Confidential Information.\na) Definition of Confidential Information. The Company has built up an established and extensive trade and reputation in its’ respective\nindustries. The Company has developed and continues to develop commercially valuable technical and non-technical information\n(“Confidential Information™) that is proprietary and confidential and constitutes the Company’s “trade secrets” within the meaning of the Idaho\nTrade Secrets Act, Idaho Code Sections 48-801 - 48-807. Such Confidential Information, which is vital to the success of the Company’s\nbusiness, includes, but is not necessarily limited to: programs, computer programs, system documentation, data compilations, manuals,\nmethods, techniques, processes, patented and/or unpatented technology, research, know-how, development, designs, devices, inventions, the\nidentities of Company’s customers, Company’s suppliers, contracts with suppliers and customers, sales proposals, pricing policies, cost\ninformation, financial information, business plans, specialized requests of Company’s customers, and other materials and documents\ndeveloped by Company. Confidential Information also includes special hardware, product hardware, related software and related\ndocumentation, either owned by Company or in Company’s possession under an agreement of nondisclosure. Through Employee’s\nemployment, Employee may become acquainted with or contribute to the Company’s Confidential Information through inventions,\ndiscoveries, improvements, software development, and/or in other ways. Confidential Information does not include customer names, programs,\nreports or other improvements to documentation, which were owned by Employee prior to being employed by Company. Further, Confidential\nInformation does not include information (i) that was in the public domain at the time of initial disclosure by or enters the public domain\nthereafter through no fault of Employee; (ii) that was already in the possession of Employee at the time of the initial disclosure and not subject\nto any other nondisclosure obligations; (iii) that is independently developed by Employee, outside the term of his employment with the\nCompany, without access to the subject Confidential Information; (iv) that is received by Employee from a third party with no confidential\nrestrictions; or (v) for which disclosure is compelled by a judicial or other governmental order, provided Employee provides Employer with\nprompt notice of such order before disclosure.\nb) Employee Access to Confidential Information. As President & CEO of Company, Employee will need broad access to Company’s\nConfidential Information. Employee agrees that to the extent reasonably possible he will limit access to said Confidential Information under\nhis control only to Company’s other employees whose job functions reasonably necessitate access to such Confidential Information and to\nthird parties only on a need to know basis.\n) Nondisclosure of Confidential Information. Employee shall not, at any time, either during or subsequent to employment, directly or\nindirectly, appropriate, disclose or divulge any Confidential Information to any person not then employed by Company or any of DBSI’s\naffiliates, unless authorized or directed to do so by Company. Regarding all other third parties, Employee shall use good practices to ensure\nthat a signed confidentiality agreement for the\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT 6\nbenefit of Company is or has been obtained from the third party to whom Confidential Information is being disclosed and that all Confidential\nInformation so disclosed is clearly marked “Confidential.”\nd) Return of Confidential and Other Information. All Confidential Information provided to Employee, and all documents and things\nprepared by Employee in the course of Employee’s employment by Company, including but not necessarily limited to correspondence,\ndrawings, blueprints, manuals, letters, notes, lists, notebooks, reports, flow-charts, computer programs, proposals, Day Timers, planners,\ncalendars, schedules, discs, data tapes, financial plans and information, business plans, and other documents and records, whether in hard copy,\nmagnetic media or otherwise, and any and all copies thereof, are the exclusive property of Company and shall be returned immediately to\nCompany upon termination of employment or upon Company’s request at any time.\ne) Ownership of Confidential Information. Employee hereby grants to Company, and Company hereby accepts, the entire right, title, and\ninterest of Employee in and to any of the Confidential Information created or developed by Employee during the term of his employment\n(whether created or developed within or outside the course and scope of Employee’s employment by Company), including, but not limited to,\nall patents, copyrights, trade secrets, and other proprietary rights in or based on the Confidential Information. If the Confidential Information or\nany portion thereof is copyrightable, it shall be deemed to be a “work made for hire,” as such term is defined in the copyright laws of the\nUnited States. Employee shall cooperate with Company or its designees and execute assignments, oaths, declarations, and other documents\nprepared by Company, to effect the terms of this Section 5(e) or to perfect or enforce any proprietary rights resulting from or related to this\nAgreement. Within reason and in accordance with industry practice, such cooperation and execution shall be at no additional compensation to\nEmployee; provided, however, Company shall reimburse Employee for reasonable out-of-pocket expenses incurred at the specific request of\nCompany,\n6. Non-competition Obligations. During Employee’s employment with Company, and for a period of twelve (12) months immediately\nfollowing termination (the “Non-competition Obligation”) of such employment, Employee will not, directly or indirectly, at any place in the\nworld, engage or become interested (as owner, stockholder, partner, director, officer, member, creditor, consultant, or employee) in any\nbusiness in competition with the business conducted by Company at any time during Employee’s employment with Company. Employee\nacknowledges that Company is doing business throughout the world, that Employee is reasonably expected to have contact with Company’s\ncustomers throughout the world during the term of Employee’s employment with Company, and that the worldwide geographic scope of this\ncovenant is reasonably necessary to protect Company’s legitimate business interests.\n \n7. Customer Non-Solicitation. Employee will not, during the term of employment with Company and for a period of twelve (12) months\nimmediately following termination of employment, solicit, divert, take away from the\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT 7\nCompany, or attempt to solicit, divert or take away, any of Company’s customers with related business or the related business or patronage of\nany such customers, either for himself or on behalf of any other person, partnership, corporation or other entity. This restriction against\nsolicitation shall apply only to solicitations, which directly or indirectly compete with the business of the Company that Company is/was\nengaged in while Employee worked for Company.\n8. Co-Emplovee Non-Solicitation. Employee will not, during the term of employment with Company and for a period of twelve (12) months\nfollowing the termination of such employment for any reason, solicit, recruit and hire any other employee of Company, either for himself or on\nbehalf of any other person, partnership, corporation or other entity.\n9. Enforcement.\na) Reasonableness of Restrictions. Employee and Company acknowledges that compliance with this Agreement is reasonable and\nnecessary to protect both parties’ legitimate business interests, including but not limited to both parties’ goodwill.\nb) Irreparable Harm. Employee and Company acknowledges that a breach of either party’s obligations under this Agreement will result\nin great, irreparable and continuing harm and damage to the other party for which there is no adequate remedy at law.\nc) Injunctive Relief. Employee agrees that in the event Employee breaches this Agreement, Company shall be entitled to seek, from any\ncourt of competent jurisdiction, preliminary and permanent injunctive relief to enforce the terms of this Agreement, in addition to any and all\nmonetary damages allowed by law, against Employee. Further, Company agrees that in the event Company breaches this Agreement,\nEmployee shall be entitled to seek, from any court of competent jurisdiction, preliminary and permanent injunctive relief to enforce the terms\nof this Agreement, in addition to any and all monetary damages allowed by law, against Company.\nd) Extension of Covenants. In the event Employee violates any one or more of the covenants contained in Sections 6 through 8 of this\nAgreement, Employee agrees that the running of the term of each covenant so violated shall be tolled during the period(s) of any such violation\nand the pendency of any litigation arising out of any such violation. Further, in the event Company violates any one or more of the covenants\ncontained in Sections 6 through 8 of this Agreement, Company agrees that the running of the term of each covenant so violated shall be tolled\nduring the period(s) of any such violation and the pendency of any litigation arising out of any such violation.\ne) Judicial Modification. The parties have attempted to limit the Employee’s right to compete only to the extent necessary to protect\nCompany from unfair business practices and/or unfair competition. The parties recognize, however, that reasonable people may differ in\nmaking such a determination.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT 8\nConsequently, the parties hereby agree that, if the scope or enforceability of the restrictive covenant is in any way disputed at any time, a court\nor other trier of fact may modify and enforce the covenant to the extent that it believes to be reasonable under the circumstances existing at that\ntime.\nf) Attorney Fees. In the event it becomes necessary for either party to this Agreement to institute a suit at law or in equity for the\npurposes of enforcing any of the provisions of this Agreement, the prevailing party shall be entitled to recover said party’s reasonable\nattorney’s fees, plus court costs and expenses, from the non-prevailing party.\n \ng) Withholding from Final Paycheck. If not prohibited by federal, state or local laws, Employee expressly authorizes Company to\nwithhold and deduct from Employee’s final wages any amounts owed by Employee to Company at the time of the termination of employment,\nincluding but not limited to the value of unreturned or willfully damaged Company property. Employee further expressly agrees to repay to\nCompany any additional agreed-upon sums owed by Employee to Company (above that which can be withheld) immediately upon termination\nof Employee’s employment.\nh) Alternative Dispute Resolution. In the event a dispute between the parties arises under this Agreement, prior to filing an action of any\nkind each Party agrees to mediation of the dispute or disputes and shall participate in good faith. The mediation shall be conducted by a\nprofessional neutral mediator under the Mediation Rules of the American Arbitration Association but not necessarily in that forum.\n10. Indemnity. Employee warrants and represents that Employee has not knowingly and intentionally violated, is not knowingly and\nintentionally violating, and will not knowingly and intentionally violate any of the terms or conditions of any prior employment agreement,\nrestrictive covenant, or other similar agreement entered into by Employee while in the employment of any other company; that Employee has\nnot knowingly and intentionally given and will not knowingly and intentionally give to the Company at any time any customer list, trade\nsecret, or any other item of confidential information, obtained or received while in the employment of any other company in violation of any\nemployment agreement, restrictive covenant or similar agreement entered into while in the employment of any other company; that, to the best\nof Employee’s knowledge. Employee’s employment with the Company as contemplated and provided for hereby is not materially restricted or\nmaterially limited in any way by any such employment agreement or restrictive covenant or by operation of any state, federal or local\nregulation, statute or other law of any kind, name or nature, including but not limited to trade secret laws and immigration laws; and that\nEmployee is in all respects duly qualified and eligible to work for the Company. In the event of a final legal adjudication (after exhausting any\nright of appeal) of Employee’s material violation of one or more of the warranties or representations set forth above in this section, Employee\nagrees to indemnify the Company for all damages, costs and expenses, including reasonable attorney fees, which the Company may have to\npay in connection with a legal or administrative action against the Company or\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT 9\nEmployee arising there from; provided, however, in the event any damages, costs and expenses are incurred by the Company for which\nEmployee is otherwise obligated to indemnify the Company are covered under any insurance policy or policies of the Company, then the\nCompany shall be obligated to exhaust all available insurance as a condition to the exercise of its right of indemnification hereunder (and the\nCompany waives all rights of subrogation in connection therewith) and Employee’s indemnification obligation hereunder shall be reduced in\nproportion to the extent of such insurance. Company warrants and represents it has no knowledge as of the date hereof that Employee is or\nmay become in violation of any of the warranties and representations made by him above.\n11. Miscellaneous.\na) Survival. Employee understands that this Agreement shall be effective as of the date first written above and that the terms of this\nAgreement shall remain in full force and effect not only during the continuation of Employee’s employment, but also after the termination of\nemployment for any reason by Company or Employee.\nb) Waiver. Failure of the Company or Employee to exercise or otherwise act with respect to any of its rights under this Agreement shall\nnot be construed as a waiver of any breach, nor prevent the Company or Employee from thereafter enforcing strict compliance with any and all\nterms of this Agreement.\n \nc) Severability. If any part of this Agreement shall be adjudicated to be invalid or unenforceable, as to duration, territory or otherwise,\nthen such part shall be deemed deleted from this Agreement or amended, as the case may be, in order to render the remainder of this\nAgreement valid and enforceable.\nd) Agreement Binding. This Agreement shall be binding upon and inure to the benefit of Company, Company’s successors and assigns,\nEmployee and Employee’s heirs, executors, administrators and legal representatives.\ne) Governing Law. This Agreement is made and entered into in the State of California, where Company has its principal place of\nbusiness, and concerns employment situated in said state. This Agreement shall be interpreted and construed in accordance with the laws of the\nState of California.\nf) Titles and Captions. All section and paragraph titles and captions contained in this Agreement are for convenience only and shall not\nbe deemed part of the context nor affect the construction or interpretation of this Agreement.\n \ng) Entire Agreement. This Agreement, which includes all Attachments incorporated herein and attached hereto, contains all the\nunderstandings and agreements between the parties concerning matters set forth in this Agreement. The terms of this Agreement supersede any\nand all prior statements, representations and agreements by or between Company and Employee, or either of them, concerning the matters set\nforth in this Agreement.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT 10\nEmployee acknowledges that no person who is an agent or employee of Company may orally or by conduct modify, delete, vary, or contradict the terms or conditions of this Agreement or this paragraph. This Agreement may be modified only by a written agreement signed by both parties.\nh) Separate Counsel. Company’s attorneys have not represented Employee, and Employee has been advised that it is important for him to seek legal advice and representation in this matter.\nThe parties acknowledge and agree that they have read and understood the entire contents of this Agreement and Employee acknowledges that he has received a copy of this Agreement.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\nCompany:\nGigOptix LLC,\na California limited liability company\n/s/ Paul Judge\nBy: Paul Judge\nIts: Compensation Committee Member, and Member of\nthe Management Board\nEmployee:\n/s/ Avi Katz\nAvi Katz\n11\nATTACHMENT “A”\nMANAGEMENT BY OBJECTIVES (MBO’S)\nUpon execution of this Agreement, Employee and Company shall mutually establish and confirm through a Company Management Board\nResolution the following fair and reasonable goals (MBO’s) which, when met, shall remove restrictions on certain Company Membership Units,\nrelated in Section 3(b) of this Employment, Confidentiality and Non-Competition Agreement:\n* 250,000 Restricted Membership Unit grants with 2007 MBO and grant restrictions to be mutually determined between the Management\nBoard and Employee.\n* 75,000 restricted Membership Unit grants with completion of fund raising, with Management Board approval, during 2007 & 2008,\nwhich does not include the 2007 approved Financial Plan or funds approved in association with the acquisition of Helix AG.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT 12\nATTACHMENT “B”\nCEO & President Duties and Responsibilities\n1. Employee shall report directly to Company’s Management Board. Employee shall own all responsibilities for leading, planning, driving and\nexecuting all vision and business initiatives of the Company, working under the general directions and guidelines of the Board which will make\nassignments in terms of broadly defined missions.\n2. Employee shall provide leadership, experience and corporate governance required to transform the vision and product offerings of Company into a\ngrowing profitable business with the goal of maximizing’ ROI.\n3. Employee’s key responsibilities include:\na. The initial responsibility of Employee is to immediately commence an assessment of the viability of the Company and the likelihood of\nfuture growth under the current or other strategic plans, based on the quality and differentiation of its technology, and the preparation of a\nrecommendation to the Board to proceed toward fund raising and growth or other potential plans in the best interest of the Company’s Members.\nb. If the Board determines the direction the Company shall take under the MBO’s above, Employee shall develop a new business model\naccordingly, such as to execute the transition from a customer NRE-focus company to a company with a product portfolio focused on profitable\nreoccurring product revenue.\nc. In any decision scenario, Employee shall develop clear and precise business plans with appropriate strategies, objectives, initiatives, and\nindicator measurements. He shall maintain focus and guide the Company’s employees to consistent execution of approved business plans, as\napproved by the Board, reporting to the Board both quarterly and annually.\nd. Employee shall be responsible for building a strong, professional and highly motivated Executive Team, including new executives, with\nBoard involvements and approval, all of whom are capable of contributing to the Company goal of sustained and profitable growth.\ne. Employee shall articulate and implement the Company’s vision to create a business plan, goals, and objectives that will evolve with\ncontinued growth of profitability by balancing technical and business resources.\nf. Employee shall lead Company toward the achievement of aggressive sales growth targets for 2007, 2008 and beyond by rapidly penetrating\ntarget customer accounts and markets while establishing competitive barriers for entry, producing a product roadmap and driving new product and\ntechnology introductions to address expanding market opportunities using strong domestic and international industry relationships as leverage into\nsales, particularly with line card providers and system integrators, as well as with OEM partners.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT 13\ng. Employee shall seek adequate funding sufficient to meet Company objectives: to grow the business, as per mutually agreed upon guidelines\nbetween the Employee and the Board. The employee will work with the current investors to lead a broad and successful fund raising process.\nh. Employee shall develop Business Plans with measurable initiatives and strategies that are aligned. These Business Plans will be\nprofessionally presented to the Board, and in some cases involve the Board prior to presentation, for formal Board approval. The Board for\nconsistent execution of approved Business Plans, relative initiatives, and MBO’s will hold Employee and his team accountable. Employee will be\npro-active involving the Board when Business Plans appear not to be achieved and thus developing a new course of execution pro-actively and\nachieve Board approval of revised Business Plans.\ni. Employee shall build a company culture of excellence based on performance, integrity, accountability, customer service, teamwork, candor\nand respect for others (Live, Love, Learn, Leave a Legacy).\nj. Employee shall seek to expand Company’s intellectual property portfolio, and secure all existing IP. He will also work with the investor’s\nlegal department to secure existing IP under appropriate patents, and to survey the IP market for potential infringements on the company’s IP, as well\nas potential infringements of the company on existing IP.\nk. Help to expand and strengthen the Board by recommending and recruiting, with the Board, new members including representatives of\nindustry and the relevant professions.\n1. Work with the Board to develop valuation strategies, which would achieve a value return to investors and shareholders.\nThis CEO & President Duties and Responsibilities are considered a “working document” that may change from time to time and in such event will\nbe documented and mutually agreed between Employee and Board.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT 14\nGIGOPTIX LL.C\nEQUITY INCENTIVE PLAN\nOPTION GRANT NOTICE\nGigOptix LLC, (the “Company”) pursuant to its Equity Incentive Plan (the “Plan”), hereby grants to Optionholder an option to purchase the number\nof the Company’s Units set forth below. This option is subject to all of the terms and conditions as set forth herein and in the Unit Option\nAgreement, the Plan, the Notice of Exercise and the Company’s Operating Agreement (the “Operating Agreement”). The Unit Option Agreement,\nthe Plan, the Notice of Exercise and the Operating Agreement are attached hereto and incorporated herein their entirety.\nOptionholder: Avi Katz\nDate of Grant: August 1, 2007\nDate Option Rights are Terminated if Not Exercised*: August 1, 2017\nNumber of Units Subject to Option: 1,000,000\nExercise Price (Per Unit): $0.10\nTotal Exercise Price: One Hundred Thousand Dollars ($100,000)\nExercise Schedule: Same as Vesting Schedule\nVesting Schedule: Options vest at the rate of /4 the first year based on the anniversary of the Grant date and at a rate of one thirty-sixth (*/36) of the\nremaining units per month over the remaining three years.\nDate of Vesting Number of Unit Options that can be Exercised\nAugust 1, 2008 250,000\nFirst of each month thereafter through December 31, 2011 Contact your Plan Administrator for your current vested amount\n* Option may terminate on earlier events, such as termination of Continuous Service, Optionholder’s Disability or Death. See the Unit Option\nAgreement and the Plan for further details.\nPayment: By cash or check\nConfidentiality: The undersigned Optionholder acknowledges and agrees that the information contained in this Option Grant Notice shall remain\nconfidential and Optionholder shall not divulge or reveal, either directly or indirectly, the amount or extent of equity or options granted herein or any\nother material term to any other co-worker, employee or third party (other than a license professional advisor) without the express written consent of\nthe Company. Any breach of this confidentiality agreement may result in complete forfeiture of the option or equity.\nAdditional Terms/Acknowledgments: Options shall not be exercised prior to January 1, 2008. The undersigned Optionholder acknowledges\nreceipt of, and understands and agrees to, this Option Grant Notice, the Unit Option Agreement, the Plan and the Operating Agreement.\nOptionholder further acknowledges that as of the Date of Grant, this Option Grant Notice, the Unit Option Agreement, the Plan and the Operating\nAgreement set forth the entire understanding between the Optionholder and the Company regarding the purchase of Units in the Company.\nOptionholder also agrees to execute all such further documentation as the Board of Managers may reasonably require.\nGIGOPTIX LLC: OPTIONHOLDER:\nBy: /s/ Paul F. Judge Date: 3/26/08 /s/ Avi Katz Date: 3/26/08\nPaul F. Judge, Management Board Member (Name)\nATTACHMENTS: Unit Option Agreement, Plan, Notice of Exercise, Operating Agreement and Memorandum to Plan Participants.\nGIGOPTIX LL.C\nEQUITY INCENTIVE PLAN\nOPTION GRANT NOTICE\nGigOptix LLC, (the “Company”) pursuant to its Equity Incentive Plan (the “Plan”), hereby grants to Optionholder an option to purchase the number\nof the Company’s Units set forth below. This option is subject to all of the terms and conditions as set forth herein and in the Unit Option\nAgreement, the Plan, the Notice of Exercise and the Company’s Operating Agreement (the “Operating Agreement”). The Unit Option Agreement,\nthe Plan, the Notice of Exercise and the Operating Agreement are attached hereto and incorporated herein their entirety.\nOptionholder: Avi Katz\nDate of Grant: August 1, 2007\nDate Option Rights are Terminated if Not Exercised*: August 1, 2017\nNumber of Units Subject to Option: 325,000\nExercise Price (Per Unit): $0.10\nTotal Exercise Price: Thirty Two Thousand Five Hundred Dollars ($32,500)\nExercise Schedule: Same as Vesting Schedule except that no units can be exercised prior\nto January 1, 2008.\nExercise Term: In the event the Optionholder’s Continuous Service Terminates, the\nOptionholder may exercise his or her vested Options but only within\nsuch period of time ending on the earlier of (i) the date five years\nfollowing termination of the Optionholders Continuous Service, or\n(ii) the expiration of the term of the Option as set forth in this Option\nGrant.\nVesting Schedule: Options vesting is based on performance as governed by the GigOptix Management Board.\nDate of Vesting Number of Unit Options that can be Exercised\nAugust 1, 2007 250,000%**\nTBD (effective on completion date) An additional 75,000 eligible for vesting, based on successfully completing a\nfunding event as governed by GigOptix Management Board.\n* Option may terminate on earlier events, such as termination of Continuous Service, Optionholder’s Disability or Death. See the Unit Option\nAgreement and the Plan for further details.\n** May only be exercised after January 1, 2008.\nPayment: By cash or check\nConfidentiality: The undersigned Optionholder acknowledges and agrees that the information contained in this Option Grant Notice shall remain\nconfidential and Optionholder shall not divulge or reveal, either directly or indirectly, the amount or extent of equity or options granted herein or any\nother material term to any other co-worker, employee or third party (other than a license professional advisor) without the express written consent of\nthe Company. Any breach of this confidentiality agreement may result in complete forfeiture of the option or equity.\nAdditional Terms/Acknowledgments: Options shall not be exercised prior to January 1, 2008. The undersigned Optionholder acknowledges\nreceipt of, and understands and agrees to, this Option Grant Notice, the Unit Option Agreement, the Plan and the Operating Agreement.\nOptionholder further acknowledges that as of the Date of Grant, this Option Grant Notice, the Unit Option Agreement, the Plan and the Operating\nAgreement set forth the entire understanding between the Optionholder and the Company regarding the purchase of Units in the Company.\nOptionholder also agrees to execute all such further documentation as the Board of Managers may reasonably require.\nGIGOPTIX LLC: OPTIONHOLDER:\nBy: /s/ Paul F. Judge Date: 3/26/08 /s/ Avi Katz Date: 3/26/08\nPaul F. Judge, Management Board Member (Name)\nATTACHMENTS: Unit Option Agreement, Plan, Notice of Exercise, Operating Agreement and Memorandum to Plan Participants. EX-10.23 6 ex1023.htm EMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT - AVI\nKATZ\nExhibit 10.23\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION\nAGREEMENT\nThis Employment, Confidentiality and Non-competition Agreement (this "Agreement") is made and entered into as of the 1st day of January\n2008, by and between GigOptix LLC, an Idaho limited liability company (herein referred to as "Company"), and Avi Katz ("Employee").\nA. Effective April 9, 2007, the Company and Employee entered into an Employment, Confidentiality and Non-competition Agreement ("1st\nAgreement") wherein the Employee provided management services to iTerra Communication LLC ("iTerra Communications").\nB. Under the direction of Employee, iTerra Communications was reorganized and all of its assets were transferred to Company on July 1,\n2007.\nC. Employee and Company desire to terminate the 1st Agreement and establish this new Agreement to accommodate Employee's transfer from\niTerra Communication to GigOptix on July 1, 2007 Furthermore, execution of this Agreement shall terminate the 1st Agreement effective April 9,\n2007 between Employee and Company.\nTherefore, in consideration of the mutual promises and covenants contained in this Agreement, the receipt and legal sufficiency of which\nconsideration are hereby acknowledged, the parties hereby agree as follows:\n1. Term.\na) Term. Company hereby employs Employee on a full time basis to serve as Chief Executive Officer (CEO) & President of the\nCompany effective Monday, July 1st, 2007, subject to the terms and conditions herein.\nb) Duties and Responsibilities. Employee shall report to the Company's Chairman of the Board and Management Board. The Employee\nshall have each and all of the duties and responsibilities of the CEO & President position, as set forth in Attachment B, which is incorporated\nin its entirety herein, and such other duties on behalf of the Company as may be reasonably assigned, and mutually agreed by and with\nEmployee, from time to time by Company's Management Board (it being acknowledged by the Company that Employee may terminate this\nAgreement for Good Reason in accordance with Section 4(c) herein in the event he does not so mutually agree).\n2. Employee Performance. Employee accepts employment with Company on the terms and conditions provided in this Agreement. Employee\nrecognizes Employee owes to Company duties of loyalty, fidelity and obedience in all matters pertaining to such employment. Employee shall\nserve Company diligently and faithfully, shall timely perform all duties to the best of Employee's ability and in compliance with Company's\nreasonable standards of performance, and shall devote Employee's time and best efforts to the conduct of Company's business. Company\nacknowledges that from time to time persons in the High-Tech\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n1\nindustry, in particular, but not limited to, the semiconductor, eCommerce, software and security, and in the real-estate industry, seek\nEmployee's advice or consultation. Provided that Employee does not disclose Confidential Information to such persons or intentionally act\nagainst Employer's interests, the Executive may provide such advice or consultation if it does not materially interfere with Executive's duties\nhereunder.\nNotwithstanding the foregoing, the parties of this Agreement recognize and agree that the Employee may engage in passive personal\ninvestments and other business activities which do not conflict, directly or indirectly, with the business affairs of the Company or interfere with\nEmployee's performance of Employee's duties and responsibilities hereunder. In that regard, Employee may serve on the Board(s) of Directors\nor\nManagement Board(s) of up to three (3) external companies of Employee's choice, unless larger number is approved by the iTerra Board\nof\nManagement, so long as service on any of such Boards simultaneously with Employee's service for the Company does not conflict or interfere\nwith performance of Employee's duties and responsibilities hereunder.\n3. Compensation. In consideration for the services of Employee rendered to Company pursuant to the terms of this Agreement, and subject\nto\nthe full material performance of Employee's obligations hereunder, Employee shall receive compensation and benefits as follows:\na) Base Salary. Employee shall be paid a base salary ("Base Salary") at the annual rate of $300,000, payable in bi-weekly installments\nconsistent with Company's payroll practices.\nb) Additional Incentive. Effective July 1st, 2007, Employee will receive two option grants, one to purchase three hundred and twenty five\nthousand (325,000) Membership Units of GigOptix, and a second to purchase One Million (1,000,000) Membership Units of GigOptix in\naccordance with the Company's Equity incentive Plan. The exercise price of both grants is $0.10 per unit. Vesting on the options to purchase\n325,000\nMembership Units will be based on performance objectives as established by the GigOptix Management Board for the 2007 period\nand Fund raising performance for the 2008 period. This option grant wil also include an extension of the 90 days exercise period after\ntermination as defined by the plan to five (5) years in recognition of participation in the 2007 Management Board without compensation.\nVesting on the option to purchase 1,000,000 Membership Units will be pro-rated based on monthly continuous service over four (4) years and\nthe exercise period after termination will be the standard 90 days, unless Management Board will approve different period.\nc) Payment Payment of all compensation to Employee hereunder shall be made in accordance with the relevant Company policies in\neffect from time to time, including normal payroll practices, and shall be subject to all applicable employment and withholding taxes.\nd) Business Expenses. Upon submission of itemized expense statements in the manner specified by the Company, Employee shall be\nentitled\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n2\nto direct payment and reimbursements for reasonable travel and other reasonable business expenses duly incurred by Employee in the\nperformance of his duties under this Agreement. Acceptable expenses will include, but are not limited to, charges for meals, Company\nemployee or customer entertainment, bridge tolls, lodging, air and ground transportation, cell phone, telephone, computer and broadband\ninternet services provided such are used for business purposes.\ne) Benefits Plans. Employee shall be eligible to participate in the Company's benefit plans including, but not limited to, medical and\ndental plans, life and disability insurance plans and retirement plans, pursuant to their terms and conditions. Nothing in this Agreement shall\npreclude the Company from terminating or amending any existing employee benefit plan or program from time to time, provided, however, the\nCompany agrees to provide Employee during the term of this Agreement with health, medical, dental, and disability insurance, equivalent in\ncost and benefits to Employee, to that provided Employee as of the date of this Agreement. The Company further agrees it shall be responsible\nfor any additional incremental costs associated with providing such equivalent insurance benefits and will pay, or reimburse Employee for, all\nsuch incremental additional costs.\nf) Vacation. Employee shall be entitled to participate in the Company's vacation plan and holiday plan, as long as the scheduling of\nEmployee's vacation does not interfere with the Company's normal business operations.\n4. Termination of Employment. Termination of employment will be subject to the following terms and conditions.\na) Termination For Cause. Notwithstanding anything herein to the contrary, the Company may terminate Employee's employment\nhereunder "For Cause" for any one of the following reasons:\ni. The Employee's willful harmful actions which do or are likely to result in material damage or embarrassment to Company, the\nCompany's reputation, or the Company's legitimate business interests;\nii. The Employee's continued failure to follow the express direction and approved Resolutions of the Company Management\nBoard, following at least 60 days written notice.\niii. Commission of any act of fraud or falsification of any employment or Company records in any material way;\niv. The Employee's abuse or illegal use of alcohol or other drugs or controlled substances;\nV. The Employee's material breach of any of the terms or conditions of this Agreement, which breach is not cured within thirty\n(30) days following written notice from Company of such breach;\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n3\nvi. Employee's conviction of or entry of a guilty plea or plea of no contest with respect to a felony, including theft, embezzlement\nor misappropriation of funds from the Company; or\nvii. Voluntary resignation of the Employee in the absence of Good Reason as defined in Section 4 (c) of this Agreement.\nUpon termination of Employee's employment with Company For Cause, the Employee shall not be entitled to the Termination Benefits\nin Section 4(d) of this Agreement. Company shall have no further obligation under this Agreement other than payment of accrued but unpaid\nBase Salary, vacation and bonus. [For Cause and Termination Benefits are defined terms.]\nb) Termination Without Cause. The Company may terminate Employee's employment hereunder at any time without cause, provided,\nhowever, that Employee shall be entitled to the Termination Benefits set forth in Section 4(d) of this Agreement.\nc) Termination for Good Reason. Employee may terminate his employment with the Company for Good Reason (as herein defined). If\nEmployee terminates his employment with the Company for Good Reason (as herein defined), he shall be entitled to the Termination Benefits\nset forth in Section 4(d). For purposes of this Agreement, "Good Reason" shall mean any of the following: (i) any material breach by the\nCompany of this Agreement, which breach is not cured within thirty (30) days following written notice from Employee of such breach; or\n(ii) any significant change in the Employee's duties and responsibilities, without mutual agreement between Employee and Company.\nd) Termination Benefits. If the Employee is terminated at any time during his employment under the provisions of 4(b) or 4(c), upon\nmutual execution of valid and comprehensive release of any and all claims between them, including an agreement by Company to indemnify,\nhold harmless and defend Employee against any and all existing claims or claims, other than for his gross negligence, fraud, willful\nmisconduct, that may be filed by third parties, including government agencies, naming Employee as a defendant either as an individual or as\nthe President & CEO of the Company, the Employee shall receive "Termination Benefits" as follows:\n1. 500,000 Membership Unit Options of the 1,000,000 Option Grant identified in Section 3(b) herein from the date of termination of\nemployment shall immediately vest and be granted an exercise period of five (5) years. The 500,000 Membership Unit Options subject to\nthis Section 4(d) (1) shall not apply to any Membership Unit Options that have been forfeited in accordance with the Equity Incentive\nPlan and the respective Membership Unit Option Grant Notice and shall be first allocated from any vested Membership Unit Options\nissued under Section 3(c) of this Agreement, and shall then be allocated to any unvested Membership Unit Options issued under\nSection 3(c) of this Agreement;\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n4\n2. One hundred percent (100%) of the remaining 325,000 Membership Unit Option Grants, excluding any Option that have been\nforfeited in accordance with performance objectives, shall immediately vest and be granted an exercise period of five (5) years; and\n3. One time lump-sum payment, equivalent to twelve (12) months Base Salary pursuant to Section 3(a) herein, paid on the date of\ntermination of Employee. This Section 4(d)(3) shall terminate on January 1, 2013.\ne)\nCooperation. After notice of termination, Employee shall cooperate with the Company, as reasonably requested by the Company,\nto\neffect a transition of Employee's responsibilities and to ensure that the Company is aware of all matters being handled by the Employee.\nf) Disability. of Employee. The Company may terminate this Agreement without liability, if Employee shall be permanently prevented\nfrom properly performing his essential duties hereunder with reasonable accommodation by reason of illness or other physical or mental\nincapacity for a period of more than one hundred twenty (120) consecutive days. Upon Employee hire date the Company will obtain a one (1)\nyear Disability insurance policy effective the determined date of disability as described below. Employee will have the opportunity to review\nand acknowledge the Company proposed insurance policy. Upon mutual agreement between Employee and the Company, the Company will\npurchase the mutually agreed one (1) year Disability policy. A medical doctor selected by written agreement of the Employer and the\nEmployee upon the request of either party by notice to the other will determine the disability of Employee. If the Employer and Employee\ncannot agree on the selection of a medical doctor, each of them will select a medical doctor and the two medical doctors will select a third\ndoctor who will determine whether the Employee has a disability. The determination of the medical doctor selected under this Section 4(f) will\nbe binding on both parties. The Employee must submit to a reasonable number of examinations by the medical doctor making the\ndetermination of disability under this Section 4(f), and Employee hereby authorizes the disclosures and release to the Employer of such\ndetermination and all supporting medical records. If the Employee is not legally competent, the Employee's legal guardian or duly authorized\nattorney-in-fact will act in the Employee's stead, under this Section 4(f), for the purposes of submitting the Employee to the examinations, and\nproviding the authorization of disclosure, required under this Section 4(f). Upon such termination, Employee shall be entitled to all accrued but\nunpaid Base Salary, accrued bonus (if any) and accrued vacation.\ng) Death of Employee. In the event of the death of Employee, the Company's obligations hereunder shall be automatically cease and\nterminate; provided, however, that within 15 days the Company shall pay to Employee's heirs or personal representatives Employee's accrued\nbut unpaid Base Salary and accrued vacation accrued to the date of death.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n5\n5. Confidential Information.\na) Definition of Confidential Information. The Company has built up an established and extensive trade and reputation in its' respective\nindustries. The Company has developed and continues to develop commercially valuable technical and non-technical information\n("Confidential Information") that is proprietary and confidential and constitutes the Company's "trade secrets" within the meaning of the Idaho\nTrade Secrets Act, Idaho Code Sections 48-801 48-807. Such Confidential Information, which is vital to the success of the Company's\nbusiness, includes, but is not necessarily limited to: programs, computer programs, system documentation, data compilations, manuals,\nmethods, techniques, processes, patented and/or unpatented technology, research, know-how, development, designs, devices, inventions, the\nidentities of Company's customers, Company's suppliers, contracts with suppliers and customers, sales proposals, pricing policies, cost\ninformation, financial information, business plans, specialized requests of Company's customers, and other materials and documents\ndeveloped by Company. Confidential Information also includes special hardware, product hardware, related software and related\ndocumentation, either owned by Company or in Company's possession under an agreement of nondisclosure. Through Employee's\nemployment, Employee may become acquainted with or contribute to the Company's Confidential Information through inventions,\ndiscoveries, improvements, software development, and/or in other ways. Confidential Information does not include customer names, programs,\nreports or other improvements to documentation, which were owned by Employee prior to being employed by Company. Further, Confidential\nInformation does not include information (i) that was in the public domain at the time of initial disclosure by or enters the public domain\nthereafter through no fault of Employee; (ii) that was already in the possession of Employee at the time of the initial disclosure and not subject\nto\nany other nondisclosure obligations; (iii) that is independently developed by Employee, outside the term of his employment with the\nCompany, without access to the subject Confidential Information; (iv) that is received by Employee from a third party with no confidential\nrestrictions; or (v) for which disclosure is compelled by a judicial or other governmental order, provided Employee provides Employer with\nprompt notice of such order before disclosure.\nb) Employee Access to Confidential Information. As President & CEO of Company, Employee will need broad access to Company's\nConfidential Information Employee agrees that to the extent reasonably possible he will limit access to said Confidential Information under\nhis control only to Company's other employees whose job functions reasonably necessitate access to such Confidential Information and to\nthird parties only on a need to know basis.\nc) Nondisclosure of Confidential Information. Employee shall not, at any time, either during or subsequent to employment, directly or\nindirectly, appropriate, disclose or divulge any Confidential Information to any person not then employed by Company or any of DBSI's\naffiliates, unless authorized or directed to do so by Company. Regarding all other third parties, Employee shall use good practices to ensure\nthat a signed confidentiality agreement for the\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n6\nbenefit of Company is or has been obtained from the third party to whom Confidential Information is being disclosed and that all Confidential\nInformation so disclosed is clearly marked "Confidential."\nd) Return of Confidential and Other Information. All Confidential Information provided to Employee, and all documents and things\nprepared by Employee in the course of Employee's employmen by Company, including but not necessarily limited to correspondence,\ndrawings, blueprints, manuals, letters, notes, lists, notebooks, reports, flow-charts, computer programs, proposals, Day Timers, planners,\ncalendars, schedules, discs, data tapes, financial plans and information, business plans, and other documents and records, whether in hard copy,\nmagnetic media or otherwise, and any and all copies thereof, are the exclusive property of Company and shall be returned immediately to\nCompany upon termination of employment or upon Company's request at any time.\ne) Ownership of Confidential Information. Employee hereby grants to Company, and Company hereby accepts, the entire right, title, and\ninterest of Employee in and to any of the Confidential Information created or developed by Employee during the term of his employment\n(whether created or developed within or outside the course and scope of Employee's employment by Company), including, but not limited to,\nall patents, copyrights, trade secrets, and other proprietary rights in or based on the Confidential Information. If the Confidential Information or\nany portion thereof is copyrightable, it shall be deemed to be a "work made for hire," as such term is defined in the copyright laws of the\nUnited States. Employee shall cooperate with Company or its designees and execute assignments, oaths, declarations, and other documents\nprepared by Company, to effect the terms of this Section 5(e) or to perfect or enforce any proprietary rights resulting from or related to this\nAgreement. Within reason and in accordance with industry practice, such cooperation and execution shall be at no additional compensation to\nEmployee; provided, however, Company shall reimburse Employee for reasonable out-of-pocket expenses incurred at the specific request of\nCompany,\n6. Non-competition Obligations. During Employee's employment with Company, and for a period of twelve (12) months immediately\nfollowing termination (the "Non-competition Obligation") of such employment, Employee will not, directly or indirectly, at any place in the\nworld, engage or become interested (as owner, stockholder, partner, director, officer, member, creditor, consultant, or employee) in any\nbusiness in competition with the business conducted by Company at any time during Employee's employment with Company. Employee\nacknowledges that Company is doing business throughout the world, that Employee is reasonably expected to have contact with Company's\ncustomers throughout the world during the term of Employee's employment with Company, and that the worldwide geographic scope of this\ncovenant is reasonably necessary to protect Company's legitimate business interests.\n7. Customer Non-Solicitation. Employee will not, during the term of employment with Company and for a period of twelve (12) months\nimmediately following termination of employment, solicit, divert, take away from the\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n7\nCompany, or attempt to solicit, divert or take away, any of Company's customers with related business or the related business or patronage\nof\nany such customers, either for himself or on behalf of any other person, partnership, corporation or other entity. This restriction against\nsolicitation shall apply only to solicitations, which directly or indirectly compete with the business of the Company that Company is/was\nengaged in while Employee worked for Company.\n8. Co-Emplovee Non-Solicitation. Employee will not, during the term of employment with Company and for a period of twelve (12) months\nfollowing the termination of such employment for any reason, solicit, recruit and hire any other employee of Company, either for himself or on\nbehalf of any other person, partnership, corporation or other entity.\n9. Enforcement.\na) Reasonableness of Restrictions. Employee and Company acknowledges that compliance with this Agreement is reasonable and\nnecessary to protect both parties' legitimate business interests, including but not limited to both parties' goodwill.\nb) Irreparable Harm. Employee and Company acknowledges that a breach of either party's obligations under this Agreement will result\nin great, irreparable and continuing harm and damage to the other party for which there is no adequate remedy at law.\nc) Injunctive Relief. Employee agrees that in the event Employee breaches this Agreement, Company shall be entitled to seek, from any\ncourt of competent jurisdiction, preliminary and permanent injunctive relief to enforce the terms of this Agreement, in addition to any and all\nmonetary damages allowed by law, against Employee. Further, Company agrees that in the event Company breaches this Agreement,\nEmployee shall be entitled to seek, from any court of competent jurisdiction, preliminary and permanent injunctive relief to enforce the terms\nof this Agreement, in addition to any and all monetary damages allowed by law, against Company.\nd) Extension of Covenants. In the event Employee violates any one or more of the covenants contained in Sections 6 through 8 of this\nAgreement, Employee agrees that the running of the term of each covenant so violated shall be tolled during the period(s) of any such violation\nand the pendency of any litigation arising out of any such violation. Further, in the event Company violates any one or more of the covenants\ncontained in Sections 6 through 8 of this Agreement, Company agrees that the running of the term of each covenant so violated shall be tolled\nduring the period(s) of any such violation and the pendency of any litigation arising out of any such violation.\ne) Judicial Modification. The parties have attempted to limit the Employee's right to compete only to the extent necessary to protect\nCompany from unfair business practices and/or unfair competition. The parties recognize, however, that reasonable people may differ in\nmaking such a determination.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n8\nConsequently, the parties hereby agree that, if the scope or enforceability of the restrictive covenant is in any way disputed at any time, a court\nor other trier of fact may modify and enforce the covenant to the extent that it believes to be reasonable under the circumstances existing at that\ntime.\nf) Attorney Fees. In the event it becomes necessary for either party to this Agreement to institute a suit at law or in equity for the\npurposes of enforcing any of the provisions of this Agreement, the prevailing party shall be entitled to recover said party's reasonable\nattorney's fees, plus court costs and expenses, from the non-prevailing party.\ng)\nWithholding from Final Paycheck. If not prohibited by federal, state or local laws, Employee expressly authorizes Company to\nwithhold and deduct from Employee's final wages any amounts owed by Employee to Company at the time of the termination of employment,\nincluding but not limited to the value of unreturned or willfully damaged Company property. Employee further expressly agrees to repay to\nCompany any additional agreed-upon sums owed by Employee to Company (above that which can be withheld) immediately upon termination\nof Employee's employment\nh) Alternative Dispute Resolution. In the event a dispute between the parties arises under this Agreement, prior to filing an action of any\nkind each Party agrees to mediation of the dispute or disputes and shall participate in good faith. The mediation shall be conducted by a\nprofessional neutral mediator under the Mediation Rules of the American Arbitration Association but not necessarily in that forum.\n10. Indemnity. Employee warrants and represents that Employee has not knowingly and intentionally violated, is not knowingly and\nintentionally violating, and will not knowingly and intentionally violate any of the terms or conditions of any prior employment agreement,\nrestrictive covenant, or other similar agreement entered into by Employee while in the employment of any other company; that Employee has\nnot knowingly and intentionally given and will not knowingly and intentionally give to the Company at any time any customer list, trade\nsecret, or any other item of confidentia information, obtained or received while in the employment of any other company in violation of any\nemployment agreement, restrictive covenant or similar agreement entered into while in the employment of any other company; that, to the best\nof Employee's knowledge. Employee's employment with the Company as contemplated and provided for hereby is not materially restricted or\nmaterially limited in any way by any such employment agreement or restrictive covenant or by operation of any state, federal or local\nregulation, statute or other law of any kind, name or nature, including but not limited to trade secret laws and immigration laws; and that\nEmployee is in all respects duly qualified and eligible to work for the Company. In the event of a final legal adjudication (after exhausting any\nright of appeal) of Employee's material violation of one or more of the warranties or representations set forth above in this section, Employee\nagrees to indemnify the Company for all damages, costs and expenses, including reasonable attorney fees, which the Company may have to\npay in connection with a legal or administrative action against the Company or\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n9\nEmployee arising there from; provided, however, in the event any damages, costs and expenses are incurred by the Company for which\nEmployee is otherwise obligated to indemnify the Company are covered under any insurance policy or policies of the Company, then the\nCompany shall be obligated to exhaust all available insurance as a condition to the exercise of its right of indemnification hereunder (and the\nCompany waives all rights of subrogation in connection therewith) and Employee's indemnification obligation hereunder shall be reduced in\nproportion to the extent of such insurance. Company warrants and represents it has no knowledge as of the date hereof that Employee is or\nmay become in violation of any of the warranties and representations made by him above.\n11. Miscellaneous.\na) Survival. Employee understands that this Agreement shall be effective as of the date first written above and that the terms of this\nAgreement shall remain in full force and effect not only during the continuation of Employee's employment, but also after the termination of\nemployment for any reason by Company or Employee.\nb) Waiver. Failure of the Company or Employee to exercise or otherwise act with respect to any of its rights under this Agreement shall\nnot be construed as a waiver of any breach, nor prevent the Company or Employee from thereafter enforcing strict compliance with any and all\nterms of this Agreement.\nc) Severability. If any part of this Agreement shall be adjudicated to be invalid or unenforceable, as to duration, territory or otherwise,\nthen such part shall be deemed deleted from this Agreement or amended, as the case may be, in order to render the remainder of this\nAgreement valid and enforceable.\nd) Agreement Binding. This Agreement shall be binding upon and inure to the benefit of Company, Company's successors and assigns,\nEmployee and Employee's heirs, executors, administrators and legal representatives.\ne) Governing Law. This Agreement is made and entered into in the State of California, where Company has its principal place of\nbusiness, and concerns employment situated in said state. This Agreement shall be interpreted and construed in accordance with the laws of the\nState of California.\nf) Titles and Captions. All section and paragraph titles and captions contained in this Agreement are for convenience only and shall not\nbe deemed part of the context nor affect the construction or interpretation of this Agreement.\ng) Entire Agreement. This Agreement, which includes all Attachments incorporated herein and attached hereto, contains all the\nunderstandings and agreements between the parties concerning matters set forth in this Agreement. The terms of this Agreement supersede any\nand all prior statements, representations and agreements by or between Company and Employee, or either of them, concerning the matters set\nforth in this Agreement.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n10\nEmployee acknowledges that no person who is an agent or employee of Company may orally or by conduct modify, delete, vary, or contradict\nthe terms or conditions of this Agreement or this paragraph. This Agreement may be modified only by a written agreement signed by both\nparties.\nh) Separate Counsel. Company's attorneys have not represented Employee, and Employee has been advised that it is important for him\nto seek legal advice and representation in this matter.\nThe parties acknowledge and agree that they have read and understood the entire contents of this Agreement and Employee\nacknowledges that he has received a copy of this Agreement.\nCompany:\nGigOptix LLC,\na California limited liability company\n/s/ Paul Judge\nBy: Paul Judge\nIts: Compensation Committee Member, and Member of\nthe Management Board\nEmployee:\n/s/ Avi Katz\nAvi Katz\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n11\nATTACHMENT "A"\nMANAGEMENT BY OBJECTIVES (MBO'S)\nUpon execution of this Agreement, Employee and Company shall mutually establish and confirm through a Company Management Board\nResolution the following fair and reasonable goals (MBO's) which, when met, shall remove restrictions on certain Company Membership Units,\nrelated in Section 3(b) of this Employment, Confidentiality and Non-Competition Agreement:\n250,000 Restricted Membership Unit grants with 2007 MBO and grant restrictions to be mutually determined between the Management\nBoard and Employee.\n75,000 restricted Membership Unit grants with completion of fund raising, with Management Board approval, during 2007 & 2008,\nwhich does not include the 2007 approved Financial Plan or funds approved in association with the acquisition of Helix AG.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n12\nATTACHMENT "B"\nCEO & President Duties and Responsibilities\n1.\nEmployee shall report directly to Company's Management Board. Employee shall own all responsibilities for leading, planning, driving and\nexecuting all vision and business initiatives of the Company, working under the general directions and guidelines of the Board which will make\nassignments in terms of broadly defined missions.\n2. Employee shall provide leadership, experience and corporate governance required to transform the vision and product offerings of Company into a\ngrowing profitable business with the goal of maximizing' ROI.\n3. Employee's key responsibilities include:\na. The initial responsibility of Employee is to immediately commence an assessment of the viability of the Company and the likelihood of\nfuture growth under the current or other strategic plans, based on the quality and differentiation of its technology, and the preparation of a\nrecommendation to the Board to proceed toward fund raising and growth or other potential plans in the best interest of the Company's Members.\nb. If the Board determines the direction the Company shall take under the MBO's above, Employee shall develop a new business model\naccordingly, such as to execute the transition from a customer NRE-foCUS company to a company with a product portfolio focused on profitable\nreoccurring product revenue.\nC. In any decision scenario, Employee shall develop clear and precise business plans with appropriate strategies, objectives, initiatives, and\nindicator measurements. He shall maintain focus and guide the Company's employees to consistent execution of approved business plans, as\napproved by the Board, reporting to the Board both quarterly and annually.\nd. Employee shall be responsible for building a strong, professional and highly motivated Executive Team, including new executives, with\nBoard involvements and approval, all of whom are capable of contributing to the Company goal of sustained and profitable growth.\ne. Employee shall articulate and implement the Company's vision to create a business plan, goals, and objectives that will evolve with\ncontinued growth of profitability by balancing technical and business resources.\nf. Employee shall lead Company toward the achievement of aggressive sales growth targets for 2007, 2008 and beyond by rapidly penetrating\ntarget customer accounts and markets while establishing competitive barriers for entry, producing a product roadmap and driving new product and\ntechnology introductions to address expanding market opportunities using strong domestic and international industry relationships as leverage into\nsales, particularly with line card providers and system integrators, as well as with OEM partners.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n13\ng. Employee shall seek adequate funding sufficient to meet Company objectives: to grow the business, as per mutually agreed upon guidelines\nbetween the Employee and the Board. The employee will work with the current investors to lead a broad and successful fund raising process.\nh. Employee shall develop Business Plans with measurable initiatives and strategies that are aligned. These Business Plans will be\nprofessionally presented to the Board, and in some cases involve the Board prior to presentation, for formal Board approval. The Board for\nconsistent\nexecution of approved Business Plans, relative initiatives, and MBO's will hold Employee and his team accountable. Employee will\nbe\npro-active involving the Board when Business Plans appear not to be achieved and thus developing a new course of execution pro-actively and\nachieve Board approval of revised Business Plans.\ni. Employee shall build a company culture of excellence based on performance, integrity, accountability, customer service, teamwork, candor\nand respect for others (Live, Love, Learn, Leave a Legacy).\nj. Employee shall seek to expand Company's intellectual property portfolio, and secure all existing IP. He will also work with the investor's\nlegal department to secure existing IP under appropriate patents, and to survey the IP market for potential infringements on the company's IP, as well\nas potential infringements of the company on existing IP.\nk. Help to expand and strengthen the Board by recommending and recruiting, with the Board, new members including representatives of\nindustry and the relevant professions.\n1. Work with the Board to develop valuation strategies, which would achieve a value return to investors and shareholders.\nThis CEO & President Duties and Responsibilities are considered a "working document" that may change from time to time and in such event will\nbe documented and mutually agreed between Employee and Board.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n14\nGIGOPTIX LLC\nEQUITY INCENTIVE PLAN\nOPTION GRANT NOTICE\nGigOptix LLC, (the "Company") pursuant to its Equity Incentive Plan (the "Plan"), hereby grants to Optionholder an option to purchase the number\nof the Company's Units set forth below. This option is subject to all of the terms and conditions as set forth herein and in the Unit Option\nAgreement, the Plan, the Notice of Exercise and the Company's Operating Agreement (the "Operating Agreement"). The Unit Option Agreement,\nthe Plan, the Notice of Exercise and the Operating Agreement are attached hereto and incorporated herein their entirety.\nOptionholder:\nAvi Katz\nDate of Grant:\nAugust 1, 2007\nDate Option Rights are Terminated if Not Exercised*:\nAugust 1, 2017\nNumber of Units Subject to Option:\n1,000,000\nExercise Price (Per Unit):\n$0.10\nTotal Exercise Price:\nOne Hundred Thousand Dollars ($100,000)\nExercise Schedule:\nSame as Vesting Schedule\nVesting Schedule: Options vest at the rate of 1/4 the first year based on the anniversary of the Grant date and at a rate of one thirty-sixth (1/36) of the\nremaining units per month over the remaining three years.\nDate of Vesting\nNumber of Unit Options that can be Exercised\nAugust 1, 2008\n250,000\nFirst of each month thereafter through December 31, 2011\nContact your Plan Administrator for your current vested amount\nOption may terminate on earlier events, such as termination of Continuous Service, Optionholder's Disability or Death. See the Unit Option\nAgreement and the Plan for further details.\nPayment: By cash or check\nConfidentiality: The undersigned Optionholder acknowledges and agrees that the information contained in this Option Grant Notice shall remain\nconfidential and Optionholder shall not divulge or reveal, either directly or indirectly, the amount or extent of equity or options granted herein or any\nother material term to any other co-worker, employee or third party (other than a license professional advisor) without the express written consent of\nthe Company. Any breach of this confidentiality agreement may result in complete forfeiture of the option or equity.\nAdditional Terms/Acknowledgments Options shall not be exercised prior to January 1, 2008. The undersigned Optionholder acknowledges\nreceipt of, and understands and agrees to, this Option Grant Notice, the Unit Option Agreement, the Plan and the Operating Agreement.\nOptionholder further acknowledges that as of the Date of Grant, this Option Grant Notice, the Unit Option Agreement, the Plan and the Operating\nAgreement set forth the entire understanding between the Optionholder and the Company regarding the purchase of Units in the Company.\nOptionholder also agrees to execute all such further documentation as the Board of Managers may reasonably require.\nGIGOPTIX LLC:\nOPTIONHOLDER:\nBy: /s/ Paul F. Judge\nDate: 3/26/08\n/s/ Avi Katz\nDate: 3/26/08\nPaul F. Judge, Management Board Member\n(Name)\nATTACHMENTS: Unit Option Agreement, Plan, Notice of Exercise, Operating Agreement and Memorandum to Plan Participants.\nGIGOPTIX LLC\nEQUITY INCENTIVE PLAN\nOPTION GRANT NOTICE\nGigOptix LLC, (the "Company") pursuant to its Equity Incentive Plan (the "Plan"), hereby grants to Optionholder an option to purchase the number\nof the Company's Units set forth below. This option is subject to all of the terms and conditions as set forth herein and in the Unit Option\nAgreement, the Plan, the Notice of Exercise and the Company's Operating Agreement (the "Operating Agreement"). The Unit Option Agreement,\nthe Plan, the Notice of Exercise and the Operating Agreement are attached hereto and incorporated herein their entirety.\nOptionholder:\nAvi Katz\nDate of Grant:\nAugust 1, 2007\nDate Option Rights are Terminated if Not Exercised**:\nAugust 1, 2017\nNumber of Units Subject to Option:\n325,000\nExercise Price (Per Unit):\n$0.10\nTotal Exercise Price:\nThirty Two Thousand Five Hundred Dollars ($32,500)\nExercise Schedule:\nSame as Vesting Schedule except that no units can be exercised prior\nto January 1, 2008.\nExercise Term:\nIn the event the Optionholder's Continuous Service Terminates, the\nOptionholder may exercise his or her vested Options but only within\nsuch period of time ending on the earlier of (i) the date five years\nfollowing termination of the Optionholders Continuous Service, or\n(ii) the expiration of the term of the Option as set forth in this Option\nGrant.\nVesting Schedule: Options vesting is based on performance as governed by the GigOptix Management Board.\nDate of Vesting\nNumber of Unit Options that can be Exercised\nAugust 1, 2007\n250,000* **\nTBD (effective on completion date)\nAn additional 75,000 eligible for vesting, based on successfully completing a\nfunding event as governed by GigOptix Management Board.\nOption may terminate on earlier events, such as termination of Continuous Service, Optionholder's Disability or Death. See the Unit Option\nAgreement and the Plan for further details.\nMay only be exercised after January 1, 2008.\nPayment: By cash or check\nConfidentiality: The undersigned Optionholder acknowledges and agrees that the information contained in this Option Grant Notice shall remain\nconfidential and Optionholder shall not divulge or reveal, either directly or indirectly, the amount or extent of equity or options granted herein or any\nother material term to any other co-worker, employee or third party (other than a license professional advisor) without the express written consent of\nthe Company. Any breach of this confidentiality agreement may result in complete forfeiture of the option or equity.\nAdditional Terms/Acknowledgments: Options shall not be exercised prior to January 1, 2008. The undersigned Optionholder acknowledges\nreceipt of, and understands and agrees to, this Option Grant Notice, the Unit Option Agreement, the Plan and the Operating Agreement.\nOptionholder further acknowledges that as of the Date of Grant, this Option Grant Notice, the Unit Option Agreement, the Plan and the Operating\nAgreement set forth the entire understanding between the Optionholder and the Company regarding the purchase of Units in the Company.\nOptionholder also agrees to execute all such further documentation as the Board of Managers may reasonably require.\nGIGOPTIX LLC:\nOPTIONHOLDER:\nBy: /s/ Paul F. Judge\nDate: 3/26/08\n/s/ Avi Katz\nDate: 3/26/08\nPaul F. Judge, Management Board Member\n(Name)\nATTACHMENTS: Unit Option Agreement, Plan, Notice of Exercise, Operating Agreement and Memorandum to Plan Participants. EX-10.23 6 dex1023.htm EMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT - AVI\nKATZ\nExhibit 10.23\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION\nAGREEMENT\nThis Employment, Confidentiality and Non-competition Agreement (this “Agreement”) is made and entered into as of the 1st day of January\n2008, by and between GigOptix LLC, an Idaho limited liability company (herein referred to as “Company”), and Avi Katz (“Employee”).\nA. Effective April 9, 2007, the Company and Employee entered into an Employment, Confidentiality and Non-competition Agreement (“1\nst\nAgreement”) wherein the Employee provided management services to iTerra Communication LLC (“iTerra Communications”).\nB. Under the direction of Employee, iTerra Communications was reorganized and all of its assets were transferred to Company on July 1,\n2007.\nC. Employee and Company desire to terminate the 1st\nAgreement and establish this new Agreement to accommodate Employee’s transfer from\niTerra Communication to GigOptix on July 1, 2007 Furthermore, execution of this Agreement shall terminate the 1st Agreement effective April 9,\n2007 between Employee and Company.\nTherefore, in consideration of the mutual promises and covenants contained in this Agreement, the receipt and legal sufficiency of which\nconsideration are hereby acknowledged, the parties hereby agree as follows:\n1. Term.\na) Term. Company hereby employs Employee on a full time basis to serve as Chief Executive Officer (CEO) & President of the\nCompany effective Monday, July 1st, 2007, subject to the terms and conditions herein.\nb) Duties and Responsibilities. Employee shall report to the Company’s Chairman of the Board and Management Board. The Employee\nshall have each and all of the duties and responsibilities of the CEO & President position, as set forth in Attachment B, which is incorporated\nin its entirety herein, and such other duties on behalf of the Company as may be reasonably assigned, and mutually agreed by and with\nEmployee, from time to time by Company’s Management Board (it being acknowledged by the Company that Employee may terminate this\nAgreement for Good Reason in accordance with Section 4(c) herein in the event he does not so mutually agree).\n2. Employee Performance. Employee accepts employment with Company on the terms and conditions provided in this Agreement. Employee\nrecognizes Employee owes to Company duties of loyalty, fidelity and obedience in all matters pertaining to such employment. Employee shall\nserve Company diligently and faithfully, shall timely perform all duties to the best of Employee’s ability and in compliance with Company’s\nreasonable standards of performance, and shall devote Employee’s time and best efforts to the conduct of Company’s business. Company\nacknowledges that from time to time persons in the High-Tech\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n1\nindustry, in particular, but not limited to, the semiconductor, eCommerce, software and security, and in the real-estate industry, seek\nEmployee’s advice or consultation. Provided that Employee does not disclose Confidential Information to such persons or intentionally act\nagainst Employer’s interests, the Executive may provide such advice or consultation if it does not materially interfere with Executive’s duties\nhereunder.\nNotwithstanding the foregoing, the parties of this Agreement recognize and agree that the Employee may engage in passive personal\ninvestments and other business activities which do not conflict, directly or indirectly, with the business affairs of the Company or interfere with\nEmployee’s performance of Employee’s duties and responsibilities hereunder. In that regard, Employee may serve on the Board(s) of Directors\nor Management Board(s) of up to three (3) external companies of Employee’s choice, unless larger number is approved by the iTerra Board of\nManagement, so long as service on any of such Boards simultaneously with Employee’s service for the Company does not conflict or interfere\nwith performance of Employee’s duties and responsibilities hereunder.\n3. Compensation. In consideration for the services of Employee rendered to Company pursuant to the terms of this Agreement, and subject to\nthe full material performance of Employee’s obligations hereunder, Employee shall receive compensation and benefits as follows:\na) Base Salary. Employee shall be paid a base salary (“Base Salary”) at the annual rate of $300,000, payable in bi-weekly installments\nconsistent with Company’s payroll practices.\nb) Additional Incentive. Effective July 1st\n, 2007, Employee will receive two option grants, one to purchase three hundred and twenty five\nthousand (325,000) Membership Units of GigOptix, and a second to purchase One Million (1,000,000) Membership Units of GigOptix in\naccordance with the Company’s Equity incentive Plan. The exercise price of both grants is $0.10 per unit. Vesting on the options to purchase\n325,000 Membership Units will be based on performance objectives as established by the GigOptix Management Board for the 2007 period\nand Fund raising performance for the 2008 period. This option grant will also include an extension of the 90 days exercise period after\ntermination as defined by the plan to five (5) years in recognition of participation in the 2007 Management Board without compensation.\nVesting on the option to purchase 1,000,000 Membership Units will be pro-rated based on monthly continuous service over four (4) years and\nthe exercise period after termination will be the standard 90 days, unless Management Board will approve different period.\nc) Payment. Payment of all compensation to Employee hereunder shall be made in accordance with the relevant Company policies in\neffect from time to time, including normal payroll practices, and shall be subject to all applicable employment and withholding taxes.\nd) Business Expenses. Upon submission of itemized expense statements in the manner specified by the Company, Employee shall be\nentitled\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n2\nto direct payment and reimbursements for reasonable travel and other reasonable business expenses duly incurred by Employee in the\nperformance of his duties under this Agreement. Acceptable expenses will include, but are not limited to, charges for meals, Company\nemployee or customer entertainment, bridge tolls, lodging, air and ground transportation, cell phone, telephone, computer and broadband\ninternet services provided such are used for business purposes.\ne) Benefits Plans. Employee shall be eligible to participate in the Company’s benefit plans including, but not limited to, medical and\ndental plans, life and disability insurance plans and retirement plans, pursuant to their terms and conditions. Nothing in this Agreement shall\npreclude the Company from terminating or amending any existing employee benefit plan or program from time to time, provided, however, the\nCompany agrees to provide Employee during the term of this Agreement with health, medical, dental, and disability insurance, equivalent in\ncost and benefits to Employee, to that provided Employee as of the date of this Agreement. The Company further agrees it shall be responsible\nfor any additional incremental costs associated with providing such equivalent insurance benefits and will pay, or reimburse Employee for, all\nsuch incremental additional costs.\nf) Vacation. Employee shall be entitled to participate in the Company’s vacation plan and holiday plan, as long as the scheduling of\nEmployee’s vacation does not interfere with the Company’s normal business operations.\n4. Termination of Employment. Termination of employment will be subject to the following terms and conditions.\na) Termination For Cause. Notwithstanding anything herein to the contrary, the Company may terminate Employee’s employment\nhereunder “For Cause” for any one of the following reasons:\ni. The Employee’s willful harmful actions which do or are likely to result in material damage or embarrassment to Company, the\nCompany’s reputation, or the Company’s legitimate business interests;\nii. The Employee’s continued failure to follow the express direction and approved Resolutions of the Company Management\nBoard, following at least 60 days written notice.\niii. Commission of any act of fraud or falsification of any employment or Company records in any material way;\niv. The Employee’s abuse or illegal use of alcohol or other drugs or controlled substances;\nv. The Employee’s material breach of any of the terms or conditions of this Agreement, which breach is not cured within thirty\n(30) days following written notice from Company of such breach;\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n3\nvi. Employee’s conviction of or entry of a guilty plea or plea of no contest with respect to a felony, including theft, embezzlement\nor misappropriation of funds from the Company; or\nvii. Voluntary resignation of the Employee in the absence of Good Reason as defined in Section 4 (c) of this Agreement.\nUpon termination of Employee’s employment with Company For Cause, the Employee shall not be entitled to the Termination Benefits\nin Section 4(d) of this Agreement. Company shall have no further obligation under this Agreement other than payment of accrued but unpaid\nBase Salary, vacation and bonus. [For Cause and Termination Benefits are defined terms.]\nb) Termination Without Cause. The Company may terminate Employee’s employment hereunder at any time without cause, provided,\nhowever, that Employee shall be entitled to the Termination Benefits set forth in Section 4(d) of this Agreement.\nc) Termination for Good Reason. Employee may terminate his employment with the Company for Good Reason (as herein defined). If\nEmployee terminates his employment with the Company for Good Reason (as herein defined), he shall be entitled to the Termination Benefits\nset forth in Section 4(d). For purposes of this Agreement, “Good Reason” shall mean any of the following: (i) any material breach by the\nCompany of this Agreement, which breach is not cured within thirty (30) days following written notice from Employee of such breach; or\n(ii) any significant change in the Employee’s duties and responsibilities, without mutual agreement between Employee and Company.\nd) Termination Benefits. If the Employee is terminated at any time during his employment under the provisions of 4(b) or 4(c), upon\nmutual execution of valid and comprehensive release of any and all claims between them, including an agreement by Company to indemnify,\nhold harmless and defend Employee against any and all existing claims or claims, other than for his gross negligence, fraud, willful\nmisconduct, that may be filed by third parties, including government agencies, naming Employee as a defendant either as an individual or as\nthe President & CEO of the Company, the Employee shall receive “Termination Benefits” as follows:\n1. 500,000 Membership Unit Options of the 1,000,000 Option Grant identified in Section 3(b) herein from the date of termination of\nemployment shall immediately vest and be granted an exercise period of five (5) years. The 500,000 Membership Unit Options subject to\nthis Section 4(d) (1) shall not apply to any Membership Unit Options that have been forfeited in accordance with the Equity Incentive\nPlan and the respective Membership Unit Option Grant Notice and shall be first allocated from any vested Membership Unit Options\nissued under Section 3(c) of this Agreement, and shall then be allocated to any unvested Membership Unit Options issued under\nSection 3(c) of this Agreement;\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n4\n2. One hundred percent (100%) of the remaining 325,000 Membership Unit Option Grants, excluding any Option that have been\nforfeited in accordance with performance objectives, shall immediately vest and be granted an exercise period of five (5) years; and\n3. One time lump-sum payment, equivalent to twelve (12) months Base Salary pursuant to Section 3(a) herein, paid on the date of\ntermination of Employee. This Section 4(d)(3) shall terminate on January 1, 2013.\ne) Cooperation. After notice of termination, Employee shall cooperate with the Company, as reasonably requested by the Company, to\neffect a transition of Employee’s responsibilities and to ensure that the Company is aware of all matters being handled by the Employee.\nf) Disability of Employee. The Company may terminate this Agreement without liability, if Employee shall be permanently prevented\nfrom properly performing his essential duties hereunder with reasonable accommodation by reason of illness or other physical or mental\nincapacity for a period of more than one hundred twenty (120) consecutive days. Upon Employee hire date the Company will obtain a one (1)\nyear Disability insurance policy effective the determined date of disability as described below. Employee will have the opportunity to review\nand acknowledge the Company proposed insurance policy. Upon mutual agreement between Employee and the Company, the Company will\npurchase the mutually agreed one (1) year Disability policy. A medical doctor selected by written agreement of the Employer and the\nEmployee upon the request of either party by notice to the other will determine the disability of Employee. If the Employer and Employee\ncannot agree on the selection of a medical doctor, each of them will select a medical doctor and the two medical doctors will select a third\ndoctor who will determine whether the Employee has a disability. The determination of the medical doctor selected under this Section 4(f) will\nbe binding on both parties. The Employee must submit to a reasonable number of examinations by the medical doctor making the\ndetermination of disability under this Section 4(f), and Employee hereby authorizes the disclosures and release to the Employer of such\ndetermination and all supporting medical records. If the Employee is not legally competent, the Employee’s legal guardian or duly authorized\nattorney-in-fact will act in the Employee’s stead, under this Section 4(f), for the purposes of submitting the Employee to the examinations, and\nproviding the authorization of disclosure, required under this Section 4(f). Upon such termination, Employee shall be entitled to all accrued but\nunpaid Base Salary, accrued bonus (if any) and accrued vacation.\ng) Death of Employee. In the event of the death of Employee, the Company’s obligations hereunder shall be automatically cease and\nterminate; provided, however, that within 15 days the Company shall pay to Employee’s heirs or personal representatives Employee’s accrued\nbut unpaid Base Salary and accrued vacation accrued to the date of death.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n5\n5. Confidential Information.\na) Definition of Confidential Information. The Company has built up an established and extensive trade and reputation in its’ respective\nindustries. The Company has developed and continues to develop commercially valuable technical and non-technical information\n(“Confidential Information”) that is proprietary and confidential and constitutes the Company’s “trade secrets” within the meaning of the Idaho\nTrade Secrets Act, Idaho Code Sections 48-801 - 48-807. Such Confidential Information, which is vital to the success of the Company’s\nbusiness, includes, but is not necessarily limited to: programs, computer programs, system documentation, data compilations, manuals,\nmethods, techniques, processes, patented and/or unpatented technology, research, know-how, development, designs, devices, inventions, the\nidentities of Company’s customers, Company’s suppliers, contracts with suppliers and customers, sales proposals, pricing policies, cost\ninformation, financial information, business plans, specialized requests of Company’s customers, and other materials and documents\ndeveloped by Company. Confidential Information also includes special hardware, product hardware, related software and related\ndocumentation, either owned by Company or in Company’s possession under an agreement of nondisclosure. Through Employee’s\nemployment, Employee may become acquainted with or contribute to the Company’s Confidential Information through inventions,\ndiscoveries, improvements, software development, and/or in other ways. Confidential Information does not include customer names, programs,\nreports or other improvements to documentation, which were owned by Employee prior to being employed by Company. Further, Confidential\nInformation does not include information (i) that was in the public domain at the time of initial disclosure by or enters the public domain\nthereafter through no fault of Employee; (ii) that was already in the possession of Employee at the time of the initial disclosure and not subject\nto any other nondisclosure obligations; (iii) that is independently developed by Employee, outside the term of his employment with the\nCompany, without access to the subject Confidential Information; (iv) that is received by Employee from a third party with no confidential\nrestrictions; or (v) for which disclosure is compelled by a judicial or other governmental order, provided Employee provides Employer with\nprompt notice of such order before disclosure.\nb) Employee Access to Confidential Information. As President & CEO of Company, Employee will need broad access to Company’s\nConfidential Information. Employee agrees that to the extent reasonably possible he will limit access to said Confidential Information under\nhis control only to Company’s other employees whose job functions reasonably necessitate access to such Confidential Information and to\nthird parties only on a need to know basis.\nc) Nondisclosure of Confidential Information. Employee shall not, at any time, either during or subsequent to employment, directly or\nindirectly, appropriate, disclose or divulge any Confidential Information to any person not then employed by Company or any of DBSI’s\naffiliates, unless authorized or directed to do so by Company. Regarding all other third parties, Employee shall use good practices to ensure\nthat a signed confidentiality agreement for the\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n6\nbenefit of Company is or has been obtained from the third party to whom Confidential Information is being disclosed and that all Confidential\nInformation so disclosed is clearly marked “Confidential.”\nd) Return of Confidential and Other Information. All Confidential Information provided to Employee, and all documents and things\nprepared by Employee in the course of Employee’s employment by Company, including but not necessarily limited to correspondence,\ndrawings, blueprints, manuals, letters, notes, lists, notebooks, reports, flow-charts, computer programs, proposals, Day Timers, planners,\ncalendars, schedules, discs, data tapes, financial plans and information, business plans, and other documents and records, whether in hard copy,\nmagnetic media or otherwise, and any and all copies thereof, are the exclusive property of Company and shall be returned immediately to\nCompany upon termination of employment or upon Company’s request at any time.\ne) Ownership of Confidential Information. Employee hereby grants to Company, and Company hereby accepts, the entire right, title, and\ninterest of Employee in and to any of the Confidential Information created or developed by Employee during the term of his employment\n(whether created or developed within or outside the course and scope of Employee’s employment by Company), including, but not limited to,\nall patents, copyrights, trade secrets, and other proprietary rights in or based on the Confidential Information. If the Confidential Information or\nany portion thereof is copyrightable, it shall be deemed to be a “work made for hire,” as such term is defined in the copyright laws of the\nUnited States. Employee shall cooperate with Company or its designees and execute assignments, oaths, declarations, and other documents\nprepared by Company, to effect the terms of this Section 5(e) or to perfect or enforce any proprietary rights resulting from or related to this\nAgreement. Within reason and in accordance with industry practice, such cooperation and execution shall be at no additional compensation to\nEmployee; provided, however, Company shall reimburse Employee for reasonable out-of-pocket expenses incurred at the specific request of\nCompany,\n6. Non-competition Obligations. During Employee’s employment with Company, and for a period of twelve (12) months immediately\nfollowing termination (the “Non-competition Obligation”) of such employment, Employee will not, directly or indirectly, at any place in the\nworld, engage or become interested (as owner, stockholder, partner, director, officer, member, creditor, consultant, or employee) in any\nbusiness in competition with the business conducted by Company at any time during Employee’s employment with Company. Employee\nacknowledges that Company is doing business throughout the world, that Employee is reasonably expected to have contact with Company’s\ncustomers throughout the world during the term of Employee’s employment with Company, and that the worldwide geographic scope of this\ncovenant is reasonably necessary to protect Company’s legitimate business interests.\n7. Customer Non-Solicitation. Employee will not, during the term of employment with Company and for a period of twelve (12) months\nimmediately following termination of employment, solicit, divert, take away from the\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n7\nCompany, or attempt to solicit, divert or take away, any of Company’s customers with related business or the related business or patronage of\nany such customers, either for himself or on behalf of any other person, partnership, corporation or other entity. This restriction against\nsolicitation shall apply only to solicitations, which directly or indirectly compete with the business of the Company that Company is/was\nengaged in while Employee worked for Company.\n8. Co-Emplovee Non-Solicitation. Employee will not, during the term of employment with Company and for a period of twelve (12) months\nfollowing the termination of such employment for any reason, solicit, recruit and hire any other employee of Company, either for himself or on\nbehalf of any other person, partnership, corporation or other entity.\n9. Enforcement.\na) Reasonableness of Restrictions. Employee and Company acknowledges that compliance with this Agreement is reasonable and\nnecessary to protect both parties’ legitimate business interests, including but not limited to both parties’ goodwill.\nb) Irreparable Harm. Employee and Company acknowledges that a breach of either party’s obligations under this Agreement will result\nin great, irreparable and continuing harm and damage to the other party for which there is no adequate remedy at law.\nc) Injunctive Relief. Employee agrees that in the event Employee breaches this Agreement, Company shall be entitled to seek, from any\ncourt of competent jurisdiction, preliminary and permanent injunctive relief to enforce the terms of this Agreement, in addition to any and all\nmonetary damages allowed by law, against Employee. Further, Company agrees that in the event Company breaches this Agreement,\nEmployee shall be entitled to seek, from any court of competent jurisdiction, preliminary and permanent injunctive relief to enforce the terms\nof this Agreement, in addition to any and all monetary damages allowed by law, against Company.\nd) Extension of Covenants. In the event Employee violates any one or more of the covenants contained in Sections 6 through 8 of this\nAgreement, Employee agrees that the running of the term of each covenant so violated shall be tolled during the period(s) of any such violation\nand the pendency of any litigation arising out of any such violation. Further, in the event Company violates any one or more of the covenants\ncontained in Sections 6 through 8 of this Agreement, Company agrees that the running of the term of each covenant so violated shall be tolled\nduring the period(s) of any such violation and the pendency of any litigation arising out of any such violation.\ne) Judicial Modification. The parties have attempted to limit the Employee’s right to compete only to the extent necessary to protect\nCompany from unfair business practices and/or unfair competition. The parties recognize, however, that reasonable people may differ in\nmaking such a determination.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n8\nConsequently, the parties hereby agree that, if the scope or enforceability of the restrictive covenant is in any way disputed at any time, a court\nor other trier of fact may modify and enforce the covenant to the extent that it believes to be reasonable under the circumstances existing at that\ntime.\nf) Attorney Fees. In the event it becomes necessary for either party to this Agreement to institute a suit at law or in equity for the\npurposes of enforcing any of the provisions of this Agreement, the prevailing party shall be entitled to recover said party’s reasonable\nattorney’s fees, plus court costs and expenses, from the non-prevailing party.\ng) Withholding from Final Paycheck. If not prohibited by federal, state or local laws, Employee expressly authorizes Company to\nwithhold and deduct from Employee’s final wages any amounts owed by Employee to Company at the time of the termination of employment,\nincluding but not limited to the value of unreturned or willfully damaged Company property. Employee further expressly agrees to repay to\nCompany any additional agreed-upon sums owed by Employee to Company (above that which can be withheld) immediately upon termination\nof Employee’s employment.\nh) Alternative Dispute Resolution. In the event a dispute between the parties arises under this Agreement, prior to filing an action of any\nkind each Party agrees to mediation of the dispute or disputes and shall participate in good faith. The mediation shall be conducted by a\nprofessional neutral mediator under the Mediation Rules of the American Arbitration Association but not necessarily in that forum.\n10. Indemnity. Employee warrants and represents that Employee has not knowingly and intentionally violated, is not knowingly and\nintentionally violating, and will not knowingly and intentionally violate any of the terms or conditions of any prior employment agreement,\nrestrictive covenant, or other similar agreement entered into by Employee while in the employment of any other company; that Employee has\nnot knowingly and intentionally given and will not knowingly and intentionally give to the Company at any time any customer list, trade\nsecret, or any other item of confidential information, obtained or received while in the employment of any other company in violation of any\nemployment agreement, restrictive covenant or similar agreement entered into while in the employment of any other company; that, to the best\nof Employee’s knowledge. Employee’s employment with the Company as contemplated and provided for hereby is not materially restricted or\nmaterially limited in any way by any such employment agreement or restrictive covenant or by operation of any state, federal or local\nregulation, statute or other law of any kind, name or nature, including but not limited to trade secret laws and immigration laws; and that\nEmployee is in all respects duly qualified and eligible to work for the Company. In the event of a final legal adjudication (after exhausting any\nright of appeal) of Employee’s material violation of one or more of the warranties or representations set forth above in this section, Employee\nagrees to indemnify the Company for all damages, costs and expenses, including reasonable attorney fees, which the Company may have to\npay in connection with a legal or administrative action against the Company or\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n9\nEmployee arising there from; provided, however, in the event any damages, costs and expenses are incurred by the Company for which\nEmployee is otherwise obligated to indemnify the Company are covered under any insurance policy or policies of the Company, then the\nCompany shall be obligated to exhaust all available insurance as a condition to the exercise of its right of indemnification hereunder (and the\nCompany waives all rights of subrogation in connection therewith) and Employee’s indemnification obligation hereunder shall be reduced in\nproportion to the extent of such insurance. Company warrants and represents it has no knowledge as of the date hereof that Employee is or\nmay become in violation of any of the warranties and representations made by him above.\n11. Miscellaneous.\na) Survival. Employee understands that this Agreement shall be effective as of the date first written above and that the terms of this\nAgreement shall remain in full force and effect not only during the continuation of Employee’s employment, but also after the termination of\nemployment for any reason by Company or Employee.\nb) Waiver. Failure of the Company or Employee to exercise or otherwise act with respect to any of its rights under this Agreement shall\nnot be construed as a waiver of any breach, nor prevent the Company or Employee from thereafter enforcing strict compliance with any and all\nterms of this Agreement.\nc) Severability. If any part of this Agreement shall be adjudicated to be invalid or unenforceable, as to duration, territory or otherwise,\nthen such part shall be deemed deleted from this Agreement or amended, as the case may be, in order to render the remainder of this\nAgreement valid and enforceable.\nd) Agreement Binding. This Agreement shall be binding upon and inure to the benefit of Company, Company’s successors and assigns,\nEmployee and Employee’s heirs, executors, administrators and legal representatives.\ne) Governing Law. This Agreement is made and entered into in the State of California, where Company has its principal place of\nbusiness, and concerns employment situated in said state. This Agreement shall be interpreted and construed in accordance with the laws of the\nState of California.\nf) Titles and Captions. All section and paragraph titles and captions contained in this Agreement are for convenience only and shall not\nbe deemed part of the context nor affect the construction or interpretation of this Agreement.\ng) Entire Agreement. This Agreement, which includes all Attachments incorporated herein and attached hereto, contains all the\nunderstandings and agreements between the parties concerning matters set forth in this Agreement. The terms of this Agreement supersede any\nand all prior statements, representations and agreements by or between Company and Employee, or either of them, concerning the matters set\nforth in this Agreement.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n10\nEmployee acknowledges that no person who is an agent or employee of Company may orally or by conduct modify, delete, vary, or contradict\nthe terms or conditions of this Agreement or this paragraph. This Agreement may be modified only by a written agreement signed by both\nparties.\nh) Separate Counsel. Company’s attorneys have not represented Employee, and Employee has been advised that it is important for him\nto seek legal advice and representation in this matter.\nThe parties acknowledge and agree that they have read and understood the entire contents of this Agreement and Employee\nacknowledges that he has received a copy of this Agreement.\nCompany:\nGigOptix LLC,\na California limited liability company\n/s/ Paul Judge\nBy: Paul Judge\nIts: Compensation Committee Member, and Member of\nthe Management Board\nEmployee:\n/s/ Avi Katz\nAvi Katz\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n11\nATTACHMENT “A”\nMANAGEMENT BY OBJECTIVES (MBO’S)\nUpon execution of this Agreement, Employee and Company shall mutually establish and confirm through a Company Management Board\nResolution the following fair and reasonable goals (MBO’s) which, when met, shall remove restrictions on certain Company Membership Units,\nrelated in Section 3(b) of this Employment, Confidentiality and Non-Competition Agreement:\n•\n250,000 Restricted Membership Unit grants with 2007 MBO and grant restrictions to be mutually determined between the Management\nBoard and Employee.\n•\n75,000 restricted Membership Unit grants with completion of fund raising, with Management Board approval, during 2007 & 2008,\nwhich does not include the 2007 approved Financial Plan or funds approved in association with the acquisition of Helix AG.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n12\nATTACHMENT “B”\nCEO & President Duties and Responsibilities\n1. Employee shall report directly to Company’s Management Board. Employee shall own all responsibilities for leading, planning, driving and\nexecuting all vision and business initiatives of the Company, working under the general directions and guidelines of the Board which will make\nassignments in terms of broadly defined missions.\n2. Employee shall provide leadership, experience and corporate governance required to transform the vision and product offerings of Company into a\ngrowing profitable business with the goal of maximizing’ ROI.\n3. Employee’s key responsibilities include:\na. The initial responsibility of Employee is to immediately commence an assessment of the viability of the Company and the likelihood of\nfuture growth under the current or other strategic plans, based on the quality and differentiation of its technology, and the preparation of a\nrecommendation to the Board to proceed toward fund raising and growth or other potential plans in the best interest of the Company’s Members.\nb. If the Board determines the direction the Company shall take under the MBO’s above, Employee shall develop a new business model\naccordingly, such as to execute the transition from a customer NRE-focus company to a company with a product portfolio focused on profitable\nreoccurring product revenue.\nc. In any decision scenario, Employee shall develop clear and precise business plans with appropriate strategies, objectives, initiatives, and\nindicator measurements. He shall maintain focus and guide the Company’s employees to consistent execution of approved business plans, as\napproved by the Board, reporting to the Board both quarterly and annually.\nd. Employee shall be responsible for building a strong, professional and highly motivated Executive Team, including new executives, with\nBoard involvements and approval, all of whom are capable of contributing to the Company goal of sustained and profitable growth.\ne. Employee shall articulate and implement the Company’s vision to create a business plan, goals, and objectives that will evolve with\ncontinued growth of profitability by balancing technical and business resources.\nf. Employee shall lead Company toward the achievement of aggressive sales growth targets for 2007, 2008 and beyond by rapidly penetrating\ntarget customer accounts and markets while establishing competitive barriers for entry, producing a product roadmap and driving new product and\ntechnology introductions to address expanding market opportunities using strong domestic and international industry relationships as leverage into\nsales, particularly with line card providers and system integrators, as well as with OEM partners.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n13\ng. Employee shall seek adequate funding sufficient to meet Company objectives: to grow the business, as per mutually agreed upon guidelines\nbetween the Employee and the Board. The employee will work with the current investors to lead a broad and successful fund raising process.\nh. Employee shall develop Business Plans with measurable initiatives and strategies that are aligned. These Business Plans will be\nprofessionally presented to the Board, and in some cases involve the Board prior to presentation, for formal Board approval. The Board for\nconsistent execution of approved Business Plans, relative initiatives, and MBO’s will hold Employee and his team accountable. Employee will be\npro-active involving the Board when Business Plans appear not to be achieved and thus developing a new course of execution pro-actively and\nachieve Board approval of revised Business Plans.\ni. Employee shall build a company culture of excellence based on performance, integrity, accountability, customer service, teamwork, candor\nand respect for others (Live, Love, Learn, Leave a Legacy).\nj. Employee shall seek to expand Company’s intellectual property portfolio, and secure all existing IP. He will also work with the investor ’s\nlegal department to secure existing IP under appropriate patents, and to survey the IP market for potential infringements on the company’s IP, as well\nas potential infringements of the company on existing IP.\nk. Help to expand and strengthen the Board by recommending and recruiting, with the Board, new members including representatives of\nindustry and the relevant professions.\nl. Work with the Board to develop valuation strategies, which would achieve a value return to investors and shareholders.\nThis CEO & President Duties and Responsibilities are considered a “working document” that may change from time to time and in such event will\nbe documented and mutually agreed between Employee and Board.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n14\nGIGOPTIX LLC\nEQUITY INCENTIVE PLAN\nOPTION GRANT NOTICE\nGigOptix LLC, (the “Company”) pursuant to its Equity Incentive Plan (the “Plan”), hereby grants to Optionholder an option to purchase the number\nof the Company’s Units set forth below. This option is subject to all of the terms and conditions as set forth herein and in the Unit Option\nAgreement, the Plan, the Notice of Exercise and the Company’s Operating Agreement (the “Operating Agreement”). The Unit Option Agreement,\nthe Plan, the Notice of Exercise and the Operating Agreement are attached hereto and incorporated herein their entirety.\nOptionholder:\nAvi Katz\nDate of Grant:\nAugust 1, 2007\nDate Option Rights are Terminated if Not Exercised*:\nAugust 1, 2017\nNumber of Units Subject to Option:\n1,000,000\nExercise Price (Per Unit):\n$0.10\nTotal Exercise Price:\nOne Hundred Thousand Dollars ($100,000)\nExercise Schedule:\nSame as Vesting Schedule\nVesting Schedule: Options vest at the rate of 1/4 the first year based on the anniversary of the Grant date and at a rate of one thirty-sixth ( 1 /36) of the\nremaining units per month over the remaining three years.\nDate of Vesting\nNumber of Unit Options that can be Exercised\nAugust 1, 2008\n250,000\nFirst of each month thereafter through December 31, 2011\nContact your Plan Administrator for your current vested amount\n* Option may terminate on earlier events, such as termination of Continuous Service, Optionholder’s Disability or Death. See the Unit Option\nAgreement and the Plan for further details.\nPayment: By cash or check\nConfidentiality: The undersigned Optionholder acknowledges and agrees that the information contained in this Option Grant Notice shall remain\nconfidential and Optionholder shall not divulge or reveal, either directly or indirectly, the amount or extent of equity or options granted herein or any\nother material term to any other co-worker, employee or third party (other than a license professional advisor) without the express written consent of\nthe Company. Any breach of this confidentiality agreement may result in complete forfeiture of the option or equity.\nAdditional Terms/Acknowledgments: Options shall not be exercised prior to January 1, 2008. The undersigned Optionholder acknowledges\nreceipt of, and understands and agrees to, this Option Grant Notice, the Unit Option Agreement, the Plan and the Operating Agreement.\nOptionholder further acknowledges that as of the Date of Grant, this Option Grant Notice, the Unit Option Agreement, the Plan and the Operating\nAgreement set forth the entire understanding between the Optionholder and the Company regarding the purchase of Units in the Company.\nOptionholder also agrees to execute all such further documentation as the Board of Managers may reasonably require.\nGIGOPTIX LLC:\nOPTIONHOLDER:\nBy: /s/ Paul F. Judge\nDate: 3/26/08\n/s/ Avi Katz\nDate: 3/26/08\nPaul F. Judge, Management Board Member\n(Name)\nATTACHMENTS: Unit Option Agreement, Plan, Notice of Exercise, Operating Agreement and Memorandum to Plan Participants.\nGIGOPTIX LLC\nEQUITY INCENTIVE PLAN\nOPTION GRANT NOTICE\nGigOptix LLC, (the “Company”) pursuant to its Equity Incentive Plan (the “Plan”), hereby grants to Optionholder an option to purchase the number\nof the Company’s Units set forth below. This option is subject to all of the terms and conditions as set forth herein and in the Unit Option\nAgreement, the Plan, the Notice of Exercise and the Company’s Operating Agreement (the “Operating Agreement”). The Unit Option Agreement,\nthe Plan, the Notice of Exercise and the Operating Agreement are attached hereto and incorporated herein their entirety.\nOptionholder:\nAvi Katz\nDate of Grant:\nAugust 1, 2007\nDate Option Rights are Terminated if Not Exercised*:\nAugust 1, 2017\nNumber of Units Subject to Option:\n325,000\nExercise Price (Per Unit):\n$0.10\nTotal Exercise Price:\nThirty Two Thousand Five Hundred Dollars ($32,500)\nExercise Schedule:\nSame as Vesting Schedule except that no units can be exercised prior\nto January 1, 2008.\nExercise Term:\nIn the event the Optionholder’s Continuous Service Terminates, the\nOptionholder may exercise his or her vested Options but only within\nsuch period of time ending on the earlier of (i) the date five years\nfollowing termination of the Optionholders Continuous Service, or\n(ii) the expiration of the term of the Option as set forth in this Option\nGrant.\nVesting Schedule: Options vesting is based on performance as governed by the GigOptix Management Board.\nDate of Vesting\nNumber of Unit Options that can be Exercised\nAugust 1, 2007\n250,000**\nTBD (effective on completion date)\nAn additional 75,000 eligible for vesting, based on successfully completing a\nfunding event as governed by GigOptix Management Board.\n*\nOption may terminate on earlier events, such as termination of Continuous Service, Optionholder’s Disability or Death. See the Unit Option\nAgreement and the Plan for further details.\n**\nMay only be exercised after January 1, 2008.\nPayment: By cash or check\nConfidentiality: The undersigned Optionholder acknowledges and agrees that the information contained in this Option Grant Notice shall remain\nconfidential and Optionholder shall not divulge or reveal, either directly or indirectly, the amount or extent of equity or options granted herein or any\nother material term to any other co-worker, employee or third party (other than a license professional advisor) without the express written consent of\nthe Company. Any breach of this confidentiality agreement may result in complete forfeiture of the option or equity.\nAdditional Terms/Acknowledgments: Options shall not be exercised prior to January 1, 2008. The undersigned Optionholder acknowledges\nreceipt of, and understands and agrees to, this Option Grant Notice, the Unit Option Agreement, the Plan and the Operating Agreement.\nOptionholder further acknowledges that as of the Date of Grant, this Option Grant Notice, the Unit Option Agreement, the Plan and the Operating\nAgreement set forth the entire understanding between the Optionholder and the Company regarding the purchase of Units in the Company.\nOptionholder also agrees to execute all such further documentation as the Board of Managers may reasonably require.\nGIGOPTIX LLC:\nOPTIONHOLDER:\nBy: /s/ Paul F. Judge\nDate: 3/26/08\n/s/ Avi Katz\nDate: 3/26/08\nPaul F. Judge, Management Board Member\n(Name)\nATTACHMENTS: Unit Option Agreement, Plan, Notice of Exercise, Operating Agreement and Memorandum to Plan Participants. db004ff0a64417b9987241241b209c69.pdf effective_date jurisdiction party term Exhibit A\nNon-Disclosure Agreement\nOctober 2, 2017\nReference is made to the Settlement Agreement, dated October 2, 2017 (the “Settlement Agreement”), by and among the Potbelly\nCorporation (the “Company”), the Ancora Parties and Joseph Boehm, as representative of the Ancora Parties (the “Director”). Capitalized terms\nused but not defined herein shall have the meanings ascribed to them in the Settlement Agreement, and the rules of interpretation set forth in the\nSettlement Agreement shall apply to this Non-Disclosure Agreement mutatis mutandis.\nThe Director may be provided certain information and data in connection with his serving as a director of the Company that the Company\nwishes to keep confidential, including information (whether furnished in writing or electronic format or orally) regarding the Company’s\ngovernance, board of directors, management, plans, strategies, business, finances or operations and information that the Company has obtained\nfrom third parties and with respect to which the Company is obligated to maintain confidentiality (collectively, “Confidential Information”).\nExcept as provided in this Non-Disclosure Agreement, the Director will not disclose any Confidential Information in any manner whatsoever or\nuse any Confidential Information other than in connection with serving as a director of the Company without, in each instance, securing the prior\nwritten consent of the Company (acting through a resolution of a majority of the Company’s directors).\nExcept as set forth in this paragraph, this Non-Disclosure Agreement shall not prevent the Director from privately disclosing Confidential\nInformation to (i) officers, directors, accountants and counsel for the Company, (ii) the Director’s legal counsel or legal counsel to the Ancora\nParties (each a “Director Representative” and collectively, the “Director Representatives”) who needs to know such information for the sole\npurpose of advising the Director on his actions as a director of the Company or advising Ancora Advisors, LLC (“Ancora Advisors”) and the\nAncora Parties (or the Ancora Affiliates) on its (or their) investment(s) in the Company or (iii) Frederick DiSanto, James Chadwick and Brian\nHopkins, each an associate of Ancora Advisors (each an “Ancora Principal” and, collectively, the “Ancora Principals”). Notwithstanding the\nforegoing, it is understood and agreed that the Director will not disclose any information that the Director learns or obtains in his capacity as a\ndirector of the Company to any Director Representative or any Ancora Principal to the extent such disclosure would be reasonably likely to\nconstitute a waiver of the attorney-client privilege between the Company and its counsel or the Company’s attorney work product privilege. Any\nDirector Representative shall only be provided Confidential Information to the extent that such Director Representative is informed of the\nconfidential nature of the Confidential Information and agrees or is otherwise obligated to keep such information confidential and to restrict the\nuse of such confidential information in accordance with the terms of this Non-Disclosure Agreement. The Ancora Principals agree to keep\nconfidential the Confidential Information and to restrict the use of such Confidential Information in accordance with the terms of this\nNon-Disclosure Agreement, to be bound by this Non-Disclosure Agreement on the same terms as the Director by countersigning this\nA-1\nNon-Disclosure Agreement and not to use any Confidential Information in a manner that may be detrimental to the Company or its subsidiaries.\nThe Director, Ancora Advisors and the Ancora Parties shall be responsible for any breach of this Agreement by the Director, any Director\nRepresentatives, Ancora Advisors, the Ancora Parties or Ancora Principals.\nThe term “Confidential Information” shall not include information that (a) is at the time of disclosure or thereafter becomes generally\navailable to the public other than as a result of a disclosure by the Director, Ancora Advisors, the Ancora Parties, a Director Representative or an\nAncora Principal in violation of the terms of this Non-Disclosure Agreement; (b) was, prior to disclosure by the Company, already in the\npossession of the Director, a Director Representative, Ancora Advisors, the Ancora Parties or an Ancora Principal; provided that the source of\nsuch information was, to such person’s knowledge, not bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation of confidentiality to, the Company; (c) becomes available to the Director, a Director Representative, Ancora Advisors, the Ancora\nParties or an Ancora Principal on a non-confidential basis from a source other than the Company, an affiliate of the Company or an agent,\nrepresentative, attorney, advisor, director, officer or employee of the Company (collectively, the “Company Representatives”) that is, to such\nperson’s knowledge, not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the\nCompany, and is not, to such person’s knowledge, under an obligation to the Company not to transmit the information to such person; or (d) was\nindependently developed by the Director, a Director Representative, Ancora Advisors, the Ancora Parties or an Ancora Principal without\nreference to or use of the Confidential Information.\nThe Director is aware, and will advise any Director Representative or an Ancora Principal who is informed of the matters that are the\nsubject of this Non-Disclosure Agreement, that the Confidential Information may constitute material, non-public information and of the\nrestrictions imposed by the United States securities laws on the purchase or sale of securities by any person who is aware of material, non-public\ninformation and on the communication of such information to any other person who may purchase or sell such securities on the basis of such\ninformation. The Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal to whom the Director\ntransmits Confidential Information under this Non-Disclosure Agreement will comply with all applicable federal and state securities laws in\nconnection with the purchase or sale, directly or indirectly, of securities of the Company or any other entity of which the Director is provided\nmaterial non-public information in his capacity as a director of the Company for as long as the Director, Ancora Advisors, the Ancora Parties any\nDirector Representative or any Ancora Principal are in possession of material non-public information about the Company. The Director and the\nCompany acknowledge that none of the provisions hereto shall in any way limit Ancora Advisors’, the Ancora Parties’ or the Ancora Principals’\nactivities in the ordinary course of business if such activities will not violate applicable securities laws or the obligations set forth in this\nNon-Disclosure Agreement.\nEach of the Director, any Ancora Principal and any Director Representative to whom the Director transmits Confidential Information under\nthis Non-Disclosure Agreement acknowledges, or shall be deemed to acknowledge, that none of the Company, any affiliate of the Company or\nany Company Representative makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential\nInformation. None of the\nA-2\nCompany, any affiliate of the Company or any Company Representative shall have any liability to the Director, Ancora Advisors, the Ancora\nParties, any Director Representative or any Ancora Principal hereunder relating to or resulting from the use of the Confidential Information by\nthe Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal or any errors in or omissions from the\nConfidential Information.\nIn the event that the Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal is requested in any\nproceeding or governmental inquiry to disclose any Confidential Information, the Director will give the Company prompt written notice, to the\nextent not legally prohibited, of such request so that the Company may seek an appropriate protective order (at the Company’s sole expense) or\nwaive compliance with the applicable provisions of this Non-Disclosure Agreement. If the Company seeks a protective order, the Director,\nAncora Advisors, the Ancora Parties, and the Ancora Principals agree to, and shall cause any Director Representative to, provide such\ncooperation as the Company shall reasonably request and in no event will they oppose action by the Company to obtain a protective order or\nother relief to prevent the disclosure of Confidential Information or to obtain reliable assurance that confidential treatment will be afforded to the\nConfidential Information. If in the absence of a protective order, the Director, Ancora Advisors, the Ancora Parties, any Director Representative\nor any Ancora Principal, based upon the advice of counsel, is legally required to disclose Confidential Information, such person or entity may\ndisclose without liability under this Non-Disclosure Agreement such portion of the Confidential Information that counsel advises that the\nDirector, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal is legally required to disclose, so long as the\nrecipient of such Confidential Information is informed of this Non-Disclosure Agreement and the confidential nature of such Confidential\nInformation. For the avoidance of doubt, there shall be no legal requirement applicable to the Director, Ancora Advisors, the Ancora Parties, or\nthe Ancora Principals to disclose any Confidential Information solely by virtue of the fact that, absent such disclosure, such parties would be\nprohibited from purchasing, selling, or engaging in derivative or other transactions with respect to securities of the Company.\nThe parties agree that irreparable damage would occur in the event any of the provisions of this Non-Disclosure Agreement were not\nperformed in accordance with the terms hereof and that such damage would not be adequately compensable in monetary damages. Accordingly,\nthe parties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Non- Disclosure Agreement and to enforce\nspecifically the terms and provisions of this Non-Disclosure Agreement in the Court of Chancery or other federal or state courts of the State of\nDelaware (the “Delaware Courts”), in addition to any other remedies at law or in equity, and each party agrees it will not take any action, directly\nor indirectly, in opposition to the party seeking relief on the grounds that any other remedy or relief is available at law or in equity. Each of the\nparties hereto agrees to waive any bonding requirement under any applicable law, in the case any other party seeks to enforce the terms by way\nof equitable relief. In the event of litigation relating to this Non-Disclosure Agreement, if a court of competent jurisdiction determines that this\nNon-Disclosure Agreement has been breached, the breaching party will reimburse the non-breaching party for its reasonable and documented\nout-of-pocket costs and expenses (including legal fees and expenses) incurred in connection with all such litigation (including any appeal relating\nthereto). Furthermore, each of the parties hereto irrevocably (a)\nA-3\nconsents to submit itself to the personal jurisdiction of the Delaware Courts in the event any dispute arises out of this Non-Disclosure Agreement,\n(b) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from the Delaware Courts,\nagrees that it shall not bring any action relating to this Non-Disclosure Agreement in any court other than the Delaware Courts, (d) waives the\nright to trial by jury, and consents to service of process by the United States Postal Service or reputable overnight mail delivery service, in each\ncase, signature requested, to the address set forth in Section 14 of the Settlement Agreement or as otherwise provided by applicable law. THIS\nNON-DISCLOSURE AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING WITH RESPECT TO VALIDITY,\nINTERPRETATION, EFFECT AND ENFORCEMENT, BY THE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO\nTHE CHOICE OF LAW PRINCIPLES THEREOF THAT WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANY\nOTHER JURISDICTION.\nThis Non-Disclosure Agreement may not be amended except in writing signed by all the parties hereto. No failure or delay by either party\nin exercising any right hereunder or any partial exercise thereof shall operate as a waiver thereof or preclude any other or further exercise of any\nright hereunder.\nThe provisions of this Non-Disclosure Agreement relating to confidentiality shall terminate two (2) years after the Director (or any\nReplacement) ceases to be a director of the Company. The invalidity or unenforceability of any provision of this Non-Disclosure Agreement shall\nnot affect the validity or enforceability of any other provision hereof.\nAll Confidential Information shall remain the property of the Company and none of the Directors, Ancora Advisors, the Ancora Parties,\nany Director Representative or any Ancora Principal shall by virtue of any disclosure of or use of any Confidential Information acquire any\nrights with respect thereto, all of which rights (including all intellectual property rights) shall remain exclusively with the Company. At any time\nafter the date on which the Director (or any Replacement) is no longer a director of the Company, upon the request of the Company for any\nreason, the Director and the Ancora Principals will, and will cause Ancora Advisors, the Ancora Parties, and any Director Representative to,\npromptly return to the Company or destroy all hard copies of the Confidential Information and use reasonable efforts to permanently erase or\ndelete all electronic copies of the Confidential Information in the possession or control of the Director, Ancora Advisors, the Ancora Parties, any\nDirector Representative or any Ancora Principal. Notwithstanding anything to the contrary contained in this paragraph, the Director, the Ancora\nPrincipals, Ancora Advisors, the Ancora Parties and any Director Representative shall be permitted to retain such Confidential Information as is\nnecessary to enable them to comply with any applicable document retention requirements under applicable law or regulation and to retain any\ncomputer records and computer files containing any Confidential Information if required pursuant to their respective current automatic archiving\nand backup procedures; provided, however, that such retention shall be solely for legal, regulatory or archival purposes, as the case may be.\nUnless and until any Replacement executes a joinder to this Non-Disclosure Agreement and agrees to be bound by the terms hereof\napplicable to the Director, the Ancora Principals shall not be permitted to discuss Confidential Information with, or obtain Confidential\nInformation from, such substitute director.\nA-4\nAcceptance of the above terms shall be indicated by having this Non-Disclosure Agreement countersigned by the Director, the Ancora\nPrincipal, Ancora Advisors and the Ancora Parties.\nSincerely,\nIN WITNESS WHEREOF, the Parties hereto have each executed this Agreement on the date set forth below.\nDated: October 2, 2017\nPOTBELLY CORPORATION\nBy:\n/s/ Pete Bassi\nName: Pete Bassi\nTitle:\nChairman of the Board\nANCORA ADVISORS, LLC\nBy:\n/s/ Fred DiSanto\nName: Fred DiSanto\nTitle:\nChairman & CEO\n/s/ Frederick DiSanto\nFrederick DiSanto\n/s/ James Chadwick\nJames Chadwick\n/s/ Brian Hopkins\nBrian Hopkins\n/s/ Joseph Boehm\nJoseph Boehm\nA-5 Exhibit A\nNon-Disclosure Agreement\nOctober 2, 2017\nReference is made to the Settlement Agreement, dated October 2, 2017 (the “Settlement Agreement”), by and among the Potbelly\nCorporation (the “Company”), the Ancora Parties and Joseph Boehm, as representative of the Ancora Parties (the “Director”). Capitalized terms\nused but not defined herein shall have the meanings ascribed to them in the Settlement Agreement, and the rules of interpretation set forth in the\nSettlement Agreement shall apply to this Non-Disclosure Agreement mutatis mutandis.\nThe Director may be provided certain information and data in connection with his serving as a director of the Company that the Company\nwishes to keep confidential, including information (whether furnished in writing or electronic format or orally) regarding the Company’s\ngovernance, board of directors, management, plans, strategies, business, finances or operations and information that the Company has obtained\nfrom third parties and with respect to which the Company is obligated to maintain confidentiality (collectively, “Confidential Information™).\nExcept as provided in this Non-Disclosure Agreement, the Director will not disclose any Confidential Information in any manner whatsoever or\nuse any Confidential Information other than in connection with serving as a director of the Company without, in each instance, securing the prior\nwritten consent of the Company (acting through a resolution of a majority of the Company’s directors).\nExcept as set forth in this paragraph, this Non-Disclosure Agreement shall not prevent the Director from privately disclosing Confidential\nInformation to (i) officers, directors, accountants and counsel for the Company, (ii) the Director’s legal counsel or legal counsel to the Ancora\nParties (each a “Director Representative” and collectively, the “Director Representatives”) who needs to know such information for the sole\npurpose of advising the Director on his actions as a director of the Company or advising Ancora Advisors, LLC (“Ancora Advisors”) and the\nAncora Parties (or the Ancora Affiliates) on its (or their) investment(s) in the Company or (iii) Frederick DiSanto, James Chadwick and Brian\nHopkins, each an associate of Ancora Advisors (each an “Ancora Principal” and, collectively, the “Ancora Principals”). Notwithstanding the\nforegoing, it is understood and agreed that the Director will not disclose any information that the Director learns or obtains in his capacity as a\ndirector of the Company to any Director Representative or any Ancora Principal to the extent such disclosure would be reasonably likely to\nconstitute a waiver of the attorney-client privilege between the Company and its counsel or the Company’s attorney work product privilege. Any\nDirector Representative shall only be provided Confidential Information to the extent that such Director Representative is informed of the\nconfidential nature of the Confidential Information and agrees or is otherwise obligated to keep such information confidential and to restrict the\nuse of such confidential information in accordance with the terms of this Non-Disclosure Agreement. The Ancora Principals agree to keep\nconfidential the Confidential Information and to restrict the use of such Confidential Information in accordance with the terms of this\nNon-Disclosure Agreement, to be bound by this Non-Disclosure Agreement on the same terms as the Director by countersigning this\nA-1\nNon-Disclosure Agreement and not to use any Confidential Information in a manner that may be detrimental to the Company or its subsidiaries.\nThe Director, Ancora Advisors and the Ancora Parties shall be responsible for any breach of this Agreement by the Director, any Director\nRepresentatives, Ancora Advisors, the Ancora Parties or Ancora Principals.\nThe term “Confidential Information” shall not include information that (a) is at the time of disclosure or thereafter becomes generally\navailable to the public other than as a result of a disclosure by the Director, Ancora Advisors, the Ancora Parties, a Director Representative or an\nAncora Principal in violation of the terms of this Non-Disclosure Agreement; (b) was, prior to disclosure by the Company, already in the\npossession of the Director, a Director Representative, Ancora Advisors, the Ancora Parties or an Ancora Principal; provided that the source of\nsuch information was, to such person’s knowledge, not bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation of confidentiality to, the Company; (c) becomes available to the Director, a Director Representative, Ancora Advisors, the Ancora\nParties or an Ancora Principal on a non-confidential basis from a source other than the Company, an affiliate of the Company or an agent,\nrepresentative, attorney, advisor, director, officer or employee of the Company (collectively, the “Company Representatives™) that is, to such\nperson’s knowledge, not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the\nCompany, and is not, to such person’s knowledge, under an obligation to the Company not to transmit the information to such person; or (d) was\nindependently developed by the Director, a Director Representative, Ancora Advisors, the Ancora Parties or an Ancora Principal without\nreference to or use of the Confidential Information.\nThe Director is aware, and will advise any Director Representative or an Ancora Principal who is informed of the matters that are the\nsubject of this Non-Disclosure Agreement, that the Confidential Information may constitute material, non-public information and of the\nrestrictions imposed by the United States securities laws on the purchase or sale of securities by any person who is aware of material, non-public\ninformation and on the communication of such information to any other person who may purchase or sell such securities on the basis of such\ninformation. The Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal to whom the Director\ntransmits Confidential Information under this Non-Disclosure Agreement will comply with all applicable federal and state securities laws in\nconnection with the purchase or sale, directly or indirectly, of securities of the Company or any other entity of which the Director is provided\nmaterial non-public information in his capacity as a director of the Company for as long as the Director, Ancora Advisors, the Ancora Parties any\nDirector Representative or any Ancora Principal are in possession of material non-public information about the Company. The Director and the\nCompany acknowledge that none of the provisions hereto shall in any way limit Ancora Advisors’, the Ancora Parties’ or the Ancora Principals’\nactivities in the ordinary course of business if such activities will not violate applicable securities laws or the obligations set forth in this\nNon-Disclosure Agreement.\nEach of the Director, any Ancora Principal and any Director Representative to whom the Director transmits Confidential Information under\nthis Non-Disclosure Agreement acknowledges, or shall be deemed to acknowledge, that none of the Company, any affiliate of the Company or\nany Company Representative makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential\nInformation. None of the\nA-2\nCompany, any affiliate of the Company or any Company Representative shall have any liability to the Director, Ancora Advisors, the Ancora\nParties, any Director Representative or any Ancora Principal hereunder relating to or resulting from the use of the Confidential Information by\nthe Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal or any errors in or omissions from the\nConfidential Information.\nIn the event that the Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal is requested in any\nproceeding or governmental inquiry to disclose any Confidential Information, the Director will give the Company prompt written notice, to the\nextent not legally prohibited, of such request so that the Company may seek an appropriate protective order (at the Company’s sole expense) or\nwaive compliance with the applicable provisions of this Non-Disclosure Agreement. If the Company seeks a protective order, the Director,\nAncora Advisors, the Ancora Parties, and the Ancora Principals agree to, and shall cause any Director Representative to, provide such\ncooperation as the Company shall reasonably request and in no event will they oppose action by the Company to obtain a protective order or\nother relief to prevent the disclosure of Confidential Information or to obtain reliable assurance that confidential treatment will be afforded to the\nConfidential Information. If in the absence of a protective order, the Director, Ancora Advisors, the Ancora Parties, any Director Representative\nor any Ancora Principal, based upon the advice of counsel, is legally required to disclose Confidential Information, such person or entity may\ndisclose without liability under this Non-Disclosure Agreement such portion of the Confidential Information that counsel advises that the\nDirector, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal is legally required to disclose, so long as the\nrecipient of such Confidential Information is informed of this Non-Disclosure Agreement and the confidential nature of such Confidential\nInformation. For the avoidance of doubt, there shall be no legal requirement applicable to the Director, Ancora Advisors, the Ancora Parties, or\nthe Ancora Principals to disclose any Confidential Information solely by virtue of the fact that, absent such disclosure, such parties would be\nprohibited from purchasing, selling, or engaging in derivative or other transactions with respect to securities of the Company.\nThe parties agree that irreparable damage would occur in the event any of the provisions of this Non-Disclosure Agreement were not\nperformed in accordance with the terms hereof and that such damage would not be adequately compensable in monetary damages. Accordingly,\nthe parties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Non- Disclosure Agreement and to enforce\nspecifically the terms and provisions of this Non-Disclosure Agreement in the Court of Chancery or other federal or state courts of the State of\nDelaware (the “Delaware Courts”), in addition to any other remedies at law or in equity, and each party agrees it will not take any action, directly\nor indirectly, in opposition to the party seeking relief on the grounds that any other remedy or relief is available at law or in equity. Each of the\nparties hereto agrees to waive any bonding requirement under any applicable law, in the case any other party seeks to enforce the terms by way\nof equitable relief. In the event of litigation relating to this Non-Disclosure Agreement, if a court of competent jurisdiction determines that this\nNon-Disclosure Agreement has been breached, the breaching party will reimburse the non-breaching party for its reasonable and documented\nout-of-pocket costs and expenses (including legal fees and expenses) incurred in connection with all such litigation (including any appeal relating\nthereto). Furthermore, each of the parties hereto irrevocably (a)\nA-3\nconsents to submit itself to the personal jurisdiction of the Delaware Courts in the event any dispute arises out of this Non-Disclosure Agreement,\n(b) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from the Delaware Courts,\nagrees that it shall not bring any action relating to this Non-Disclosure Agreement in any court other than the Delaware Courts, (d) waives the\nright to trial by jury, and consents to service of process by the United States Postal Service or reputable overnight mail delivery service, in each\ncase, signature requested, to the address set forth in Section 14 of the Settlement Agreement or as otherwise provided by applicable law. THIS\nNON-DISCLOSURE AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING WITH RESPECT TO VALIDITY,\nINTERPRETATION, EFFECT AND ENFORCEMENT, BY THE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO\nTHE CHOICE OF LAW PRINCIPLES THEREOF THAT WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANY\nOTHER JURISDICTION.\nThis Non-Disclosure Agreement may not be amended except in writing signed by all the parties hereto. No failure or delay by either party\nin exercising any right hereunder or any partial exercise thereof shall operate as a waiver thereof or preclude any other or further exercise of any\nright hereunder.\nThe provisions of this Non-Disclosure Agreement relating to confidentiality shall terminate two (2) years after the Director (or any\nReplacement) ceases to be a director of the Company. The invalidity or unenforceability of any provision of this Non-Disclosure Agreement shall\nnot affect the validity or enforceability of any other provision hereof.\nAll Confidential Information shall remain the property of the Company and none of the Directors, Ancora Advisors, the Ancora Parties,\nany Director Representative or any Ancora Principal shall by virtue of any disclosure of or use of any Confidential Information acquire any\nrights with respect thereto, all of which rights (including all intellectual property rights) shall remain exclusively with the Company. At any time\nafter the date on which the Director (or any Replacement) is no longer a director of the Company, upon the request of the Company for any\nreason, the Director and the Ancora Principals will, and will cause Ancora Advisors, the Ancora Parties, and any Director Representative to,\npromptly return to the Company or destroy all hard copies of the Confidential Information and use reasonable efforts to permanently erase or\ndelete all electronic copies of the Confidential Information in the possession or control of the Director, Ancora Advisors, the Ancora Parties, any\nDirector Representative or any Ancora Principal. Notwithstanding anything to the contrary contained in this paragraph, the Director, the Ancora\nPrincipals, Ancora Advisors, the Ancora Parties and any Director Representative shall be permitted to retain such Confidential Information as is\nnecessary to enable them to comply with any applicable document retention requirements under applicable law or regulation and to retain any\ncomputer records and computer files containing any Confidential Information if required pursuant to their respective current automatic archiving\nand backup procedures; provided, however, that such retention shall be solely for legal, regulatory or archival purposes, as the case may be.\nUnless and until any Replacement executes a joinder to this Non-Disclosure Agreement and agrees to be bound by the terms hereof\napplicable to the Director, the Ancora Principals shall not be permitted to discuss Confidential Information with, or obtain Confidential\nInformation from, such substitute director.\nA-4\nAcceptance of the above terms shall be indicated by having this Non-Disclosure Agreement countersigned by the Director, the Ancora Principal, Ancora Advisors and the Ancora Parties. Sincerely,\nIN WITNESS WHEREOQF, the Parties hereto have each executed this Agreement on the date set forth below. Dated: October 2, 2017\nPOTBELLY CORPORATION\nBy: /s/ Pete Bassi\nName: Pete Bassi\nTitle: Chairman of the Board\nANCORA ADVISORS, LLC\nBy: /s/ Fred DiSanto\nName: Fred DiSanto\nTitle: Chairman & CEO\n/s/ Frederick DiSanto\nFrederick DiSanto\n/s/ James Chadwick\nJames Chadwick\n/s/ Brian Hopkins\nBrian Hopkins\n/s/ Joseph Boehm\nJoseph Boehm Exhibit A\nNon-Disclosure Agreement\nOctober 2, 2017\nReference is made to the Settlement Agreement, dated October 2, 2017 (the "Settlement Agreement"), by and among the Potbelly\nCorporation (the "Company"), the Ancora Parties and Joseph Boehm, as representative of the Ancora Parties (the "Director"). Capitalized terms\nused but not defined herein shall have the meanings ascribed to them in the Settlement Agreement, and the rules of interpretation set forth in the\nSettlement Agreement shall apply to this Non-Disclosure Agreement mutatis mutandis.\nThe Director may be provided certain information and data in connection with his serving as a director of the Company that the Company\nwishes to keep confidential, including information (whether furnished in writing or electronic format or orally) regarding the Company's\ngovernance, board of directors, management, plans, strategies, business, finances or operations and information that the Company has obtained\nfrom third parties and with respect to which the Company is obligated to maintain confidentiality (collectively, "Confidential Information").\nExcept as provided in this Non-Disclosure Agreement, the Director will not disclose any Confidential Information in any manner whatsoever or\nuse any Confidential Information other than in connection with serving as a director of the Company without, in each instance, securing\nthe\nprior\nwritten consent of the Company (acting through a resolution of a majority of the Company's directors).\nExcept as set forth in this paragraph, this Non-Disclosure Agreement shall not prevent the Director from privately disclosing Confidential\nInformation to (i) officers, directors, accountants and counsel for the Company, (ii) the Director's legal counsel or legal counsel to the Ancora\nParties (each a "Director Representative" and collectively, the "Director Representatives") who needs to know such information for the sole\npurpose of advising the Director on his actions as a director of the Company or advising Ancora Advisors, LLC ("Ancora Advisors") and\nthe\nAncora Parties (or the Ancora Affiliates) on its (or their) investment(s) in the Company or (iii) Frederick DiSanto, James Chadwick and Brian\nHopkins, each an associate of Ancora Advisors (each an "Ancora Principal" and, collectively, the "Ancora Principals"). Notwithstanding\nthe\nforegoing,\nit\nis\nunderstood\nand\nagreed\nthat\nthe\nDirector\nwill\nnot\ndisclose\nany\ninformation\nthat\nthe\nDirector\nlearns\nor\nobtains\nin\nhis\ncapacity\nas\na\ndirector of the Company to any Director Representative or any Ancora Principal to the extent such disclosure would be reasonably likely to\nconstitute a waiver of the attorney-client privilege between the Company and its counsel or the Company's attorney work product privilege. Any\nDirector Representative shall only be provided Confidential Information to the extent that such Director Representative is informed of the\nconfidential nature of the Confidential Information and agrees or is otherwise obligated to keep such information confidential and to restrict the\nuse of such confidential information in accordance with the terms of this Non-Disclosure Agreement. The Ancora Principals agree to keep\nconfidential the Confidential Information and to restrict the use of such Confidential Information in accordance with the terms of this\nNon-Disclosure Agreement, to be bound by this Non-Disclosure Agreement on the same terms as the Director by countersigning this\nA-1\nNon-Disclosure Agreement and not to use any Confidential Information in a manner that may be detrimental to the Company or its subsidiaries.\nThe Director, Ancora Advisors and the Ancora Parties shall be responsible for any breach of this Agreement by the Director, any Director\nRepresentatives, Ancora Advisors, the Ancora Parties or Ancora Principals.\nThe term "Confidential Information" shall not include information that (a) is at the time of disclosure or thereafter becomes generally\navailable to the public other than as a result of a disclosure by the Director, Ancora Advisors, the Ancora Parties, a Director Representative or\nan\nAncora Principal in violation of the terms of this Non-Disclosure Agreement; (b) was, prior to disclosure by the Company, already in the\npossession of the Director, a Director Representative, Ancora Advisors, the Ancora Parties or an Ancora Principal; provided that the source of\nsuch information was, to such person's knowledge, not bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation of confidentiality to, the Company; (c) becomes available to the Director, a Director Representative, Ancora Advisors, the Ancora\nParties or an Ancora Principal on a non-confidential basis from a source other than the Company, an affiliate of the Company or an agent,\nrepresentative, attorney, advisor, director, officer or employee of the Company (collectively, the "Company Representatives") that is, to such\nperson's knowledge, not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the\nCompany, and is not, to such person's knowledge, under an obligation to the Company not to transmit the information to such person; or (d)\nwas\nindependently developed by the Director, a Director Representative, Ancora Advisors, the Ancora Parties or an Ancora Principal without\nreference to or use of the Confidential Information.\nThe Director is aware, and will advise any Director Representative or an Ancora Principal who is informed of the matters that are the\nsubject of this Non-Disclosure Agreement, that the Confidential Information may constitute material, non-public information and of the\nrestrictions imposed by the United States securities laws on the purchase or sale of securities by any person who is aware of material, non-public\ninformation and on the communication of such information to any other person who may purchase or sell such securities on the basis of such\ninformation. The Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal to whom the Director\ntransmits Confidential Information under this Non-Disclosure Agreement will comply with all applicable federal and state securities laws in\nconnection with the purchase or sale, directly or indirectly, of securities of the Company or any other entity of which the Director is provided\nmaterial non-public information in his capacity as a director of the Company for as long as the Director, Ancora Advisors, the Ancora Parties\nany\nDirector Representative or any Ancora Principal are in possession of material non-public information about the Company.\nThe\nDirector\nand\nthe\nCompany acknowledge that none of the provisions hereto shall in any way limit Ancora Advisors', the Ancora Parties' or the Ancora Principals'\nactivities in the ordinary course of business if such activities will not violate applicable securities laws or the obligations set forth in this\nNon-Disclosure Agreement.\nEach of the Director, any Ancora Principal and any Director Representative to whom the Director transmits Confidential Information under\nthis Non-Disclosure Agreement acknowledges, or shall be deemed to acknowledge, that none of the Company, any affiliate of the Company or\nany Company Representative makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential\nInformation. None of the\nA-2\nCompany, any affiliate of the Company or any Company Representative shall have any liability to the Director, Ancora Advisors, the Ancora\nParties, any Director Representative or any Ancora Principal hereunder relating to or resulting from the use of the Confidential Information by\nthe Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal or any errors in or omissions from\nthe\nConfidential Information.\nIn the event that the Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal is requested in any\nproceeding or governmental inquiry to disclose any Confidential Information, the Director will give the Company prompt written notice, to the\nextent not legally prohibited, of such request so that the Company may seek an appropriate protective order (at the Company's sole expense) or\nwaive compliance with the applicable provisions of this Non-Disclosure Agreement. If the Company seeks a protective order, the Director,\nAncora Advisors, the Ancora Parties, and the Ancora Principals agree to, and shall cause any Director Representative to, provide such\ncooperation as the Company shall reasonably request and in no event will they oppose action by the Company to obtain a protective order\nor\nother relief to prevent the disclosure of Confidential Information or to obtain reliable assurance that confidential treatment will be afforded to\nthe\nConfidential Information. If in the absence of a protective order, the Director, Ancora Advisors, the Ancora Parties, any Director Representative\nor any Ancora Principal, based upon the advice of counsel, is legally required to disclose Confidential Information, such person or entity may\ndisclose without liability under this Non-Disclosure Agreement such portion of the Confidential Information that counsel advises that the\nDirector, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal is legally required to disclose, so long as\nthe\nrecipient of such Confidential Information is informed of this Non-Disclosure Agreement and the confidential nature of such Confidential\nInformation. For the avoidance of doubt, there shall be no legal requirement applicable to the Director, Ancora Advisors, the Ancora Parties,\nor\nthe Ancora Principals to disclose any Confidential Information solely by virtue of the fact that, absent such disclosure, such parties would\nbe\nprohibited from purchasing, selling, or engaging in derivative or other transactions with respect to securities of the Company.\nThe parties agree that irreparable damage would occur in the event any of the provisions of this Non-Disclosure Agreement were not\nperformed in accordance with the terms hereof and that such damage would not be adequately compensable in monetary damages. Accordingly,\nthe parties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Non- Disclosure Agreement and to enforce\nspecifically the terms and provisions of this Non-Disclosure Agreement in the Court of Chancery or other federal or state courts of the State of\nDelaware (the "Delaware Courts"), in addition to any other remedies at law or in equity, and each party agrees it will not take\nany\naction,\ndirectly\nor indirectly, in opposition to the party seeking relief on the grounds that any other remedy or relief is available at law or in equity. Each of\nthe\nparties hereto agrees to waive any bonding requirement under any applicable law, in the case any other party seeks to enforce the terms by way\nof equitable relief. In the event of litigation relating to this Non-Disclosure Agreement, if a court of competent jurisdiction determines that this\nNon-Disclosure Agreement has been breached, the breaching party will reimburse the non-breaching party for its reasonable and documented\nout-of-pocket costs and expenses (including legal fees and expenses) incurred in connection with all such litigation (including any appeal relating\nthereto). Furthermore, each of the parties hereto irrevocably (a)\nA-3\nconsents to submit itself to the personal jurisdiction of the Delaware Courts in the event any dispute arises out of this Non-Disclosure Agreement,\n(b) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from the Delaware Courts,\nagrees that it shall not bring any action relating to this Non-Disclosure Agreement in any court other than the Delaware Courts, (d) waives the\nright to trial by jury, and consents to service of process by the United States Postal Service or reputable overnight mail delivery service, in each\ncase, signature requested, to the address set forth in Section 14 of the Settlement Agreement or as otherwise provided by applicable law. THIS\nNON-DISCLOSURE AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING WITH RESPECT TO VALIDITY,\nINTERPRETATION, EFFECT AND ENFORCEMENT, BY THE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO\nTHE CHOICE OF LAW PRINCIPLES THEREOF THAT WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANY\nOTHER JURISDICTION.\nThis Non-Disclosure Agreement may not be amended except in writing signed by all the parties hereto. No failure or delay by either party\nin\nexercising any right hereunder or any partial exercise thereof shall operate as a waiver thereof or preclude any other or further exercise of any\nright hereunder.\nThe provisions of this Non-Disclosure Agreement relating to confidentiality shall terminate two (2) years after the Director (or any\nReplacement) ceases to be a director of the Company. The invalidity or unenforceability of any provision of this Non-Disclosure Agreement shall\nnot affect the validity or enforceability of any other provision hereof.\nAll Confidential Information shall remain the property of the Company and none of the Directors, Ancora Advisors, the Ancora Parties,\nany Director Representative or any Ancora Principal shall by virtue of any disclosure of or use of any Confidential Information acquire any\nrights with respect thereto, all of which rights (including all intellectual property rights) shall remain exclusively with the Company. At any time\nafter the date on which the Director (or any Replacement) is no longer a director of the Company, upon the request of the Company for\nany\nreason, the Director and the Ancora Principals will, and will cause Ancora Advisors, the Ancora Parties, and any Director Representative to,\npromptly return to the Company or destroy all hard copies of the Confidential Information and use reasonable efforts to permanently erase or\ndelete all electronic copies of the Confidential Information in the possession or control of the Director, Ancora Advisors, the Ancora Parties, any\nDirector\nRepresentative or any Ancora Principal. Notwithstanding anything to the contrary contained in this paragraph, the Director, the Ancora\nPrincipals, Ancora Advisors, the Ancora Parties and any Director Representative shall be permitted to retain such Confidential Information as\nis\nnecessary to enable them to comply with any applicable document retention requirements under applicable law or regulation and to retain any\ncomputer records and computer files containing any Confidential Information if required pursuant to their respective current automatic archiving\nand backup procedures; provided, however, that such retention shall be solely for legal, regulatory or archival purposes, as the case may be.\nUnless and until any Replacement executes a joinder to this Non-Disclosure Agreement and agrees to be bound by the terms hereof\napplicable to the Director, the Ancora Principals shall not be permitted to discuss Confidential Information with, or obtain Confidential\nInformation from, such substitute director.\nA-4\nAcceptance of the above terms shall be indicated by having this Non-Disclosure Agreement countersigned by the Director, the Ancora\nPrincipal, Ancora Advisors and the Ancora Parties.\nSincerely,\nIN WITNESS WHEREOF, the Parties hereto have each executed this Agreement on the date set forth below.\nDated: October 2, 2017\nPOTBELLY CORPORATION\nBy:\n/s/ Pete Bassi\nName: Pete Bassi\nTitle:\nChairman of the Board\nANCORA ADVISORS, LLC\nBy:\n/s/ Fred DiSanto\nName: Fred DiSanto\nTitle:\nChairman & CEO\n/s/ Frederick DiSanto\nFrederick DiSanto\n/s/ James Chadwick\nJames Chadwick\n/s/ Brian Hopkins\nBrian Hopkins\n/s/ Joseph Boehm\nJoseph Boehm\nA-5 Exhibit A\nNon-Disclosure Agreement\nOctober 2, 2017\nReference is made to the Settlement Agreement, dated October 2, 2017 (the “Settlement Agreement”), by and among the Potbelly\nCorporation (the “Company”), the Ancora Parties and Joseph Boehm, as representative of the Ancora Parties (the “Director”). Capitalized terms\nused but not defined herein shall have the meanings ascribed to them in the Settlement Agreement, and the rules of interpretation set forth in the\nSettlement Agreement shall apply to this Non-Disclosure Agreement mutatis mutandis.\nThe Director may be provided certain information and data in connection with his serving as a director of the Company that the Company\nwishes to keep confidential, including information (whether furnished in writing or electronic format or orally) regarding the Company’s\ngovernance, board of directors, management, plans, strategies, business, finances or operations and information that the Company has obtained\nfrom third parties and with respect to which the Company is obligated to maintain confidentiality (collectively, “Confidential Information”).\nExcept as provided in this Non-Disclosure Agreement, the Director will not disclose any Confidential Information in any manner whatsoever or\nuse any Confidential Information other than in connection with serving as a director of the Company without, in each instance, securing the prior\nwritten consent of the Company (acting through a resolution of a majority of the Company’s directors).\nExcept as set forth in this paragraph, this Non-Disclosure Agreement shall not prevent the Director from privately disclosing Confidential\nInformation to (i) officers, directors, accountants and counsel for the Company, (ii) the Director’s legal counsel or legal counsel to the Ancora\nParties (each a “Director Representative” and collectively, the “Director Representatives”) who needs to know such information for the sole\npurpose of advising the Director on his actions as a director of the Company or advising Ancora Advisors, LLC (“Ancora Advisors”) and the\nAncora Parties (or the Ancora Affiliates) on its (or their) investment(s) in the Company or (iii) Frederick DiSanto, James Chadwick and Brian\nHopkins, each an associate of Ancora Advisors (each an “Ancora Principal” and, collectively, the “Ancora Principals”). Notwithstanding the\nforegoing, it is understood and agreed that the Director will not disclose any information that the Director learns or obtains in his capacity as a\ndirector of the Company to any Director Representative or any Ancora Principal to the extent such disclosure would be reasonably likely to\nconstitute a waiver of the attorney-client privilege between the Company and its counsel or the Company’s attorney work product privilege. Any\nDirector Representative shall only be provided Confidential Information to the extent that such Director Representative is informed of the\nconfidential nature of the Confidential Information and agrees or is otherwise obligated to keep such information confidential and to restrict the\nuse of such confidential information in accordance with the terms of this Non-Disclosure Agreement. The Ancora Principals agree to keep\nconfidential the Confidential Information and to restrict the use of such Confidential Information in accordance with the terms of this\nNon-Disclosure Agreement, to be bound by this Non-Disclosure Agreement on the same terms as the Director by countersigning this\nA-1\nNon-Disclosure Agreement and not to use any Confidential Information in a manner that may be detrimental to the Company or its subsidiaries.\nThe Director, Ancora Advisors and the Ancora Parties shall be responsible for any breach of this Agreement by the Director, any Director\nRepresentatives, Ancora Advisors, the Ancora Parties or Ancora Principals.\nThe term “Confidential Information” shall not include information that (a) is at the time of disclosure or thereafter becomes generally\navailable to the public other than as a result of a disclosure by the Director, Ancora Advisors, the Ancora Parties, a Director Representative or an\nAncora Principal in violation of the terms of this Non-Disclosure Agreement; (b) was, prior to disclosure by the Company, already in the\npossession of the Director, a Director Representative, Ancora Advisors, the Ancora Parties or an Ancora Principal; provided that the source of\nsuch information was, to such person’s knowledge, not bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation of confidentiality to, the Company; (c) becomes available to the Director, a Director Representative, Ancora Advisors, the Ancora\nParties or an Ancora Principal on a non-confidential basis from a source other than the Company, an affiliate of the Company or an agent,\nrepresentative, attorney, advisor, director, officer or employee of the Company (collectively, the “Company Representatives”) that is, to such\nperson’s knowledge, not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the\nCompany, and is not, to such person’s knowledge, under an obligation to the Company not to transmit the information to such person; or (d) was\nindependently developed by the Director, a Director Representative, Ancora Advisors, the Ancora Parties or an Ancora Principal without\nreference to or use of the Confidential Information.\nThe Director is aware, and will advise any Director Representative or an Ancora Principal who is informed of the matters that are the\nsubject of this Non-Disclosure Agreement, that the Confidential Information may constitute material, non-public information and of the\nrestrictions imposed by the United States securities laws on the purchase or sale of securities by any person who is aware of material, non-public\ninformation and on the communication of such information to any other person who may purchase or sell such securities on the basis of such\ninformation. The Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal to whom the Director\ntransmits Confidential Information under this Non-Disclosure Agreement will comply with all applicable federal and state securities laws in\nconnection with the purchase or sale, directly or indirectly, of securities of the Company or any other entity of which the Director is provided\nmaterial non-public information in his capacity as a director of the Company for as long as the Director, Ancora Advisors, the Ancora Parties any\nDirector Representative or any Ancora Principal are in possession of material non-public information about the Company. The Director and the\nCompany acknowledge that none of the provisions hereto shall in any way limit Ancora Advisors’, the Ancora Parties’ or the Ancora Principals’\nactivities in the ordinary course of business if such activities will not violate applicable securities laws or the obligations set forth in this\nNon-Disclosure Agreement.\nEach of the Director, any Ancora Principal and any Director Representative to whom the Director transmits Confidential Information under\nthis Non-Disclosure Agreement acknowledges, or shall be deemed to acknowledge, that none of the Company, any affiliate of the Company or\nany Company Representative makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential\nInformation. None of the\nA-2\nCompany, any affiliate of the Company or any Company Representative shall have any liability to the Director, Ancora Advisors, the Ancora\nParties, any Director Representative or any Ancora Principal hereunder relating to or resulting from the use of the Confidential Information by\nthe Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal or any errors in or omissions from the\nConfidential Information.\nIn the event that the Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal is requested in any\nproceeding or governmental inquiry to disclose any Confidential Information, the Director will give the Company prompt written notice, to the\nextent not legally prohibited, of such request so that the Company may seek an appropriate protective order (at the Company’s sole expense) or\nwaive compliance with the applicable provisions of this Non-Disclosure Agreement. If the Company seeks a protective order, the Director,\nAncora Advisors, the Ancora Parties, and the Ancora Principals agree to, and shall cause any Director Representative to, provide such\ncooperation as the Company shall reasonably request and in no event will they oppose action by the Company to obtain a protective order or\nother relief to prevent the disclosure of Confidential Information or to obtain reliable assurance that confidential treatment will be afforded to the\nConfidential Information. If in the absence of a protective order, the Director, Ancora Advisors, the Ancora Parties, any Director Representative\nor any Ancora Principal, based upon the advice of counsel, is legally required to disclose Confidential Information, such person or entity may\ndisclose without liability under this Non-Disclosure Agreement such portion of the Confidential Information that counsel advises that the\nDirector, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal is legally required to disclose, so long as the\nrecipient of such Confidential Information is informed of this Non-Disclosure Agreement and the confidential nature of such Confidential\nInformation. For the avoidance of doubt, there shall be no legal requirement applicable to the Director, Ancora Advisors, the Ancora Parties, or\nthe Ancora Principals to disclose any Confidential Information solely by virtue of the fact that, absent such disclosure, such parties would be\nprohibited from purchasing, selling, or engaging in derivative or other transactions with respect to securities of the Company.\nThe parties agree that irreparable damage would occur in the event any of the provisions of this Non-Disclosure Agreement were not\nperformed in accordance with the terms hereof and that such damage would not be adequately compensable in monetary damages. Accordingly,\nthe parties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Non- Disclosure Agreement and to enforce\nspecifically the terms and provisions of this Non-Disclosure Agreement in the Court of Chancery or other federal or state courts of the State of\nDelaware (the “Delaware Courts”), in addition to any other remedies at law or in equity, and each party agrees it will not take any action, directly\nor indirectly, in opposition to the party seeking relief on the grounds that any other remedy or relief is available at law or in equity. Each of the\nparties hereto agrees to waive any bonding requirement under any applicable law, in the case any other party seeks to enforce the terms by way\nof equitable relief. In the event of litigation relating to this Non-Disclosure Agreement, if a court of competent jurisdiction determines that this\nNon-Disclosure Agreement has been breached, the breaching party will reimburse the non-breaching party for its reasonable and documented\nout-of-pocket costs and expenses (including legal fees and expenses) incurred in connection with all such litigation (including any appeal relating\nthereto). Furthermore, each of the parties hereto irrevocably (a)\nA-3\nconsents to submit itself to the personal jurisdiction of the Delaware Courts in the event any dispute arises out of this Non-Disclosure Agreement,\n(b) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from the Delaware Courts,\nagrees that it shall not bring any action relating to this Non-Disclosure Agreement in any court other than the Delaware Courts, (d) waives the\nright to trial by jury, and consents to service of process by the United States Postal Service or reputable overnight mail delivery service, in each\ncase, signature requested, to the address set forth in Section 14 of the Settlement Agreement or as otherwise provided by applicable law. THIS\nNON-DISCLOSURE AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING WITH RESPECT TO VALIDITY,\nINTERPRETATION, EFFECT AND ENFORCEMENT, BY THE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO\nTHE CHOICE OF LAW PRINCIPLES THEREOF THAT WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANY\nOTHER JURISDICTION.\nThis Non-Disclosure Agreement may not be amended except in writing signed by all the parties hereto. No failure or delay by either party\nin exercising any right hereunder or any partial exercise thereof shall operate as a waiver thereof or preclude any other or further exercise of any\nright hereunder.\nThe provisions of this Non-Disclosure Agreement relating to confidentiality shall terminate two (2) years after the Director (or any\nReplacement) ceases to be a director of the Company. The invalidity or unenforceability of any provision of this Non-Disclosure Agreement shall\nnot affect the validity or enforceability of any other provision hereof.\nAll Confidential Information shall remain the property of the Company and none of the Directors, Ancora Advisors, the Ancora Parties,\nany Director Representative or any Ancora Principal shall by virtue of any disclosure of or use of any Confidential Information acquire any\nrights with respect thereto, all of which rights (including all intellectual property rights) shall remain exclusively with the Company. At any time\nafter the date on which the Director (or any Replacement) is no longer a director of the Company, upon the request of the Company for any\nreason, the Director and the Ancora Principals will, and will cause Ancora Advisors, the Ancora Parties, and any Director Representative to,\npromptly return to the Company or destroy all hard copies of the Confidential Information and use reasonable efforts to permanently erase or\ndelete all electronic copies of the Confidential Information in the possession or control of the Director, Ancora Advisors, the Ancora Parties, any\nDirector Representative or any Ancora Principal. Notwithstanding anything to the contrary contained in this paragraph, the Director, the Ancora\nPrincipals, Ancora Advisors, the Ancora Parties and any Director Representative shall be permitted to retain such Confidential Information as is\nnecessary to enable them to comply with any applicable document retention requirements under applicable law or regulation and to retain any\ncomputer records and computer files containing any Confidential Information if required pursuant to their respective current automatic archiving\nand backup procedures; provided, however, that such retention shall be solely for legal, regulatory or archival purposes, as the case may be.\nUnless and until any Replacement executes a joinder to this Non-Disclosure Agreement and agrees to be bound by the terms hereof\napplicable to the Director, the Ancora Principals shall not be permitted to discuss Confidential Information with, or obtain Confidential\nInformation from, such substitute director.\nA-4\nAcceptance of the above terms shall be indicated by having this Non-Disclosure Agreement countersigned by the Director, the Ancora\nPrincipal, Ancora Advisors and the Ancora Parties.\nSincerely,\nIN WITNESS WHEREOF, the Parties hereto have each executed this Agreement on the date set forth below.\nDated: October 2, 2017\nPOTBELLY CORPORATION\nBy:\n/s/ Pete Bassi\nName: Pete Bassi\nTitle:\nChairman of the Board\nANCORA ADVISORS, LLC\nBy:\n/s/ Fred DiSanto\nName: Fred DiSanto\nTitle:\nChairman & CEO\n/s/ Frederick DiSanto\nFrederick DiSanto\n/s/ James Chadwick\nJames Chadwick\n/s/ Brian Hopkins\nBrian Hopkins\n/s/ Joseph Boehm\nJoseph Boehm\nA-5 ddbf109793cb86d7565126994e6d02cd.pdf effective_date jurisdiction party term By: ___________________________________\nName: _________________________________\nEXHIBIT 1\nNON-DISCLOSURE AGREEMENT\nI, __________________, am aware that Ideal Restaurant Group, Inc. (CLIENT) and my employer, The Schooner Group,\nLLC (COMPANY) have entered into a Support Services AGREEMENT (AGREEMENT) and I fully understand that it\nimposes certain obligations on COMPANY, some of which are specifically set forth below. I further understand that as\npart of its obligations under the AGREEMENT, COMPANY is required to obtain this written agreement from certain\nemployees, including myself, to further ensure understanding and compliance with these obligations.\nIn consideration for my future assignment and/or responsibilities in connection with COMPANY’s performance under\nthe AGREEMENT, I hereby acknowledge, represent and confirm to COMPANY and CLIENT as follows:\na) I have read the provisions of the Non-Disclosure Agreement, understand each of them, agree to them, and\nknow of no agreements restrictions or obligations that prevent me from complying with them;\nb) I will receive and maintain all information, perform all services and conduct myself, in all respects during the\nterm of the AGREEMENT and for the requisite period thereafter, in a manner consistent with these obligations;\nc) I agree not to directly or indirectly engage in, or assist others to engage in, any activity or conduct that violates\nthe provisions of this Non-Disclosure Agreement.\nConfidential Information: COMPANY agrees to regard and preserve as confidential all information related to the\nbusiness and activities of CLIENT, their patients, suppliers and other entities with whom CLIENT does business, that\nmay be obtained by COMPANY from any source or may be developed as a result of this AGREEMENT. COMPANY\nagrees to hold such information in trust and confidence for CLIENT and not to disclose such information to any person,\nfirm or enterprise, or use any such information for its own benefit or the benefit of any other party, unless authorized by\nCLIENT in writing.\nI understand that if I threaten to or actually breach or fail to observe any of the obligations set forth in this Non-\nDisclosure Agreement, CLIENT and COMPANY will be subject to irreparable harm, which will not be adequately\nsatisfied by damages. I therefore agree that COMPANY and CLIENT shall be entitled to injunctive relief and/or any\nother remedies permitted, to ensure and enforce my compliance with these obligations in the unlikely event I do not\ncomply with them; provided however, that no specification herein of any particular legal or equitable remedy shall be\nconstrued as a waiver, prohibition or limitation of any legal or equitable remedies.\nDate: ________________________\nTitle: ________________________\nWitness: ____________________________\n5 EXHIBIT 1\nNON-DISCLOSURE AGREEMENT\nL , am aware that Ideal Restaurant Group, Inc. (CLIENT) and my employer, The Schooner Group,\nLLC (COMPANY) have entered into a Support Services AGREEMENT (AGREEMENT) and I fully understand that it\nimposes certain obligations on COMPANY, some of which are specifically set forth below. I further understand that as\npart of its obligations under the AGREEMENT, COMPANY is required to obtain this written agreement from certain\nemployees, including myself, to further ensure understanding and compliance with these obligations.\nIn consideration for my future assignment and/or responsibilities in connection with COMPANY ’s performance under\nthe AGREEMENT, I hereby acknowledge, represent and confirm to COMPANY and CLIENT as follows:\na) I have read the provisions of the Non-Disclosure Agreement, understand each of them, agree to them, and\nknow of no agreements restrictions or obligations that prevent me from complying with them;\nb) I will receive and maintain all information, perform all services and conduct myself, in all respects during the\nterm of the AGREEMENT and for the requisite period thereafter, in a manner consistent with these obligations;\nc) I agree not to directly or indirectly engage in, or assist others to engage in, any activity or conduct that violates\nthe provisions of this Non-Disclosure Agreement.\nConfidential Information: COMPANY agrees to regard and preserve as confidential all information related to the\nbusiness and activities of CLIENT, their patients, suppliers and other entities with whom CLIENT does business, that\nmay be obtained by COMPANY from any source or may be developed as a result of this AGREEMENT. COMPANY\nagrees to hold such information in trust and confidence for CLIENT and not to disclose such information to any person,\nfirm or enterprise, or use any such information for its own benefit or the benefit of any other party, unless authorized by\nCLIENT in writing.\nI understand that if I threaten to or actually breach or fail to observe any of the obligations set forth in this Non-\nDisclosure Agreement, CLIENT and COMPANY will be subject to irreparable harm, which will not be adequately\nsatisfied by damages. I therefore agree that COMPANY and CLIENT shall be entitled to injunctive relief and/or any\nother remedies permitted, to ensure and enforce my compliance with these obligations in the unlikely event I do not\ncomply with them; provided however, that no specification herein of any particular legal or equitable remedy shall be\nconstrued as a waiver, prohibition or limitation of any legal or equitable remedies.\n \n \n \n \nBy: Date:\nName: Title:\nWitness:\n EXHIBIT 1\nNON-DISCLOSURE AGREEMENT\nI,\nam aware that Ideal Restaurant Group, Inc. (CLIENT) and my employer, The Schooner Group,\nLLC (COMPANY) have entered into a Support Services AGREEMENT (AGREEMENT) and I fully understand that it\nimposes certain obligations on COMPANY, some of which are specifically set forth below. I further understand that as\npart of its obligations under the AGREEMENT, COMPANY is required to obtain this written agreement from certain\nemployees, including myself, to further ensure understanding and compliance with these obligations.\nIn consideration for my future assignment and/or responsibilities in connection with COMPANY'S performance under\nthe AGREEMENT, I hereby acknowledge, represent and confirm to COMPANY and CLIENT as follows:\na) I have read the provisions of the Non-Disclosure Agreement, understand each of them, agree to them, and\nknow of no agreements restrictions or obligations that prevent me from complying with them;\nb) I will receive and maintain all information, perform all services and conduct myself, in all respects during the\nterm of the AGREEMENT and for the requisite period thereafter, in a manner consistent with these obligations;\nc) I agree not to directly or indirectly engage in, or assist others to engage in, any activity or conduct that violates\nthe provisions of this Non-Disclosure Agreement.\nConfidential Information: COMPANY agrees to regard and preserve as confidential all information related to the\nbusiness and activities of CLIENT, their patients, suppliers and other entities with whom CLIENT does business, that\nmay be obtained by COMPANY from any source or may be developed as a result of this AGREEMENT. COMPANY\nagrees to hold such information in trust and confidence for CLIENT and not to disclose such information to any person,\nfirm or enterprise, or use any such information for its own benefit or the benefit of any other party, unless authorized by\nCLIENT in writing.\nI understand that if I threaten to or actually breach or fail to observe any of the obligations set forth in this Non-\nDisclosure Agreement, CLIENT and COMPANY will be subject to irreparable harm, which will not be adequately\nsatisfied by damages. I therefore agree that COMPANY and CLIENT shall be entitled to injunctive relief and/or any\nother remedies permitted, to ensure and enforce my compliance with these obligations in the unlikely event I do not\ncomply with them; provided however, that no specification herein of any particular legal or equitable remedy shall be\nconstrued as a waiver, prohibition or limitation of any legal or equitable remedies.\nBy:\nDate:\nName:\nTitle:\nWitness:\n5 By: ___________________________________\nName: _________________________________\nEXHIBIT 1\nNON-DISCLOSURE AGREEMENT\nI, __________________, am aware that Ideal Restaurant Group, Inc. (CLIENT) and my employer, The Schooner Group,\nLLC (COMPANY) have entered into a Support Services AGREEMENT (AGREEMENT) and I fully understand that it\nimposes certain obligations on COMPANY, some of which are specifically set forth below. I further understand that as\npart of its obligations under the AGREEMENT, COMPANY is required to obtain this written agreement from certain\nemployees, including myself, to further ensure understanding and compliance with these obligations.\nIn consideration for my future assignment and/or responsibilities in connection with COMPANY’s performance under\nthe AGREEMENT, I hereby acknowledge, represent and confirm to COMPANY and CLIENT as follows:\na) I have read the provisions of the Non-Disclosure Agreement, understand each of them, agree to them, and\nknow of no agreements restrictions or obligations that prevent me from complying with them;\nb) I will receive and maintain all information, perform all services and conduct myself, in all respects during the\nterm of the AGREEMENT and for the requisite period thereafter, in a manner consistent with these obligations;\nc) I agree not to directly or indirectly engage in, or assist others to engage in, any activity or conduct that violates\nthe provisions of this Non-Disclosure Agreement.\nConfidential Information: COMPANY agrees to regard and preserve as confidential all information related to the\nbusiness and activities of CLIENT, their patients, suppliers and other entities with whom CLIENT does business, that\nmay be obtained by COMPANY from any source or may be developed as a result of this AGREEMENT. COMPANY\nagrees to hold such information in trust and confidence for CLIENT and not to disclose such information to any person,\nfirm or enterprise, or use any such information for its own benefit or the benefit of any other party, unless authorized by\nCLIENT in writing.\nI understand that if I threaten to or actually breach or fail to observe any of the obligations set forth in this Non-\nDisclosure Agreement, CLIENT and COMPANY will be subject to irreparable harm, which will not be adequately\nsatisfied by damages. I therefore agree that COMPANY and CLIENT shall be entitled to injunctive relief and/or any\nother remedies permitted, to ensure and enforce my compliance with these obligations in the unlikely event I do not\ncomply with them; provided however, that no specification herein of any particular legal or equitable remedy shall be\nconstrued as a waiver, prohibition or limitation of any legal or equitable remedies.\nDate: ________________________\nTitle: ________________________\nWitness: ____________________________\n5 dffd3c1faf94dbdc6b3853fbb07afdd8.pdf effective_date jurisdiction party term NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (“Agreement”) is entered into as of March 29, 2011, by and between the undersigned and Newgistics, Inc. (the\n“Company”), with reference to the following:\nRECITALS\nWHEREAS, I have been elected to serve on the Company’s Board of Directors (the “Board”); and\nWHEREAS, in my capacity as a member of the Board, I will receive the Company’s confidential and Proprietary Information (as defined\nbelow) and, subject to the Board’s discretion and approval, the Company will grant me a present right to purchase shares of the Company’s common\nstock, in each case as further provided in the offer letter by and between me and the Company (the “Board Offer Letter”); and\nWHEREAS, this Agreement is necessary to protect and prevent any unauthorized, improper or unlawful disclosure of the Company’s\nProprietary Information.\nAGREEMENT\nNOW THEREFORE, in exchange for the consideration provided to me in connection with my membership on the Board, including but not\nlimited to the Company’s promise to provide me with immediate access to its Proprietary Information and, subject to the Board of Directors’\ndiscretion and approval, the promise to grant me a present right to purchase shares of the Company’s common stock, and for other valuable\nconsideration, the receipt and sufficiency of which is hereby acknowledged, I agree as follows:\n1. Recognition of Company’s Rights; Nondisclosure.\nAt all times that I am a member of the Board (hereinafter referred to as my “Membership”) and for two years thereafter, I will hold in\nstrictest confidence and will not disclose, use, lecture upon, or publish any of the Company’s confidential or Proprietary Information (defined\nbelow), except as such disclosure, use, or publication may be required in connection with my Membership, or unless the President or the Board\nexpressly authorizes such in writing. I hereby assign to the Company any rights I may have or acquire in such confidential or Proprietary\nInformation and recognize that all confidential and Proprietary Information shall be the sole property of the Company and its assigns and that\nthe Company and its assigns shall be the sole owner of all patent rights, copyrights, trade secret rights, and all other rights throughout the\nworld (collectively, “Proprietary Rights”) in connection therewith. I further recognize that any suggestions, comments or contributions I make\nat any meeting of the Board or in connection with my duties during the term of my Membership is the Company’s confidential and Proprietary\nInformation.\nThe term “Proprietary Information” shall mean trade secrets, confidential knowledge, data, or any other proprietary information of the\nCompany and each of its subsidiaries or affiliated companies. By way of illustration but not limitation, “Proprietary Information” includes\n(a) inventions, trade secrets, ideas, processes, formulas, data, lists, programs, other works of authorship, know-how, improvements,\ndiscoveries, developments, designs, and techniques relating to the business or proposed business of the Company and that were learned or\ndiscovered by me during the term of my Membership with the Company; (b) information regarding plans for research, development, new\nproducts and services, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs,\nsuppliers, customer lists and customers that were learned or discovered by me during my Membership; and (c) information regarding the skills\nand compensation of employees of the Company. Proprietary Information shall not include information (i) already in my possession and not\nsubject to confidentiality requirements at the time of disclosure, (ii) obtained by me from another source without the duty of confidentiality, or\n(iii) readily available or generally known to the general public or to persons in the industry.\n2. Third Party Information.\nI understand, in addition, that the Company may from time to time receive from third parties confidential or proprietary information (“Third\nParty Information”) subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain limited\npurposes. During the term of my Membership and thereafter, I will hold Third Party Information in the strictest confidence and will not disclose (to\nanyone other than Company personnel who need to know such information in connection with their work for the Company) or use, except in\nconnection with my Membership, Third Party Information unless expressly authorized in writing by an executive officer of the Company or the\nBoard.\n3. No Improper Use of Materials.\nI understand and agree that, in connection with my Membership, I shall not use or disclose the proprietary or confidential information or\ntrade secrets of any employer, former employer, company for which I served on the Board of Directors, company for which I served on the\nadvisory board, or any other person or entity. During my Membership, I will not bring onto the premises of the Company any unpublished\ndocuments or any property belonging to any employer, former employer or any other person or entity to whom I have an obligation of\nconfidentiality unless consented to in writing by that employer, former employer, person, or entity.\n4. No Conflicting Obligation.\nI represent that my performance of all the duties in connection with my Membership does not and will not breach any agreement between\nme and any other company, person or entity. I have not entered into, and I agree I will not enter into, any agreement either written or oral in\nconflict herewith.\n5. Legal and Equitable Remedies.\nBecause my services are personal and unique and because I may have access to and become acquainted with the confidential and\nProprietary Information of the Company, the Company shall have the right to enforce this Agreement and any of its provisions by injunction,\nspecific performance, or other equitable relief, without bond and without prejudice to any other rights and remedies that the Company may\nhave for a breach of this Agreement.\n6. Notices.\nAny notices required or permitted hereunder shall be given to the appropriate party at the party’s last known address. Such notice shall be\ndeemed given upon personal delivery to the last known address or if sent by certified or registered mail, three days after the date of mailing.\n7. General Provisions.\n7.1 Governing Law. This Agreement will be governed by and construed according to the laws of the State of Texas without regard to\nconflicts of law principles.\n7.2 Exclusive Forum. I hereby irrevocably agree that the exclusive forum for any suit, action, or other proceeding arising out of or in any\nway related to this Agreement shall be in the state or federal courts in Texas, and I agree to the exclusive personal jurisdiction and venue of\nany court in Travis County, Texas.\n7.3 Entire Agreement. This Agreement, together with the terms of the Board Offer Letter, set forth the entire agreement and\nunderstanding between the Company and myself relating to the subject matter hereof and supersedes and merges all prior discussions between\nus. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing\nsigned by the party to be charged. Any subsequent change or changes in my duties, or compensation will not affect the validity or scope of this\nAgreement. As used in this Agreement, the period of my Membership includes any time during which I may be retained by the Company as a\nconsultant.\n7.4 Severability. I acknowledge and agree that each agreement and covenant set forth herein constitutes a separate agreement\nindependently supported by good and adequate consideration and that each such agreement shall be severable from the other provisions of this\nAgreement and shall survive this Agreement.\n7.5 Survival. The provisions of this Agreement shall survive the termination of my Membership for any reason and the assignment of this\nAgreement by the Company to any successor in interest or other assignee.\n7.6 Waiver. No waiver by the Company of any breach of this Agreement shall be a waiver of any preceding or succeeding breach. No\nwaiver by the Company of any right under this Agreement shall be construed as a waiver of any other right. The Company shall not be\nrequired to give notice to enforce strict adherence to all terms of this Agreement.\n7.7 Headings. The headings to each section or paragraph of this Agreement are provided for convenience of reference only and shall\nhave no legal effect in the interpretation of the terms hereof.\n7.8 Attorney’s Fees. In the event of litigation between me and the Company, the non-prevailing party (as determined at the time the court\nrenders final non-appealable judgment on the litigation as a whole) shall pay to the prevailing party, in addition to any other amounts awarded,\nall reasonable legal and other related costs and expenses, including for example but not limited to attorneys’ fees, expert witness fees, court\ncosts, costs of appeal, and all other reasonable out-of-pocket expenses incurred by the prevailing party in connection with such litigation.\n[Signature Page Follows]\nThis Agreement shall be effective as of the first day of my Membership on the Company’s Board of Directors.\nI UNDERSTAND THAT THIS AGREEMENT RESTRICTS MY RIGHT TO DISCLOSE OR USE THE COMPANY’S CONFIDENTIAL\nAND PROPRIETARY INFORMATION DURING OR SUBSEQUENT TO MY POSITION ON THE NEWGISTICS, INC. BOARD OF\nDIRECTORS.\n/s/ Stephen M. Mattessich\nStephen M. Mattessich\nACCEPTED AND AGREED TO:\nNEWGISTICS, INC.\nBy: /s/ William J. Razzouk\nWilliam J. Razzouk\nPresident and Chief Executive Officer NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (“Agreement”) is entered into as of March 29, 2011, by and between the undersigned and Newgistics, Inc. (the\n“Company”), with reference to the following:\nRECITALS\nWHEREAS, I have been elected to serve on the Company’s Board of Directors (the “Board”); and\nWHEREAS, in my capacity as a member of the Board, I will receive the Company’s confidential and Proprietary Information (as defined\nbelow) and, subject to the Board’s discretion and approval, the Company will grant me a present right to purchase shares of the Company’s common\nstock, in each case as further provided in the offer letter by and between me and the Company (the “Board Offer Letter”); and\nWHEREAS, this Agreement is necessary to protect and prevent any unauthorized, improper or unlawful disclosure of the Company’s\nProprietary Information.\nAGREEMENT\nNOW THEREFORE, in exchange for the consideration provided to me in connection with my membership on the Board, including but not\nlimited to the Company’s promise to provide me with immediate access to its Proprietary Information and, subject to the Board of Directors’\ndiscretion and approval, the promise to grant me a present right to purchase shares of the Company’s common stock, and for other valuable\nconsideration, the receipt and sufficiency of which is hereby acknowledged, I agree as follows:\n1. Recognition of Company’s Rights; Nondisclosure.\nAt all times that I am a member of the Board (hereinafter referred to as my “Membership”) and for two years thereafter, I will hold in\nstrictest confidence and will not disclose, use, lecture upon, or publish any of the Company’s confidential or Proprietary Information (defined\nbelow), except as such disclosure, use, or publication may be required in connection with my Membership, or unless the President or the Board\nexpressly authorizes such in writing. I hereby assign to the Company any rights I may have or acquire in such confidential or Proprietary\nInformation and recognize that all confidential and Proprietary Information shall be the sole property of the Company and its assigns and that\nthe Company and its assigns shall be the sole owner of all patent rights, copyrights, trade secret rights, and all other rights throughout the\nworld (collectively, “Proprietary Rights”) in connection therewith. I further recognize that any suggestions, comments or contributions I make\nat any meeting of the Board or in connection with my duties during the term of my Membership is the Company’s confidential and Proprietary\nInformation.\nThe term “Proprietary Information” shall mean trade secrets, confidential knowledge, data, or any other proprietary information of the\nCompany and each of its subsidiaries or affiliated companies. By way of illustration but not limitation, “Proprietary Information” includes\n(a) inventions, trade secrets, ideas, processes, formulas, data, lists, programs, other works of authorship, know-how, improvements,\ndiscoveries, developments, designs, and techniques relating to the business or proposed business of the Company and that were learned or\ndiscovered by me during the term of my Membership with the Company; (b) information regarding plans for research, development, new\nproducts and services, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs,\nsuppliers, customer lists and customers that were learned or discovered by me during my Membership; and (c) information regarding the skills\nand compensation of employees of the Company. Proprietary Information shall not include information (i) already in my possession and not\nsubject to confidentiality requirements at the time of disclosure, (ii) obtained by me from another source without the duty of confidentiality, or\n(iii) readily available or generally known to the general public or to persons in the industry.\n2. Third Party Information.\nI understand, in addition, that the Company may from time to time receive from third parties confidential or proprietary information (“Third\nParty Information”) subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain limited\npurposes. During the term of my Membership and thereafter, I will hold Third Party Information in the strictest confidence and will not disclose (to\nanyone other than Company personnel who need to know such information in connection with their work for the Company) or use, except in\nconnection with my Membership, Third Party Information unless expressly authorized in writing by an executive officer of the Company or the\nBoard.\n3. No Improper Use of Materials.\nI understand and agree that, in connection with my Membership, I shall not use or disclose the proprietary or confidential information or\ntrade secrets of any employer, former employer, company for which I served on the Board of Directors, company for which I served on the\nadvisory board, or any other person or entity. During my Membership, I will not bring onto the premises of the Company any unpublished\ndocuments or any property belonging to any employer, former employer or any other person or entity to whom I have an obligation of\nconfidentiality unless consented to in writing by that employer, former employer, person, or entity.\n4. No Conflicting Obligation.\nI represent that my performance of all the duties in connection with my Membership does not and will not breach any agreement between\nme and any other company, person or entity. I have not entered into, and I agree I will not enter into, any agreement either written or oral in\nconflict herewith.\n5. Legal and Equitable Remedies.\nBecause my services are personal and unique and because I may have access to and become acquainted with the confidential and\nProprietary Information of the Company, the Company shall have the right to enforce this Agreement and any of its provisions by injunction,\nspecific performance, or other equitable relief, without bond and without prejudice to any other rights and remedies that the Company may\nhave for a breach of this Agreement.\n6. Notices.\nAny notices required or permitted hereunder shall be given to the appropriate party at the party’s last known address. Such notice shall be\ndeemed given upon personal delivery to the last known address or if sent by certified or registered mail, three days after the date of mailing.\n7. General Provisions.\n7.1 Governing Law. This Agreement will be governed by and construed according to the laws of the State of Texas without regard to\nconflicts of law principles.\n7.2 Exclusive Forum. I hereby irrevocably agree that the exclusive forum for any suit, action, or other proceeding arising out of or in any\nway related to this Agreement shall be in the state or federal courts in Texas, and I agree to the exclusive personal jurisdiction and venue of\nany court in Travis County, Texas.\n7.3 Entire Agreement. This Agreement, together with the terms of the Board Offer Letter, set forth the entire agreement and\nunderstanding between the Company and myself relating to the subject matter hereof and supersedes and merges all prior discussions between\nus. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing\nsigned by the party to be charged. Any subsequent change or changes in my duties, or compensation will not affect the validity or scope of this\nAgreement. As used in this Agreement, the period of my Membership includes any time during which I may be retained by the Company as a\nconsultant.\n \n7.4 Severability. I acknowledge and agree that each agreement and covenant set forth herein constitutes a separate agreement\nindependently supported by good and adequate consideration and that each such agreement shall be severable from the other provisions of this\nAgreement and shall survive this Agreement.\n7.5 Survival. The provisions of this Agreement shall survive the termination of my Membership for any reason and the assignment of this\nAgreement by the Company to any successor in interest or other assignee.\n7.6 Waiver. No waiver by the Company of any breach of this Agreement shall be a waiver of any preceding or succeeding breach. No\nwaiver by the Company of any right under this Agreement shall be construed as a waiver of any other right. The Company shall not be\nrequired to give notice to enforce strict adherence to all terms of this Agreement.\n7.7 Headings. The headings to each section or paragraph of this Agreement are provided for convenience of reference only and shall\nhave no legal effect in the interpretation of the terms hereof.\n7.8 Attorney’s Fees. In the event of litigation between me and the Company, the non-prevailing party (as determined at the time the court\nrenders final non-appealable judgment on the litigation as a whole) shall pay to the prevailing party, in addition to any other amounts awarded,\nall reasonable legal and other related costs and expenses, including for example but not limited to attorneys’ fees, expert witness fees, court\ncosts, costs of appeal, and all other reasonable out-of-pocket expenses incurred by the prevailing party in connection with such litigation.\n \n[Signature Page Follows]\nThis Agreement shall be effective as of the first day of my Membership on the Company’s Board of Directors.\nI UNDERSTAND THAT THIS AGREEMENT RESTRICTS MY RIGHT TO DISCLOSE OR USE THE COMPANY’S CONFIDENTIAL\nAND PROPRIETARY INFORMATION DURING OR SUBSEQUENT TO MY POSITION ON THE NEWGISTICS, INC. BOARD OF\nDIRECTORS.\n/s/ Stephen M. Mattessich\nStephen M. Mattessich\nACCEPTED AND AGREED TO:\nNEWGISTICS, INC.\nBy: /s/ William J. Razzouk\nWilliam J. Razzouk\nPresident and Chief Executive Officer NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement ("Agreement") is entered into as of March 29, 2011, by and between the undersigned and Newgistics, Inc. (the\n"Company"), with reference to the following:\nRECITALS\nWHEREAS, I have been elected to serve on the Company's Board of Directors (the "Board"); and\nWHEREAS, in my capacity as a member of the Board, I will receive the Company's confidential and Proprietary Information (as defined\nbelow) and, subject to the Board's discretion and approval, the Company will grant me a present right to purchase shares of the Company's common\nstock, in each case as further provided in the offer letter by and between me and the Company (the "Board Offer Letter"); and\nWHEREAS, this Agreement is necessary to protect and prevent any unauthorized, improper or unlawful disclosure of the Company's\nProprietary Information.\nAGREEMENT\nNOW THEREFORE, in exchange for the consideration provided to me in connection with my membership on the Board, including but not\nlimited to the Company's promise to provide me with immediate access to its Proprietary Information and, subject to the Board of Directors'\ndiscretion and approval, the promise to grant me a present right to purchase shares of the Company's common stock, and for other valuable\nconsideration, the receipt and sufficiency of which is hereby acknowledged, I agree as follows:\n1.\nRecognition of Company's Rights; Nondisclosure.\nAt all times that I am a member of the Board (hereinafter referred to as my "Membership") and for two years thereafter, I will hold in\nstrictest confidence and will not disclose, use, lecture upon, or publish any of the Company's confidential or Proprietary Information (defined\nbelow), except as such disclosure, use, or publication may be required in connection with my Membership, or unless the President or the Board\nexpressly authorizes such in writing. I hereby assign to the Company any rights I may have or acquire in such confidential or Proprietary\nInformation and recognize that all confidential and Proprietary Information shall be the sole property of the Company and its assigns and that\nthe Company and its assigns shall be the sole owner of all patent rights, copyrights, trade secret rights, and all other rights throughout the\nworld (collectively, "Proprietary Rights") in connection therewith. I further recognize that any suggestions, comments or contributions I make\nat\nany meeting of the Board or in connection with my duties during the term of my Membership is the Company's confidential and Proprietary\nInformation.\nThe term "Proprietary Information" shall mean trade secrets, confidential knowledge, data, or any other proprietary information of the\nCompany and each of its subsidiaries or affiliated companies. By way of illustration but not limitation, "Proprietary Information" includes\n(a) inventions, trade secrets, ideas, processes, formulas, data, lists, programs, other works of authorship, know-how, improvements,\ndiscoveries, developments, designs, and techniques relating to the business or proposed business of the Company and that were learned or\ndiscovered by me during the term of my Membership with the Company; (b) information regarding plans for research, development, new\nproducts and services, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs,\nsuppliers, customer lists and customers that were learned or discovered by me during my Membership; and (c) information regarding the skills\nand compensation of employees of the Company. Proprietary Information shall not include information (i) already in my possession and not\nsubject to confidentiality requirements at the time of disclosure, (ii) obtained by me from another source without the duty of confidentiality, or\n(iii) readily available or generally known to the general public or to persons in the industry.\n2.\nThird Party Information.\nI understand, in addition, that the Company may from time to time receive from third parties confidential or proprietary information ("Third\nParty Information") subject to a duty on the Company's part to maintain the confidentiality of such information and to use it only for certain limited\npurposes. During the term of my Membership and thereafter, I will hold Third Party Information in the strictest confidence and will not disclose (to\nanyone other than Company personnel who need to know such information in connection with their work for the Company) or use, except in\nconnection with my Membership, Third Party Information unless expressly authorized in writing by an executive officer of the Company or the\nBoard.\n3.\nNo Improper Use of Materials.\nI understand and agree that, in connection with my Membership, I shall not use or disclose the proprietary or confidential information or\ntrade secrets of any employer, former employer, company for which I served on the Board of Directors, company for which I served on the\nadvisory board, or any other person or entity. During my Membership, I will not bring onto the premises of the Company any unpublished\ndocuments or any property belonging to any employer, former employer or any other person or entity to whom I have an obligation of\nconfidentiality unless consented to in writing by that employer, former employer, person, or entity.\n4.\nNo Conflicting Obligation.\nI\nrepresent\nthat\nmy\nperformance\nof\nall\nthe\nduties\nin\nconnection\nwith\nmy\nMembership\ndoes\nnot\nand\nwill\nnot\nbreach\nany\nagreement\nbetween\nme and any other company, person or entity. I have not entered into, and I agree I will not enter into, any agreement either written or oral in\nconflict herewith.\n5.\nLegal and Equitable Remedies.\nBecause my services are personal and unique and because I may have access to and become acquainted with the confidential and\nProprietary Information of the Company, the Company shall have the right to enforce this Agreement and any of its provisions by injunction,\nspecific performance, or other equitable relief, without bond and without prejudice to any other rights and remedies that the Company may\nhave for a breach of this Agreement.\n6. Notices.\nAny notices required or permitted hereunder shall be given to the appropriate party at the party's last known address. Such notice shall be\ndeemed given upon personal delivery to the last known address or if sent by certified or registered mail, three days after the date of mailing.\n7.\nGeneral Provisions.\n7.1 Governing Law. This Agreement will be governed by and construed according to the laws of the State of Texas without regard to\nconflicts of law principles.\n7.2 Exclusive Forum. I hereby irrevocably agree that the exclusive forum for any suit, action, or other proceeding arising out of or in any\nway related to this Agreement shall be in the state or federal courts in Texas, and I agree to the exclusive personal jurisdiction and venue of\nany court in Travis County, Texas.\n7.3 Entire Agreement. This Agreement, together with the terms of the Board Offer Letter, set forth the entire agreement and\nunderstanding between the Company and myself relating to the subject matter hereof and supersedes and merges all prior discussions between\nus. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing\nsigned\nby the party to be charged. Any subsequent change or changes in my duties, or compensation will not affect the validity or scope of\nthis\nAgreement. As used in this Agreement, the period of my Membership includes any time during which I may be retained by the Company as\na\nconsultant.\n7.4 Severability.. I acknowledge and agree that each agreement and covenant set forth herein constitutes a separate agreement\nindependently supported by good and adequate consideration and that each such agreement shall be severable from the other provisions of this\nAgreement and shall survive this Agreement.\n7.5 Survival. The provisions of this Agreement shall survive the termination of my Membership for any reason and the assignment of this\nAgreement by the Company to any successor in interest or other assignee.\n7.6 Waiver. No waiver by the Company of any breach of this Agreement shall be a waiver of any preceding or succeeding breach. No\nwaiver by the Company of any right under this Agreement shall be construed as a waiver of any other right. The Company shall not be\nrequired to give notice to enforce strict adherence to all terms of this Agreement.\n7.7 Headings. The headings to each section or paragraph of this Agreement are provided for convenience of reference only and shall\nhave no legal effect in the interpretation of the terms hereof.\n7.8 Attorney's Fees. In the event of litigation between me and the Company, the non-prevailing party (as determined at the time the court\nrenders final non-appealable judgment on the litigation as a whole) shall pay to the prevailing party, in addition to any other amounts awarded,\nall reasonable legal and other related costs and expenses, including for example but not limited to attorneys' fees, expert witness fees, court\ncosts, costs of appeal, and all other reasonable out-of-pocket expenses incurred by the prevailing party in connection with such litigation.\n[Signature Page Follows]\nThis Agreement shall be effective as of the first day of my Membership on the Company's Board of Directors.\nI UNDERSTAND THAT THIS AGREEMENT RESTRICTS MY RIGHT TO DISCLOSE OR USE THE COMPANY'S CONFIDENTIAL\nAND PROPRIETARY INFORMATION DURING OR SUBSEQUENT TO MY POSITION ON THE NEWGISTICS, INC. BOARD OF\nDIRECTORS.\n/s/ Stephen M. Mattessich\nStephen M. Mattessich\nACCEPTED AND AGREED TO:\nNEWGISTICS, INC.\nBy: /s/ William J. Razzouk\nWilliam J. Razzouk\nPresident and Chief Executive Officer NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (“Agreement”) is entered into as of March 29, 2011, by and between the undersigned and Newgistics, Inc. (the\n“Company”), with reference to the following:\nRECITALS\nWHEREAS, I have been elected to serve on the Company’s Board of Directors (the “Board”); and\nWHEREAS, in my capacity as a member of the Board, I will receive the Company’s confidential and Proprietary Information (as defined\nbelow) and, subject to the Board’s discretion and approval, the Company will grant me a present right to purchase shares of the Company’s common\nstock, in each case as further provided in the offer letter by and between me and the Company (the “Board Offer Letter”); and\nWHEREAS, this Agreement is necessary to protect and prevent any unauthorized, improper or unlawful disclosure of the Company’s\nProprietary Information.\nAGREEMENT\nNOW THEREFORE, in exchange for the consideration provided to me in connection with my membership on the Board, including but not\nlimited to the Company’s promise to provide me with immediate access to its Proprietary Information and, subject to the Board of Directors’\ndiscretion and approval, the promise to grant me a present right to purchase shares of the Company’s common stock, and for other valuable\nconsideration, the receipt and sufficiency of which is hereby acknowledged, I agree as follows:\n1. Recognition of Company’s Rights; Nondisclosure.\nAt all times that I am a member of the Board (hereinafter referred to as my “Membership”) and for two years thereafter, I will hold in\nstrictest confidence and will not disclose, use, lecture upon, or publish any of the Company’s confidential or Proprietary Information (defined\nbelow), except as such disclosure, use, or publication may be required in connection with my Membership, or unless the President or the Board\nexpressly authorizes such in writing. I hereby assign to the Company any rights I may have or acquire in such confidential or Proprietary\nInformation and recognize that all confidential and Proprietary Information shall be the sole property of the Company and its assigns and that\nthe Company and its assigns shall be the sole owner of all patent rights, copyrights, trade secret rights, and all other rights throughout the\nworld (collectively, “Proprietary Rights”) in connection therewith. I further recognize that any suggestions, comments or contributions I make\nat any meeting of the Board or in connection with my duties during the term of my Membership is the Company’s confidential and Proprietary\nInformation.\nThe term “Proprietary Information” shall mean trade secrets, confidential knowledge, data, or any other proprietary information of the\nCompany and each of its subsidiaries or affiliated companies. By way of illustration but not limitation, “Proprietary Information” includes\n(a) inventions, trade secrets, ideas, processes, formulas, data, lists, programs, other works of authorship, know-how, improvements,\ndiscoveries, developments, designs, and techniques relating to the business or proposed business of the Company and that were learned or\ndiscovered by me during the term of my Membership with the Company; (b) information regarding plans for research, development, new\nproducts and services, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs,\nsuppliers, customer lists and customers that were learned or discovered by me during my Membership; and (c) information regarding the skills\nand compensation of employees of the Company. Proprietary Information shall not include information (i) already in my possession and not\nsubject to confidentiality requirements at the time of disclosure, (ii) obtained by me from another source without the duty of confidentiality, or\n(iii) readily available or generally known to the general public or to persons in the industry.\n2. Third Party Information.\nI understand, in addition, that the Company may from time to time receive from third parties confidential or proprietary information (“Third\nParty Information”) subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain limited\npurposes. During the term of my Membership and thereafter, I will hold Third Party Information in the strictest confidence and will not disclose (to\nanyone other than Company personnel who need to know such information in connection with their work for the Company) or use, except in\nconnection with my Membership, Third Party Information unless expressly authorized in writing by an executive officer of the Company or the\nBoard.\n3. No Improper Use of Materials.\nI understand and agree that, in connection with my Membership, I shall not use or disclose the proprietary or confidential information or\ntrade secrets of any employer, former employer, company for which I served on the Board of Directors, company for which I served on the\nadvisory board, or any other person or entity. During my Membership, I will not bring onto the premises of the Company any unpublished\ndocuments or any property belonging to any employer, former employer or any other person or entity to whom I have an obligation of\nconfidentiality unless consented to in writing by that employer, former employer, person, or entity.\n4. No Conflicting Obligation.\nI represent that my performance of all the duties in connection with my Membership does not and will not breach any agreement between\nme and any other company, person or entity. I have not entered into, and I agree I will not enter into, any agreement either written or oral in\nconflict herewith.\n5. Legal and Equitable Remedies.\nBecause my services are personal and unique and because I may have access to and become acquainted with the confidential and\nProprietary Information of the Company, the Company shall have the right to enforce this Agreement and any of its provisions by injunction,\nspecific performance, or other equitable relief, without bond and without prejudice to any other rights and remedies that the Company may\nhave for a breach of this Agreement.\n6. Notices.\nAny notices required or permitted hereunder shall be given to the appropriate party at the party’s last known address. Such notice shall be\ndeemed given upon personal delivery to the last known address or if sent by certified or registered mail, three days after the date of mailing.\n7. General Provisions.\n7.1 Governing Law. This Agreement will be governed by and construed according to the laws of the State of Texas without regard to\nconflicts of law principles.\n7.2 Exclusive Forum. I hereby irrevocably agree that the exclusive forum for any suit, action, or other proceeding arising out of or in any\nway related to this Agreement shall be in the state or federal courts in Texas, and I agree to the exclusive personal jurisdiction and venue of\nany court in Travis County, Texas.\n7.3 Entire Agreement. This Agreement, together with the terms of the Board Offer Letter, set forth the entire agreement and\nunderstanding between the Company and myself relating to the subject matter hereof and supersedes and merges all prior discussions between\nus. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing\nsigned by the party to be charged. Any subsequent change or changes in my duties, or compensation will not affect the validity or scope of this\nAgreement. As used in this Agreement, the period of my Membership includes any time during which I may be retained by the Company as a\nconsultant.\n7.4 Severability. I acknowledge and agree that each agreement and covenant set forth herein constitutes a separate agreement\nindependently supported by good and adequate consideration and that each such agreement shall be severable from the other provisions of this\nAgreement and shall survive this Agreement.\n7.5 Survival. The provisions of this Agreement shall survive the termination of my Membership for any reason and the assignment of this\nAgreement by the Company to any successor in interest or other assignee.\n7.6 Waiver. No waiver by the Company of any breach of this Agreement shall be a waiver of any preceding or succeeding breach. No\nwaiver by the Company of any right under this Agreement shall be construed as a waiver of any other right. The Company shall not be\nrequired to give notice to enforce strict adherence to all terms of this Agreement.\n7.7 Headings. The headings to each section or paragraph of this Agreement are provided for convenience of reference only and shall\nhave no legal effect in the interpretation of the terms hereof.\n7.8 Attorney’s Fees. In the event of litigation between me and the Company, the non-prevailing party (as determined at the time the court\nrenders final non-appealable judgment on the litigation as a whole) shall pay to the prevailing party, in addition to any other amounts awarded,\nall reasonable legal and other related costs and expenses, including for example but not limited to attorneys’ fees, expert witness fees, court\ncosts, costs of appeal, and all other reasonable out-of-pocket expenses incurred by the prevailing party in connection with such litigation.\n[Signature Page Follows]\nThis Agreement shall be effective as of the first day of my Membership on the Company’s Board of Directors.\nI UNDERSTAND THAT THIS AGREEMENT RESTRICTS MY RIGHT TO DISCLOSE OR USE THE COMPANY’S CONFIDENTIAL\nAND PROPRIETARY INFORMATION DURING OR SUBSEQUENT TO MY POSITION ON THE NEWGISTICS, INC. BOARD OF\nDIRECTORS.\n/s/ Stephen M. Mattessich\nStephen M. Mattessich\nACCEPTED AND AGREED TO:\nNEWGISTICS, INC.\nBy: /s/ William J. Razzouk\nWilliam J. Razzouk\nPresident and Chief Executive Officer e27493a33c9ed1e83afb03814033d23c.pdf effective_date jurisdiction party term EX-10.2 4 dex102.htm NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT\nExhibit 10.2\nEXECUTION COPY\nNON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY\nAGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (the “Agreement”), dated as of\nMay 26, 2011, is made by and between Skyworks Solutions, Inc., a Delaware corporation (“Buyer”), and Richard K. Williams, an individual residing\nin the State of California (the “Stockholder”). The Buyer and the Stockholder are each referred to in this Agreement as a “Party” and collectively as\nthe “Parties.”\nRECITALS\nA. The Buyer, PowerCo Acquisition Corp., a Delaware corporation (the “Merger Sub”), and Advanced Analogic Technologies, Inc., a\nDelaware corporation (the “Company”) have entered into an Agreement and Plan of Merger, dated as of May 26, 2011 (the “Merger Agreement”),\npursuant to which the Buyer will acquire the Company through a merger of Merger Sub with and into the Company. After giving effect to the\nMerger, the Company will be a wholly-owned subsidiary of the Buyer (the “Merger”).\nB. The Company is engaged, either directly or through subsidiaries, in the business of developing, designing, manufacturing, licensing,\nmarketing, selling and distributing power management semiconductors and related software (the “Business”). (For the purpose of clarity: The\nCompany does not engage in business, applications or software unrelated to power management semiconductors (such as microprocessors, digital\nmemory, discrete sensors and biotech). It also does not engage in devices and circuits used in motor drive.)\nC. The parties acknowledge that the relevant market for the Business is worldwide in scope and that intense worldwide competition\nexists for the products and services of the Business.\nD. The Stockholder has a substantial equity interest in the Company and will receive significant cash and stock proceeds and other\nvaluable consideration as a result of the Merger. The Stockholder is a member of the Company’s board of directors, an executive officer of the\nCompany and one of the Company’s key employees, and acknowledges that he has detailed knowledge of competitively sensitive and important\nConfidential Information and trade secrets of the Company, including information regarding the Company’s plans and relationships with customers,\nsuppliers and others. The Stockholder recognizes the Buyer’s interest, as a purchaser of the Company, in protecting, among other things, the\nrelationships that the Company and its subsidiaries have with customers and suppliers and the goodwill associated with their ongoing business.\nE. The Parties agree that it is their mutual desire that the entire goodwill of the Company and its business be transferred to the Buyer as\npart of the Merger, and they acknowledge that they explicitly considered the value of the goodwill to be transferred in the Merger, and that such\ngoodwill was valued as a component of the consideration to be paid by the Buyer in and for the Merger. The Parties further agree that the Buyer’s\nfailure to receive the entire goodwill contemplated by the Merger would have affected the Buyer’s willingness to enter into the Merger Agreement or\nreduced the value of the Merger and the Company to the Buyer and the price the Buyer was willing to pay to acquire the Company.\nEXECUTION COPY\nF. The Stockholder acknowledges and agrees that it is his intention to transfer the goodwill reflected in the capital stock of the Company\nthat he owns and that the Stockholder has a material economic interest in the consummation of the Merger. The Stockholder has considered the\neffects of this Agreement, considers them reasonable and, in order to induce the Buyer to enter into the Merger Agreement and consummate the\nMerger, the Stockholder has agreed to enter into and be bound by this Agreement.\nAccordingly, the Parties are executing and delivering this Agreement contemporaneously with the execution and delivery of the Merger\nAgreement, and that the continued effectiveness of this Agreement is a condition to the Buyer’s obligations to consummate the Merger.\nNOW, THEREFORE, in consideration of the premises, the mutual covenants and agreements set forth herein, and for other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged, the Buyer and the Stockholder, for themselves and their\nsuccessors and assigns, and intending to be legally bound, hereby agree as follows:\nAGREEMENTS\n1. Definitions. As used in this Agreement, the following terms shall have the following respective meanings.\n(a) “Affiliate” of a Person means any other Person that directly or indirectly through one or more intermediaries, controls, is\ncontrolled by or is under common control with the first Person. For purposes of this definition, “control” of a Person shall mean the possession,\ndirectly or indirectly, of the power to direct or cause the direction of the management policies of a Person, whether through the ownership of voting\nsecurities, (including, but not limited to, the ownership of ten percent (10%) or more of the voting securities of the Person), by contract, as trustee or\nexecutor or otherwise.\n(b) “Company Customer” means (i) any Person to whom or which the Company or any of its subsidiaries is currently selling\nproducts or providing services or with whom or which the Company or any of its subsidiaries currently has a signed agreement to sell products or\nprovide services, (ii) any Person to whom or which the Company or any of its subsidiaries sold products, provided services or signed an agreement\nto sell products or provide services during the twenty-four (24) month period immediately preceding the Effective Time, (iii) any Person to whom or\nwhich the Company or any of its subsidiaries has contacted, solicited or provided a proposal for services, or any Person who has contacted or\nsolicited the Company or any of its subsidiaries regarding products or services of the Company or any of its subsidiaries, during the twenty-four\n(24) month period immediately preceding the Effective Time, (iv) any Person whom the Stockholder knows or has reason to know the Company or\nany of its subsidiaries currently plans to solicit as a client for its products or services, or future products or services, or (v) any Affiliate of any Person\ndescribed in clauses (i) through (iv) above.\n-2-\nEXECUTION COPY\n(c) “Confidential Information” means any and all confidential and proprietary information pertaining to the Company or any of\nits subsidiaries, such as proposals, plans, inventions, practices, systems, programs, subscriptions, strategies, formulas, processes, methods,\ntechniques, research, records, suppliers, sources, customer lists, billing information, other forms of business information, and trade secrets of every\nkind and character, whether or not they constitute a trade secret under applicable law. The term Confidential Information shall not include any\ninformation in the public domain or information that is rightfully in the possession of a third party and is not subject to a confidentiality obligation,\nprovided that such information has not entered the public domain or come into possession of a third party due to the violation of any contractual,\nfiduciary or other legal obligation of the Stockholder or any other person or entity.\n(d) “Person” means an individual, corporation, limited liability company, partnership, limited partnership, association, estate,\ntrust, unincorporated organization, governmental entity or authority (including, but not limited to, any municipal, county or state entity, board,\nauthority, agency or similar organization), or any other entity or organization.\n(e) “Restricted Period” means the period from and after the date hereof and continuing until the twenty-four (24) month\nanniversary of the Effective Time (as such term is defined in the Merger Agreement) of the Merger.\n2. Non-Competition. As an inducement for the Buyer to enter into the Merger Agreement and to consummate the Merger, and in\nconnection with the sale of the Stockholder’s equity interest in the Company pursuant to the Merger, the Stockholder agrees that during the\nRestricted Period, the Stockholder shall not, anywhere in the world, directly or indirectly engage, without the express prior written consent of the\nBuyer after the date hereof, in any business or activity in competition with the Business, whether as an employee, consultant, partner, principal,\nagent, representative, equity holder or in any other individual, corporate or representative capacity (without limitation by specific enumeration of the\nforegoing), or render any services or provide any advice to any Person in competition (or seeking to compete, directly or indirectly) with the\nBusiness (a “Competing Business”). Nothing in this Section 2 shall prohibit the Stockholder from (i) acquiring up to two percent (2%) of any class\nof outstanding equity security of any competing business whose equity securities are regularly traded on a national securities exchange or The\nNasdaq Market, (ii) making or holding a passive investment in a venture fund, angel fund, or similar investment vehicle that invests in a competing\nbusiness representing less than two percent (2%) of the total investment of such venture fund, angel fund, or similar investment or (iii) making or\nholding a passive investment in a private company engaged in a competing business representing less than two percent (2%) of the total investment\nof such private company; provided, that if the Stockholder is then an employee of the Buyer, the Company or any of their respective subsidiaries,\nsuch investment shall be permitted only if (i) such investment does not interfere with the Stockholder’s duties and obligations to the Buyer, the\nCompany and their respective subsidiaries, as determined in good faith by the Board of Directors of the Company (prior to the Effective Time) or the\nBuyer (following the Effective Time) in its sole discretion and (ii) such shares shall not constitute more than five percent (5%) of the Stockholder’s\nnet worth.\n-3-\nEXECUTION COPY\n3. Non-Solicitation of Employees. During the Restricted Period:\n(a) The Stockholder shall not directly or indirectly solicit (or assist, participate in or promote the solicitation of) any individual\nwho is then employed by the Buyer, the Company or any of their respective direct or indirect subsidiaries to leave such employment. The Parties\nhereto agree that the placing of general advertisements in newspapers, magazines or electronic media, or other communication targeted to a\ngeneralized audience, in either case which are not specifically aimed at the Buyer, the Company, or any of their respective direct or indirect\nsubsidiaries shall not, in itself, constitute a breach of this Section 3.\n(b) The Stockholder shall not disclose any intent that he may form to terminate his employment with the Buyer, the Company or\nany of their respective direct or indirect subsidiaries to any employee of the Buyer, the Company or any of their respective subsidiaries prior to the\nearliest to occur of either the date on which such employment terminates or the date on which the Buyer or the Company provides notice to\nemployees generally of such termination.\n(c) If a former employee of the Company or any of its subsidiaries contacts the Stockholder about (i) any business matter\ninvolving the Buyer, the Company or any of their respective subsidiaries, or (ii) any matter involving the former employee’s new business\n(including, but not limited to, prospective employment with such new business), the Stockholder shall inform the former employee that he cannot\ndiscuss the matter further.\n4. Non-Solicitation of Company Customers. During the Restricted Period:\n(a) The Stockholder shall not directly or indirectly solicit, divert or take away, or assist in or attempt to solicit, divert or take\naway, the business or patronage of any Company Customer.\n(b) If a Company Customer contacts the Stockholder concerning the possibility of a discontinuation or reduction of the Company\nCustomer’s business with the Buyer, the Company or any of their respective subsidiaries, the Stockholder shall inform such Company Customer that\nhe cannot discuss the matter further without informing the Buyer and the Company.\n(c) The Stockholder shall not disclose any intent that he may form to terminate his employment with the Buyer, the Company or\nany of their respective subsidiaries to any Company Customer prior to the termination of such employment or the date, if earlier, on which the Buyer\nor the Company publicly discloses such termination.\n5. Confidentiality.\n(a) The Stockholder acknowledges that Confidential Information has been and will continue to be of central importance to the\nbusiness of the Company and its subsidiaries and that disclosure of it to or its use by others could cause substantial loss to the Company and its\nsubsidiaries and, following the Effective Time, to the Buyer and its subsidiaries. Accordingly, from and after the date of this Agreement, the\nStockholder shall maintain the confidentiality of all Confidential Information and shall not use or disclose any\n-4-\nEXECUTION COPY\nConfidential Information to any Person, for any reason or purpose, except (i) as reasonably required to perform his duties to the Company and its\nsubsidiaries as a director, officer and/or employee thereof (or his duties to the Buyer and its subsidiaries, as the case may be, following the Effective\nTime), and for their sole benefit, or (ii) as required by law as described in Section 5(c) below.\n(b) The obligations contained in Section 5(a) shall not apply to any information which has: (i) become publicly known and made\ngenerally available through no wrongful act of the Stockholder or of others who were under confidentiality obligations as to the item or items\ninvolved, or (ii) been independently acquired or developed by the Stockholder outside the scope of his duties at the Company and its subsidiaries or\nany predecessor of the Company.\n(c) If the Stockholder becomes legally obligated (by deposition, interrogatory, request for documents, subpoena, civil\ninvestigation, demand or similar process) to disclose any Confidential Information, the Stockholder shall provide the Buyer and the Company with\nprompt written notice of such requirement so that the Buyer or the Company, as the case may be, may seek a protective order or other appropriate\nrelief. If a protective order or other remedy is not obtained by the Buyer or the Company, the Stockholder may furnish only that portion of\nConfidential Information which is required pursuant to the legal process, and (at the Buyer’s or the Company’s expense, as the case may be) shall\nexercise reasonable efforts to obtain reliable assurances that confidential treatment will be accorded such Confidential Information. If either during\nor after his employment with the Buyer, the Company or any of their respective subsidiaries, the Stockholder receives a subpoena or other inquiry\nrelated to a regulatory, civil or criminal proceeding concerning any matter which may involve the Buyer, the Company or any of their respective\nsubsidiaries, whether or not such matter could result in the Stockholder having to disclose any Confidential Information, the Stockholder shall give\nprompt notice to the Buyer or the Company, as the case may be, of the subpoena or inquiry and the matter covered thereby and any information\nwhich the Stockholder is required to produce in connection therewith.\n6. Equitable Remedies. The Buyer and the Stockholder confirm that the restrictions contained in this Agreement are, in view of the\nnature of the business of the Company, reasonable and necessary to protect the legitimate interests of the Buyer and that any breach of any material\nprovision in this Agreement will result in irreparable injury to the Buyer. Therefore, the Stockholder hereby agrees that, in the event of any breach or\nthreatened breach of any material term or condition of this Agreement by the Stockholder, the Buyer’s remedies at law will be inadequate and, in any\nsuch event, the Buyer shall be entitled to commence an action for preliminary and permanent injunctive relief and other equitable and monetary\nrelief (including attorneys’ fees) in any court of competent jurisdiction, and that if such relief is granted the Buyer shall not be required to post any\nbond.\n7. Miscellaneous.\n7.1 Governing Law. This Agreement shall be interpreted and enforced pursuant to the laws of the State of California, without\ngiving any effect to the conflict of laws rules or principles of any jurisdiction.\n-5-\nEXECUTION COPY\n7.2 Dispute Resolution; Waiver of Jury Trial.\n(a) All disputes, claims or controversies arising out of or in connection with this Agreement shall be subject to the jurisdiction of\nthe courts of the State of California located in Santa Clara County, California and the United States District Court for the Northern District of\nCalifornia, and each of the Company and the Stockholder hereby waives any objection to the laying of venue in any such court. Notwithstanding the\nprevious sentence and provided both Parties consent, the Parties may, at any time after the inception of a dispute, claim or controversy arising out of\nor in connection with this Agreement, submit such dispute, claim or controversy to binding arbitration under the rules of the American Arbitration\nAssociation in effect at the inception of such dispute, claim or controversy. The Parties shall cooperate fully with each other so that any such dispute,\nclaim or controversy submitted to binding arbitration pursuant to this Section 7.2 may be resolved as expeditiously as possible.\n(b) The prevailing Party in a proceeding commenced with respect to any dispute, claim or controversy arising out of or in\nconnection with this Agreement shall be entitled to recover, in addition to any other relief awarded, its reasonable costs and expenses, including\nattorneys’ and expert witness fees and disbursements, of preparing for and participating in any such proceeding.\n(c) The Buyer and the Stockholder each hereby waives the right to trial by jury in all proceedings commenced with respect to any\ndisputes, claims or controversies arising out of or in connection with this Agreement.\n(d) STOCKHOLDER HAS READ AND UNDERSTANDS THIS SECTION 7.2 WHICH DISCUSSES THE WAIVER OF\nSTOCKHOLDER’S RIGHT TO A JURY TRIAL. STOCKHOLDER UNDERSTANDS THAT BY SIGNING THIS AGREEMENT,\nSTOCKHOLDER IS WAIVING HIS RIGHT TO A JURY TRIAL IN ALL DISPUTES, CLAIMS OR CONTROVERSIES RELATING TO ANY\nASPECT OF THIS AGREEMENT.\n7.3 Amendments. This Agreement may not be changed, amended or modified orally. This Agreement may be changed, amended\nor modified only by an agreement in writing signed by the Party against whom enforcement of any such waiver, change, amendment, modification or\ndischarge may be sought.\n7.4 Assignment. This Agreement shall be binding upon and inure to the benefit of the executors, administrators, heirs, successors,\nand assigns of the Parties; provided, however, that this Agreement shall not be assignable by the Stockholder. The Stockholder agrees that, upon\nrequest therefor, he will, in writing, acknowledge and consent to any such assignment of this Agreement.\n7.5 Waiver. Failure or delay on the part of either Party hereto to enforce any right, power or privilege hereunder shall not be\ndeemed to constitute a waiver thereof. A waiver by one Party of a breach of any promise by the other Party contained herein shall not operate as or\nbe construed to constitute a waiver of any subsequent breach of such promise by such other Party.\n-6-\nEXECUTION COPY\n7.6 Headings. The headings of the sections and paragraphs contained in this Agreement are for reference purposes only and shall\nnot in any way affect the meaning or interpretation of any provision of this Agreement.\n7.7 Construction. The language used in this Agreement shall be deemed to be the language chosen by the Parties hereto to\nexpress their mutual intent, and no rule of strict construction, for or against either Party, shall be applied. Capitalized terms used in this Agreement\nwithout definition shall have the respective meaning ascribed to them in the Merger Agreement.\n7.8 Counterparts. This Agreement may be executed in counterparts, none of which need contain the signature of more than one\nParty hereto, each of which shall be deemed to be an original, and all of which together shall constitute a single agreement.\n7.9 Acknowledgement. The Stockholder represents and warrants that (a) he has carefully read and fully understands the terms of\nthis Agreement; (b) he has signed it voluntarily and with full knowledge of its contents, its legal consequences, and the rights and obligations of the\nParties; and (c) that the Stockholder has been advised to and has had a reasonable opportunity to review this Agreement and consult with the attorney\nor other personal counsel of the Stockholder’s choosing before entering into this Agreement. The Stockholder expressly agrees that he has no\nexpectations or understandings contrary to the Agreement and no usage of trade or regular practice in the industry shall be used to modify this\nAgreement. The Stockholder acknowledges that this Agreement constitutes the entire agreement between the Stockholder and the Company with\nrespect to the subject matter hereof and this Agreement supersedes any and all prior or contemporaneous written or oral agreements, representations,\nor any other documents or understandings; provided, however, that nothing herein supersedes the Stockholder Agreement of even date herewith to\nwhich the Stockholder is a party.\n7.10 Effect. This Agreement shall be effective from and after the date first written above upon execution and delivery by the\nParties; provided, however, that if the Merger is not consummated and the Merger Agreement is terminated, this Agreement shall automatically\nterminate concurrently with the termination of the Merger Agreement and shall be of no further force or effect.\n[signature page follows]\n-7-\nIN WITNESS WHEREOF, the Parties have executed this Non-Competition, Non-Solicitation and Confidentiality Agreement as of the date\nfirst set forth above.\nSKYWORKS SOLUTIONS, INC.\nBy: /s/ David J. Aldrich\nName: David J. Aldrich\nTitle: President and CEO\nSIGNATURE PAGE TO NON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT\nIN WITNESS WHEREOF, the Parties have executed this Non-Competition, Non-Solicitation and Confidentiality Agreement as of the date\nfirst set forth above.\nSTOCKHOLDER\nBy: /s/ Richard K. Williams\nSIGNATURE PAGE TO NON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT EX-10.2 4 dex102.htm NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT\nExhibit 10.2\nEXECUTION COPY\nNON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY\nAGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (the “Agreement”), dated as of\nMay 26, 2011, is made by and between Skyworks Solutions, Inc., a Delaware corporation (“Buyer”), and Richard K. Williams, an individual residing\nin the State of California (the “Stockholder”). The Buyer and the Stockholder are each referred to in this Agreement as a “Party” and collectively as\nthe “Parties.”\nRECITALS\nA. The Buyer, PowerCo Acquisition Corp., a Delaware corporation (the “Merger Sub”), and Advanced Analogic Technologies, Inc., a\nDelaware corporation (the “Company”) have entered into an Agreement and Plan of Merger, dated as of May 26, 2011 (the “Merger Agreement”),\npursuant to which the Buyer will acquire the Company through a merger of Merger Sub with and into the Company. After giving effect to the\nMerger, the Company will be a wholly-owned subsidiary of the Buyer (the “Merger”).\nB. The Company is engaged, either directly or through subsidiaries, in the business of developing, designing, manufacturing, licensing,\nmarketing, selling and distributing power management semiconductors and related software (the “Business™). (For the purpose of clarity: The\nCompany does not engage in business, applications or software unrelated to power management semiconductors (such as microprocessors, digital\nmemory, discrete sensors and biotech). It also does not engage in devices and circuits used in motor drive.)\nC. The parties acknowledge that the relevant market for the Business is worldwide in scope and that intense worldwide competition\nexists for the products and services of the Business.\nD. The Stockholder has a substantial equity interest in the Company and will receive significant cash and stock proceeds and other\nvaluable consideration as a result of the Merger. The Stockholder is a member of the Company’s board of directors, an executive officer of the\nCompany and one of the Company’s key employees, and acknowledges that he has detailed knowledge of competitively sensitive and important\nConfidential Information and trade secrets of the Company, including information regarding the Company’s plans and relationships with customers,\nsuppliers and others. The Stockholder recognizes the Buyer’s interest, as a purchaser of the Company, in protecting, among other things, the\nrelationships that the Company and its subsidiaries have with customers and suppliers and the goodwill associated with their ongoing business.\nE. The Parties agree that it is their mutual desire that the entire goodwill of the Company and its business be transferred to the Buyer as\npart of the Merger, and they acknowledge that they explicitly considered the value of the goodwill to be transferred in the Merger, and that such\ngoodwill was valued as a component of the consideration to be paid by the Buyer in and for the Merger. The Parties further agree that the Buyer’s\nfailure to receive the entire goodwill contemplated by the Merger would have affected the Buyer’s willingness to enter into the Merger Agreement or\nreduced the value of the Merger and the Company to the Buyer and the price the Buyer was willing to pay to acquire the Company.\nEXECUTION COPY\nF. The Stockholder acknowledges and agrees that it is his intention to transfer the goodwill reflected in the capital stock of the Company\nthat he owns and that the Stockholder has a material economic interest in the consummation of the Merger. The Stockholder has considered the\neffects of this Agreement, considers them reasonable and, in order to induce the Buyer to enter into the Merger Agreement and consummate the\nMerger, the Stockholder has agreed to enter into and be bound by this Agreement.\nAccordingly, the Parties are executing and delivering this Agreement contemporaneously with the execution and delivery of the Merger\nAgreement, and that the continued effectiveness of this Agreement is a condition to the Buyer’s obligations to consummate the Merger.\nNOW, THEREFORE, in consideration of the premises, the mutual covenants and agreements set forth herein, and for other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged, the Buyer and the Stockholder, for themselves and their\nsuccessors and assigns, and intending to be legally bound, hereby agree as follows:\nAGREEMENTS\n1. Definitions. As used in this Agreement, the following terms shall have the following respective meanings.\n(a) “Affiliate” of a Person means any other Person that directly or indirectly through one or more intermediaries, controls, is\ncontrolled by or is under common control with the first Person. For purposes of this definition, “control” of a Person shall mean the possession,\ndirectly or indirectly, of the power to direct or cause the direction of the management policies of a Person, whether through the ownership of voting\nsecurities, (including, but not limited to, the ownership of ten percent (10%) or more of the voting securities of the Person), by contract, as trustee or\nexecutor or otherwise.\n(b) “Company_ Customer” means (i) any Person to whom or which the Company or any of its subsidiaries is currently selling\nproducts or providing services or with whom or which the Company or any of its subsidiaries currently has a signed agreement to sell products or\nprovide services, (ii) any Person to whom or which the Company or any of its subsidiaries sold products, provided services or signed an agreement\nto sell products or provide services during the twenty-four (24) month period immediately preceding the Effective Time, (iii) any Person to whom or\nwhich the Company or any of its subsidiaries has contacted, solicited or provided a proposal for services, or any Person who has contacted or\nsolicited the Company or any of its subsidiaries regarding products or services of the Company or any of its subsidiaries, during the twenty-four\n(24) month period immediately preceding the Effective Time, (iv) any Person whom the Stockholder knows or has reason to know the Company or\nany of its subsidiaries currently plans to solicit as a client for its products or services, or future products or services, or (v) any Affiliate of any Person\ndescribed in clauses (i) through (iv) above.\n-\nEXECUTION COPY\n(c) “Confidential Information” means any and all confidential and proprietary information pertaining to the Company or any of\nits subsidiaries, such as proposals, plans, inventions, practices, systems, programs, subscriptions, strategies, formulas, processes, methods,\ntechniques, research, records, suppliers, sources, customer lists, billing information, other forms of business information, and trade secrets of every\nkind and character, whether or not they constitute a trade secret under applicable law. The term Confidential Information shall not include any\ninformation in the public domain or information that is rightfully in the possession of a third party and is not subject to a confidentiality obligation,\nprovided that such information has not entered the public domain or come into possession of a third party due to the violation of any contractual,\nfiduciary or other legal obligation of the Stockholder or any other person or entity.\n(d) “Person” means an individual, corporation, limited liability company, partnership, limited partnership, association, estate,\ntrust, unincorporated organization, governmental entity or authority (including, but not limited to, any municipal, county or state entity, board,\nauthority, agency or similar organization), or any other entity or organization.\n(e) “Restricted Period” means the period from and after the date hereof and continuing until the twenty-four (24) month\nanniversary of the Effective Time (as such term is defined in the Merger Agreement) of the Merger.\n2. Non-Competition. As an inducement for the Buyer to enter into the Merger Agreement and to consummate the Merger, and in\nconnection with the sale of the Stockholder’s equity interest in the Company pursuant to the Merger, the Stockholder agrees that during the\nRestricted Period, the Stockholder shall not, anywhere in the world, directly or indirectly engage, without the express prior written consent of the\nBuyer after the date hereof, in any business or activity in competition with the Business, whether as an employee, consultant, partner, principal,\nagent, representative, equity holder or in any other individual, corporate or representative capacity (without limitation by specific enumeration of the\nforegoing), or render any services or provide any advice to any Person in competition (or seeking to compete, directly or indirectly) with the\nBusiness (a “Competing Business”). Nothing in this Section 2 shall prohibit the Stockholder from (i) acquiring up to two percent (2%) of any class\nof outstanding equity security of any competing business whose equity securities are regularly traded on a national securities exchange or The\nNasdaq Market, (ii) making or holding a passive investment in a venture fund, angel fund, or similar investment vehicle that invests in a competing\nbusiness representing less than two percent (2%) of the total investment of such venture fund, angel fund, or similar investment or (iii) making or\nholding a passive investment in a private company engaged in a competing business representing less than two percent (2%) of the total investment\nof such private company; provided, that if the Stockholder is then an employee of the Buyer, the Company or any of their respective subsidiaries,\nsuch investment shall be permitted only if (i) such investment does not interfere with the Stockholder’s duties and obligations to the Buyer, the\nCompany and their respective subsidiaries, as determined in good faith by the Board of Directors of the Company (prior to the Effective Time) or the\nBuyer (following the Effective Time) in its sole discretion and (ii) such shares shall not constitute more than five percent (5%) of the Stockholder’s\nnet worth.\n_3-\nEXECUTION COPY\n3. Non-Solicitation of Employees. During the Restricted Period:\n(a) The Stockholder shall not directly or indirectly solicit (or assist, participate in or promote the solicitation of) any individual\nwho is then employed by the Buyer, the Company or any of their respective direct or indirect subsidiaries to leave such employment. The Parties\nhereto agree that the placing of general advertisements in newspapers, magazines or electronic media, or other communication targeted to a\ngeneralized audience, in either case which are not specifically aimed at the Buyer, the Company, or any of their respective direct or indirect\nsubsidiaries shall not, in itself, constitute a breach of this Section 3.\n(b) The Stockholder shall not disclose any intent that he may form to terminate his employment with the Buyer, the Company or\nany of their respective direct or indirect subsidiaries to any employee of the Buyer, the Company or any of their respective subsidiaries prior to the\nearliest to occur of either the date on which such employment terminates or the date on which the Buyer or the Company provides notice to\nemployees generally of such termination.\n(c) If a former employee of the Company or any of its subsidiaries contacts the Stockholder about (i) any business matter\ninvolving the Buyer, the Company or any of their respective subsidiaries, or (ii) any matter involving the former employee’s new business\n(including, but not limited to, prospective employment with such new business), the Stockholder shall inform the former employee that he cannot\ndiscuss the matter further.\n4. Non-Solicitation of Company Customers. During the Restricted Period:\n(a) The Stockholder shall not directly or indirectly solicit, divert or take away, or assist in or attempt to solicit, divert or take\naway, the business or patronage of any Company Customer.\n(b) If a Company Customer contacts the Stockholder concerning the possibility of a discontinuation or reduction of the Company\nCustomer’s business with the Buyer, the Company or any of their respective subsidiaries, the Stockholder shall inform such Company Customer that\nhe cannot discuss the matter further without informing the Buyer and the Company.\n(c) The Stockholder shall not disclose any intent that he may form to terminate his employment with the Buyer, the Company or\nany of their respective subsidiaries to any Company Customer prior to the termination of such employment or the date, if earlier, on which the Buyer\nor the Company publicly discloses such termination.\n5. Confidentiality.\n(a) The Stockholder acknowledges that Confidential Information has been and will continue to be of central importance to the\nbusiness of the Company and its subsidiaries and that disclosure of it to or its use by others could cause substantial loss to the Company and its\nsubsidiaries and, following the Effective Time, to the Buyer and its subsidiaries. Accordingly, from and after the date of this Agreement, the\nStockholder shall maintain the confidentiality of all Confidential Information and shall not use or disclose any\n4-\nEXECUTION COPY\nConfidential Information to any Person, for any reason or purpose, except (i) as reasonably required to perform his duties to the Company and its\nsubsidiaries as a director, officer and/or employee thereof (or his duties to the Buyer and its subsidiaries, as the case may be, following the Effective\nTime), and for their sole benefit, or (ii) as required by law as described in Section 5(c) below.\n(b) The obligations contained in Section 5(a) shall not apply to any information which has: (i) become publicly known and made\ngenerally available through no wrongful act of the Stockholder or of others who were under confidentiality obligations as to the item or items\ninvolved, or (ii) been independently acquired or developed by the Stockholder outside the scope of his duties at the Company and its subsidiaries or\nany predecessor of the Company.\n(c) If the Stockholder becomes legally obligated (by deposition, interrogatory, request for documents, subpoena, civil\ninvestigation, demand or similar process) to disclose any Confidential Information, the Stockholder shall provide the Buyer and the Company with\nprompt written notice of such requirement so that the Buyer or the Company, as the case may be, may seek a protective order or other appropriate\nrelief. If a protective order or other remedy is not obtained by the Buyer or the Company, the Stockholder may furnish only that portion of\nConfidential Information which is required pursuant to the legal process, and (at the Buyer’s or the Company’s expense, as the case may be) shall\nexercise reasonable efforts to obtain reliable assurances that confidential treatment will be accorded such Confidential Information. If either during\nor after his employment with the Buyer, the Company or any of their respective subsidiaries, the Stockholder receives a subpoena or other inquiry\nrelated to a regulatory, civil or criminal proceeding concerning any matter which may involve the Buyer, the Company or any of their respective\nsubsidiaries, whether or not such matter could result in the Stockholder having to disclose any Confidential Information, the Stockholder shall give\nprompt notice to the Buyer or the Company, as the case may be, of the subpoena or inquiry and the matter covered thereby and any information\nwhich the Stockholder is required to produce in connection therewith.\n6. Equitable Remedies. The Buyer and the Stockholder confirm that the restrictions contained in this Agreement are, in view of the\nnature of the business of the Company, reasonable and necessary to protect the legitimate interests of the Buyer and that any breach of any material\nprovision in this Agreement will result in irreparable injury to the Buyer. Therefore, the Stockholder hereby agrees that, in the event of any breach or\nthreatened breach of any material term or condition of this Agreement by the Stockholder, the Buyer’s remedies at law will be inadequate and, in any\nsuch event, the Buyer shall be entitled to commence an action for preliminary and permanent injunctive relief and other equitable and monetary\nrelief (including attorneys’ fees) in any court of competent jurisdiction, and that if such relief is granted the Buyer shall not be required to post any\nbond.\n7. Miscellaneous.\n7.1 Governing Law. This Agreement shall be interpreted and enforced pursuant to the laws of the State of California, without\ngiving any effect to the conflict of laws rules or principles of any jurisdiction.\n_5-\nEXECUTION COPY\n7.2 Dispute Resolution; Waiver of Jury Trial.\n(a) All disputes, claims or controversies arising out of or in connection with this Agreement shall be subject to the jurisdiction of\nthe courts of the State of California located in Santa Clara County, California and the United States District Court for the Northern District of\nCalifornia, and each of the Company and the Stockholder hereby waives any objection to the laying of venue in any such court. Notwithstanding the\nprevious sentence and provided both Parties consent, the Parties may, at any time after the inception of a dispute, claim or controversy arising out of\nor in connection with this Agreement, submit such dispute, claim or controversy to binding arbitration under the rules of the American Arbitration\nAssociation in effect at the inception of such dispute, claim or controversy. The Parties shall cooperate fully with each other so that any such dispute,\nclaim or controversy submitted to binding arbitration pursuant to this Section 7.2 may be resolved as expeditiously as possible.\n(b) The prevailing Party in a proceeding commenced with respect to any dispute, claim or controversy arising out of or in\nconnection with this Agreement shall be entitled to recover, in addition to any other relief awarded, its reasonable costs and expenses, including\nattorneys’ and expert witness fees and disbursements, of preparing for and participating in any such proceeding.\n(c) The Buyer and the Stockholder each hereby waives the right to trial by jury in all proceedings commenced with respect to any\ndisputes, claims or controversies arising out of or in connection with this Agreement.\n(d) STOCKHOLDER HAS READ AND UNDERSTANDS THIS SECTION 7.2 WHICH DISCUSSES THE WAIVER OF\nSTOCKHOLDER’S RIGHT TO A JURY TRIAL. STOCKHOLDER UNDERSTANDS THAT BY SIGNING THIS AGREEMENT,\nSTOCKHOLDER IS WAIVING HIS RIGHT TO A JURY TRIAL IN ALL DISPUTES, CLAIMS OR CONTROVERSIES RELATING TO ANY\nASPECT OF THIS AGREEMENT.\n7.3 Amendments. This Agreement may not be changed, amended or modified orally. This Agreement may be changed, amended\nor modified only by an agreement in writing signed by the Party against whom enforcement of any such waiver, change, amendment, modification or\ndischarge may be sought.\n7.4 Assignment. This Agreement shall be binding upon and inure to the benefit of the executors, administrators, heirs, successors,\nand assigns of the Parties; provided, however, that this Agreement shall not be assignable by the Stockholder. The Stockholder agrees that, upon\nrequest therefor, he will, in writing, acknowledge and consent to any such assignment of this Agreement.\n \n7.5 Waiver. Failure or delay on the part of either Party hereto to enforce any right, power or privilege hereunder shall not be\ndeemed to constitute a waiver thereof. A waiver by one Party of a breach of any promise by the other Party contained herein shall not operate as or\nbe construed to constitute a waiver of any subsequent breach of such promise by such other Party.\n-6-\nEXECUTION COPY\n7.6 Headings. The headings of the sections and paragraphs contained in this Agreement are for reference purposes only and shall\nnot in any way affect the meaning or interpretation of any provision of this Agreement.\n7.7 Construction. The language used in this Agreement shall be deemed to be the language chosen by the Parties hereto to\nexpress their mutual intent, and no rule of strict construction, for or against either Party, shall be applied. Capitalized terms used in this Agreement\nwithout definition shall have the respective meaning ascribed to them in the Merger Agreement.\n7.8 Counterparts. This Agreement may be executed in counterparts, none of which need contain the signature of more than one\nParty hereto, each of which shall be deemed to be an original, and all of which together shall constitute a single agreement.\n7.9 Acknowledgement. The Stockholder represents and warrants that (a) he has carefully read and fully understands the terms of\nthis Agreement; (b) he has signed it voluntarily and with full knowledge of its contents, its legal consequences, and the rights and obligations of the\nParties; and (c) that the Stockholder has been advised to and has had a reasonable opportunity to review this Agreement and consult with the attorney\nor other personal counsel of the Stockholder’s choosing before entering into this Agreement. The Stockholder expressly agrees that he has no\nexpectations or understandings contrary to the Agreement and no usage of trade or regular practice in the industry shall be used to modify this\nAgreement. The Stockholder acknowledges that this Agreement constitutes the entire agreement between the Stockholder and the Company with\nrespect to the subject matter hereof and this Agreement supersedes any and all prior or contemporaneous written or oral agreements, representations,\nor any other documents or understandings; provided, however, that nothing herein supersedes the Stockholder Agreement of even date herewith to\nwhich the Stockholder is a party.\n \n7.10 Effect. This Agreement shall be effective from and after the date first written above upon execution and delivery by the\nParties; provided, however, that if the Merger is not consummated and the Merger Agreement is terminated, this Agreement shall automatically\nterminate concurrently with the termination of the Merger Agreement and shall be of no further force or effect.\n \n[signature page follows]\n_7-\nIN WITNESS WHEREOF, the Parties have executed this Non-Competition, Non-Solicitation and Confidentiality Agreement as of the date\nfirst set forth above.\nSKYWORKS SOLUTIONS, INC.\nBy: /s/David J. Aldrich\nName: David J. Aldrich\nTitle: President and CEO\nSIGNATURE PAGE TO NON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT\nIN WITNESS WHEREOF, the Parties have executed this Non-Competition, Non-Solicitation and Confidentiality Agreement as of the date\nfirst set forth above.\nSTOCKHOLDER\nBy: /s/ Richard K. Williams\nSIGNATURE PAGE TO NON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT EX-10.2 4 dex102.htm NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT\nExhibit 10.2\nEXECUTION COPY\nNON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY\nAGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (the "Agreement"), dated as of\nMay 26, 2011, is made by and between Skyworks Solutions, Inc., a Delaware corporation ("Buyer"), and Richard K. Williams, an individual residing\nin\nthe State of California (the "Stockholder") The Buyer and the Stockholder are each referred to in this Agreement as a "Party." and collectively as\nthe "Parties."\nRECITALS\nA. The Buyer, PowerCo Acquisition Corp., a Delaware corporation (the "Merger Sub"), and Advanced Analogic Technologies, Inc., a\nDelaware corporation (the "Company.") have entered into an Agreement and Plan of Merger, dated as of May 26, 2011 (the "Merger Agreement"),\npursuant to which the Buyer will acquire the Company through a merger of Merger Sub with and into the Company. After giving effect to the\nMerger, the Company will be a wholly-owned subsidiary of the Buyer (the "Merger").\nB. The Company is engaged, either directly or through subsidiaries, in the business of developing, designing, manufacturing, licensing,\nmarketing, selling and distributing power management semiconductors and related software (the "Business"). (For the purpose of clarity: The\nCompany does not engage in business, applications or software unrelated to power management semiconductors (such as microprocessors, digital\nmemory, discrete sensors and biotech). It also does not engage in devices and circuits used in motor drive.)\nC. The parties acknowledge that the relevant market for the Business is worldwide in scope and that intense worldwide competition\nexists for the products and services of the Business.\nD. The Stockholder has a substantial equity interest in the Company and will receive significant cash and stock proceeds and other\nvaluable consideration as a result of the Merger. The Stockholder is a member of the Company's board of directors, an executive officer of the\nCompany and one of the Company's key employees, and acknowledges that he has detailed knowledge of competitively sensitive and important\nConfidential Information and trade secrets of the Company, including information regarding the Company's plans and relationships with customers,\nsuppliers and others. The Stockholder recognizes the Buyer's interest, as a purchaser of the Company, in protecting, among other things, the\nrelationships that the Company and its subsidiaries have with customers and suppliers and the goodwill associated with their ongoing business.\nE. The Parties agree that it is their mutual desire that the entire goodwill of the Company and its business be transferred to the Buyer\nas\npart of the Merger, and they acknowledge that they explicitly considered the value of the goodwill to be transferred in the Merger, and that such\ngoodwill was valued as a component of the consideration to be paid by the Buyer in and for the Merger. The Parties further agree that the Buyer's\nfailure to receive the entire goodwill contemplated by the Merger would have affected the Buyer's willingness to enter into the Merger Agreement or\nreduced the value of the Merger and the Company to the Buyer and the price the Buyer was willing to pay to acquire the Company.\nEXECUTION COPY\nF. The Stockholder acknowledges and agrees that it is his intention to transfer the goodwill reflected in the capital stock of the Company\nthat he owns and that the Stockholder has a material economic interest in the consummation of the Merger. The Stockholder has considered the\neffects of this Agreement, considers them reasonable and, in order to induce the Buyer to enter into the Merger Agreement and consummate the\nMerger, the Stockholder has agreed to enter into and be bound by this Agreement.\nAccordingly, the Parties are executing and delivering this Agreement contemporaneously with the execution and delivery of the Merger\nAgreement, and that the continued effectiveness of this Agreement is a condition to the Buyer's obligations to consummate the Merger.\nNOW, THEREFORE, in consideration of the premises, the mutual covenants and agreements set forth herein, and for other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged, the Buyer and the Stockholder, for themselves and their\nsuccessors and assigns, and intending to be legally bound, hereby agree as follows:\nAGREEMENTS\n1. Definitions. As used in this Agreement, the following terms shall have the following respective meanings.\n(a) "Affiliate" of a Person means any other Person that directly or indirectly through one or more intermediaries, controls, is\ncontrolled by or is under common control with the first Person. For purposes of this definition, "control" of a Person shall mean the possession,\ndirectly\nor\nindirectly, of the power to direct or cause the direction of the management policies of a Person, whether through the ownership of voting\nsecurities, (including, but not limited to, the ownership of ten percent (10%) or more of the voting securities of the Person), by contract, as trustee or\nexecutor or otherwise.\n(b) "Company Customer" means (i) any Person to whom or which the Company or any of its subsidiaries is currently selling\nproducts or providing services or with whom or which the Company or any of its subsidiaries currently has a signed agreement to sell products or\nprovide\nservices, (ii) any Person to whom or which the Company or any of its subsidiaries sold products, provided services or signed an agreement\nto sell products or provide services during the twenty-four (24) month period immediately preceding the Effective Time, (iii) any Person to whom\nor\nwhich the Company or any of its subsidiaries has contacted, solicited or provided a proposal for services, or any Person who has contacted or\nsolicited the Company or any of its subsidiaries regarding products or services of the Company or any of its subsidiaries, during the twenty-four\n(24) month period immediately preceding the Effective Time, (iv) any Person whom the Stockholder knows or has reason to know the Company\nor\nany of its subsidiaries currently plans to solicit as a client for its products or services, or future products or services, or (v) any Affiliate of any Person\ndescribed in clauses (i) through (iv) above.\n-2-\nEXECUTION COPY\n(c) "Confidential Information" means any and all confidential and proprietary information pertaining to the Company or any of\nits subsidiaries, such as proposals, plans, inventions, practices, systems, programs, subscriptions, strategies, formulas, processes, methods,\ntechniques, research, records, suppliers, sources, customer lists, billing information, other forms of business information, and trade secrets of every\nkind and character, whether or not they constitute a trade secret under applicable law. The term Confidential Information shall not include any\ninformation in the public domain or information that is rightfully in the possession of a third party and is not subject to a confidentiality obligation,\nprovided that such information has not entered the public domain or come into possession of a third party due to the violation of any contractual,\nfiduciary or other legal obligation of the Stockholder or any other person or entity.\n(d) "Person" means an individual, corporation, limited liability company, partnership, limited partnership, association, estate,\ntrust, unincorporated organization, governmental entity or authority (including, but not limited to, any municipal, county or state entity, board,\nauthority, agency or similar organization), or any other entity or organization.\n(e) "Restricted Period" means the period from and after the date hereof and continuing until the twenty-four (24) month\nanniversary of the Effective Time (as such term is defined in the Merger Agreement) of the Merger.\n2. Non-Competition. As an inducement for the Buyer to enter into the Merger Agreement and to consummate the Merger, and in\nconnection with the sale of the Stockholder's equity interest in the Company pursuant to the Merger, the Stockholder agrees that during the\nRestricted Period, the Stockholder shall not, anywhere in the world, directly or indirectly engage, without the express prior written consent of the\nBuyer after the date hereof, in any business or activity in competition with the Business, whether as an employee, consultant, partner, principal,\nagent, representative, equity holder or in any other individual, corporate or representative capacity (without limitation by specific enumeration of the\nforegoing), or render any services or provide any advice to any Person in competition (or seeking to compete, directly or indirectly) with the\nBusiness (a "Competing Business"). Nothing in this Section 2 shall prohibit the Stockholder from (i) acquiring up to two percent (2%) of any class\nof outstanding equity security of any competing business whose equity securities are regularly traded on a national securities exchange or The\nNasdaq Market, (ii) making or holding a passive investment in a venture fund, angel fund, or similar investment vehicle that invests in a competing\nbusiness representing less than two percent (2%) of the total investment of such venture fund, angel fund, or similar investment or (iii) making or\nholding a passive investment in a private company engaged in a competing business representing less than two percent (2%) of the total investment\nof such private company; provided, that if the Stockholder is then an employee of the Buyer, the Company or any of their respective subsidiaries,\nsuch\ninvestment shall be permitted only if (i) such investment does not interfere with the Stockholder's duties and obligations to the Buyer, the\nCompany and their respective subsidiaries, as determined in good faith by the Board of Directors of the Company (prior to the Effective Time) or the\nBuyer (following the Effective Time) in its sole discretion and (ii) such shares shall not constitute more than five percent (5%) of the Stockholder's\nnet worth.\n-3-\nEXECUTION COPY\n3. Non-Solicitation of Employees. During the Restricted Period:\n(a) The Stockholder shall not directly or indirectly solicit (or assist, participate in or promote the solicitation of) any individual\nwho is then employed by the Buyer, the Company or any of their respective direct or indirect subsidiaries to leave such employment. The Parties\nhereto agree that the placing of general advertisements in newspapers, magazines or electronic media, or other communication targeted to a\ngeneralized audience, in either case which are not specifically aimed at the Buyer, the Company, or any of their respective direct or indirect\nsubsidiaries shall not, in itself, constitute a breach of this Section 3.\n(b) The Stockholder shall not disclose any intent that he may form to terminate his employment with the Buyer, the Company or\nany of their respective direct or indirect subsidiaries to any employee of the Buyer, the Company or any of their respective subsidiaries prior to the\nearliest to occur of either the date on which such employment terminates or the date on which the Buyer or the Company provides notice to\nemployees generally of such termination.\n(c) If a former employee of the Company or any of its subsidiaries contacts the Stockholder about (i) any business matter\ninvolving the Buyer, the Company or any of their respective subsidiaries, or (ii) any matter involving the former employee's new business\n(including, but not limited to, prospective employment with such new business), the Stockholder shall inform the former employee that he cannot\ndiscuss the matter further.\n4. Non-Solicitation of Company. Customers. During the Restricted Period:\n(a) The Stockholder shall not directly or indirectly solicit, divert or take away, or assist in or attempt to solicit, divert or take\naway, the business or patronage of any Company Customer.\n(b) If a Company Customer contacts the Stockholder concerning the possibility of a discontinuation or reduction of the Company\nCustomer's business with the Buyer, the Company or any of their respective subsidiaries, the Stockholder shall inform such Company Customer that\nhe cannot discuss the matter further without informing the Buyer and the Company.\n(c) The Stockholder shall not disclose any intent that he may form to terminate his employment with the Buyer, the Company or\nany of their respective subsidiaries to any Company Customer prior to the termination of such employment or the date, if earlier, on which the Buyer\nor the Company publicly discloses such termination.\n5. Confidentiality..\n(a) The Stockholder acknowledges that Confidential Information has been and will continue to be of central importance to the\nbusiness of the Company and its subsidiaries and that disclosure of it to or its use by others could cause substantial loss to the Company and its\nsubsidiaries and, following the Effective Time, to the Buyer and its subsidiaries. Accordingly, from and after the date of this Agreement, the\nStockholder shall maintain the confidentiality of all Confidential Information and shall not use or disclose any\n-4-\nEXECUTION COPY\nConfidential Information to any Person, for any reason or purpose, except (i) as reasonably required to perform his duties to the Company and its\nsubsidiaries as a director, officer and/or employee thereof (or his duties to the Buyer and its subsidiaries, as the case may be, following the Effective\nTime), and for their sole benefit, or (ii) as required by law as described in Section 5(c) below.\n(b) The obligations contained in Section 5(a) shall not apply to any information which has: (i) become publicly known and\nmade\ngenerally available through no wrongful act of the Stockholder or of others who were under confidentiality obligations as to the item or items\ninvolved, or (ii) been independently acquired or developed by the Stockholder outside the scope of his duties at the Company and its subsidiaries or\nany predecessor of the Company.\n(c) If the Stockholder becomes legally obligated (by deposition, interrogatory, request for documents, subpoena, civil\ninvestigation, demand or similar process) to disclose any Confidential Information, the Stockholder shall provide the Buyer and the Company with\nprompt written notice of such requirement so that the Buyer or the Company, as the case may be, may seek a protective order or other appropriate\nrelief. If a protective order or other remedy is not obtained by the Buyer or the Company, the Stockholder may furnish only that portion of\nConfidential Information which is required pursuant to the legal process, and (at the Buyer's or the Company's expense, as the case may be) shall\nexercise reasonable efforts to obtain reliable assurances that confidential treatment will be accorded such Confidential Information. If either during\nor\nafter his employment with the Buyer, the Company or any of their respective subsidiaries, the Stockholder receives a subpoena or other inquiry\nrelated to a regulatory, civil or criminal proceeding concerning any matter which may involve the Buyer, the Company or any of their respective\nsubsidiaries, whether or not such matter could result in the Stockholder having to disclose any Confidential Information, the Stockholder shall give\nprompt notice to the Buyer or the Company, as the case may be, of the subpoena or inquiry and the matter covered thereby and any information\nwhich the Stockholder is required to produce in connection therewith.\n6. Equitable Remedies. The Buyer and the Stockholder confirm that the restrictions contained in this Agreement are, in view of the\nnature of the business of the Company, reasonable and necessary to protect the legitimate interests of the Buyer and that any breach of any material\nprovision in this Agreement will result in irreparable injury to the Buyer. Therefore, the Stockholder hereby agrees that, in the event of any breach or\nthreatened breach of any material term or condition of this Agreement by the Stockholder, the Buyer's remedies at law will be inadequate and, in any\nsuch event, the Buyer shall be entitled to commence an action for preliminary and permanent injunctive relief and other equitable and monetary\nrelief (including attorneys' fees) in any court of competent jurisdiction, and that if such relief is granted the Buyer shall not be required to post any\nbond.\n7. Miscellaneous.\n7.1 Governing Law. This Agreement shall be interpreted and enforced pursuant to the laws of the State of California, without\ngiving any effect to the conflict of laws rules or principles of any jurisdiction\n-5-\nEXECUTION COPY\n7.2 Dispute Resolution; Waiver of Jury Trial.\n(a) All disputes, claims or controversies arising out of or in connection with this Agreement shall be subject to the jurisdiction of\nthe courts of the State of California located in Santa Clara County, California and the United States District Court for the Northern District of\nCalifornia, and each of the Company and the Stockholder hereby waives any objection to the laying of venue in any such court. Notwithstanding the\nprevious sentence and provided both Parties consent, the Parties may, at any time after the inception of a dispute, claim or controversy arising out of\nor in connection with this Agreement, submit such dispute, claim or controversy to binding arbitration under the rules of the American Arbitration\nAssociation in effect at the inception of such dispute, claim or controversy. The Parties shall cooperate fully with each other so that any such dispute,\nclaim or controversy submitted to binding arbitration pursuant to this Section 7.2 may be resolved as expeditiously as possible.\n(b) The prevailing Party in a proceeding commenced with respect to any dispute, claim or controversy arising out of or in\nconnection with this Agreement shall be entitled to recover, in addition to any other relief awarded, its reasonable costs and expenses, including\nattorneys' and expert witness fees and disbursements, of preparing for and participating in any such proceeding.\n(c) The Buyer and the Stockholder each hereby waives the right to trial by jury in all proceedings commenced with respect to any\ndisputes, claims or controversies arising out of or in connection with this Agreement.\n(d) STOCKHOLDER HAS READ AND UNDERSTANDS THIS SECTION 7.2 WHICH DISCUSSES THE WAIVER OF\nSTOCKHOLDER'S RIGHT TO A JURY TRIAL. STOCKHOLDER UNDERSTANDS THAT BY SIGNING THIS AGREEMENT,\nSTOCKHOLDER IS WAIVING HIS RIGHT TO A JURY TRIAL IN ALL DISPUTES, CLAIMS OR CONTROVERSIES RELATING TO ANY\nASPECT OF THIS AGREEMENT.\n7.3 Amendments. This Agreement may not be changed, amended or modified orally. This Agreement may be changed, amended\nor modified only by an agreement in writing signed by the Party against whom enforcement of any such waiver, change, amendment, modification or\ndischarge may be sought.\n7.4 Assignment. This Agreement shall be binding upon and inure to the benefit of the executors, administrators, heirs, successors,\nand assigns of the Parties; provided, however, that this Agreement shall not be assignable by the Stockholder. The Stockholder agrees that, upon\nrequest therefor, he will, in writing, acknowledge and consent to any such assignment of this Agreement.\n7.5 Waiver. Failure or delay on the part of either Party hereto to enforce any right, power or privilege hereunder shall not be\ndeemed to constitute a waiver thereof. A waiver by one Party of a breach of any promise by the other Party contained herein shall not operate as or\nbe construed to constitute a waiver of any subsequent breach of such promise by such other Party.\n-6-\nEXECUTION COPY\n7.6 Headings. The headings of the sections and paragraphs contained in this Agreement are for reference purposes only and shall\nnot in any way affect the meaning or interpretation of any provision of this Agreement.\n7.7 Construction. The language used in this Agreement shall be deemed to be the language chosen by the Parties hereto to\nexpress their mutual intent, and no rule of strict construction, for or against either Party, shall be applied. Capitalized terms used in this Agreement\nwithout definition shall have the respective meaning ascribed to them in the Merger Agreement.\n7.8 Counterparts. This Agreement may be executed in counterparts, none of which need contain the signature of more than\none\nParty hereto, each of which shall be deemed to be an original, and all of which together shall constitute a single agreement.\n7.9 Acknowledgement. The Stockholder represents and warrants that (a) he has carefully read and fully understands the terms of\nthis Agreement; (b) he has signed it voluntarily and with full knowledge of its contents, its legal consequences, and the rights and obligations of the\nParties; and (c) that the Stockholder has been advised to and has had a reasonable opportunity to review this Agreement and consult with the attorney\nor other personal counsel of the Stockholder's choosing before entering into this Agreement. The Stockholder expressly agrees that he has no\nexpectations or understandings contrary to the Agreement and no usage of trade or regular practice in the industry shall be used to modify this\nAgreement. The Stockholder acknowledges that this Agreement constitutes the entire agreement between the Stockholder and the Company with\nrespect to the subject matter hereof and this Agreement supersedes any and all prior or contemporaneous written or oral agreements, representations,\nor any other documents or understandings; provided, however, that nothing herein supersedes the Stockholder Agreement of even date herewith to\nwhich the Stockholder is a party.\n7.10 Effect. This Agreement shall be effective from and after the date first written above upon execution and delivery by the\nParties; provided, however, that if the Merger is not consummated and the Merger Agreement is terminated, this Agreement shall automatically\nterminate concurrently with the termination of the Merger Agreement and shall be of no further force or effect.\n[signature page follows]\n-7-\nIN WITNESS WHEREOF, the Parties have executed this Non-Competition, Non-Solicitation and Confidentiality Agreement as of the date\nfirst set forth above.\nSKYWORKS SOLUTIONS, INC.\nBy: /s/ David J. Aldrich\nName: David J. Aldrich\nTitle: President and CEO\nSIGNATURE PAGE TO NON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT\nIN WITNESS WHEREOF, the Parties have executed this Non-Competition, Non-Solicitation and Confidentiality Agreement as of the date\nfirst set forth above.\nSTOCKHOLDER\nBy: /s/ Richard K. Williams\nSIGNATURE PAGE TO NON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT EX-10.2 4 dex102.htm NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT\nExhibit 10.2\nEXECUTION COPY\nNON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY\nAGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (the “Agreement”), dated as of\nMay 26, 2011, is made by and between Skyworks Solutions, Inc., a Delaware corporation (“Buyer”), and Richard K. Williams, an individual residing\nin the State of California (the “Stockholder”). The Buyer and the Stockholder are each referred to in this Agreement as a “Party” and collectively as\nthe “Parties.”\nRECITALS\nA. The Buyer, PowerCo Acquisition Corp., a Delaware corporation (the “Merger Sub”), and Advanced Analogic Technologies, Inc., a\nDelaware corporation (the “Company”) have entered into an Agreement and Plan of Merger, dated as of May 26, 2011 (the “Merger Agreement”),\npursuant to which the Buyer will acquire the Company through a merger of Merger Sub with and into the Company. After giving effect to the\nMerger, the Company will be a wholly-owned subsidiary of the Buyer (the “Merger”).\nB. The Company is engaged, either directly or through subsidiaries, in the business of developing, designing, manufacturing, licensing,\nmarketing, selling and distributing power management semiconductors and related software (the “Business”). (For the purpose of clarity: The\nCompany does not engage in business, applications or software unrelated to power management semiconductors (such as microprocessors, digital\nmemory, discrete sensors and biotech). It also does not engage in devices and circuits used in motor drive.)\nC. The parties acknowledge that the relevant market for the Business is worldwide in scope and that intense worldwide competition\nexists for the products and services of the Business.\nD. The Stockholder has a substantial equity interest in the Company and will receive significant cash and stock proceeds and other\nvaluable consideration as a result of the Merger. The Stockholder is a member of the Company’s board of directors, an executive officer of the\nCompany and one of the Company’s key employees, and acknowledges that he has detailed knowledge of competitively sensitive and important\nConfidential Information and trade secrets of the Company, including information regarding the Company’s plans and relationships with customers,\nsuppliers and others. The Stockholder recognizes the Buyer’s interest, as a purchaser of the Company, in protecting, among other things, the\nrelationships that the Company and its subsidiaries have with customers and suppliers and the goodwill associated with their ongoing business.\nE. The Parties agree that it is their mutual desire that the entire goodwill of the Company and its business be transferred to the Buyer as\npart of the Merger, and they acknowledge that they explicitly considered the value of the goodwill to be transferred in the Merger, and that such\ngoodwill was valued as a component of the consideration to be paid by the Buyer in and for the Merger. The Parties further agree that the Buyer’s\nfailure to receive the entire goodwill contemplated by the Merger would have affected the Buyer’s willingness to enter into the Merger Agreement or\nreduced the value of the Merger and the Company to the Buyer and the price the Buyer was willing to pay to acquire the Company.\nEXECUTION COPY\nF. The Stockholder acknowledges and agrees that it is his intention to transfer the goodwill reflected in the capital stock of the Company\nthat he owns and that the Stockholder has a material economic interest in the consummation of the Merger. The Stockholder has considered the\neffects of this Agreement, considers them reasonable and, in order to induce the Buyer to enter into the Merger Agreement and consummate the\nMerger, the Stockholder has agreed to enter into and be bound by this Agreement.\nAccordingly, the Parties are executing and delivering this Agreement contemporaneously with the execution and delivery of the Merger\nAgreement, and that the continued effectiveness of this Agreement is a condition to the Buyer’s obligations to consummate the Merger.\nNOW, THEREFORE, in consideration of the premises, the mutual covenants and agreements set forth herein, and for other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged, the Buyer and the Stockholder, for themselves and their\nsuccessors and assigns, and intending to be legally bound, hereby agree as follows:\nAGREEMENTS\n1. Definitions. As used in this Agreement, the following terms shall have the following respective meanings.\n(a) “Affiliate” of a Person means any other Person that directly or indirectly through one or more intermediaries, controls, is\ncontrolled by or is under common control with the first Person. For purposes of this definition, “control” of a Person shall mean the possession,\ndirectly or indirectly, of the power to direct or cause the direction of the management policies of a Person, whether through the ownership of voting\nsecurities, (including, but not limited to, the ownership of ten percent (10%) or more of the voting securities of the Person), by contract, as trustee or\nexecutor or otherwise.\n(b) “Company Customer” means (i) any Person to whom or which the Company or any of its subsidiaries is currently selling\nproducts or providing services or with whom or which the Company or any of its subsidiaries currently has a signed agreement to sell products or\nprovide services, (ii) any Person to whom or which the Company or any of its subsidiaries sold products, provided services or signed an agreement\nto sell products or provide services during the twenty-four (24) month period immediately preceding the Effective Time, (iii) any Person to whom or\nwhich the Company or any of its subsidiaries has contacted, solicited or provided a proposal for services, or any Person who has contacted or\nsolicited the Company or any of its subsidiaries regarding products or services of the Company or any of its subsidiaries, during the twenty-four\n(24) month period immediately preceding the Effective Time, (iv) any Person whom the Stockholder knows or has reason to know the Company or\nany of its subsidiaries currently plans to solicit as a client for its products or services, or future products or services, or (v) any Affiliate of any Person\ndescribed in clauses (i) through (iv) above.\n-2-\nEXECUTION COPY\n(c) “Confidential Information” means any and all confidential and proprietary information pertaining to the Company or any of\nits subsidiaries, such as proposals, plans, inventions, practices, systems, programs, subscriptions, strategies, formulas, processes, methods,\ntechniques, research, records, suppliers, sources, customer lists, billing information, other forms of business information, and trade secrets of every\nkind and character, whether or not they constitute a trade secret under applicable law. The term Confidential Information shall not include any\ninformation in the public domain or information that is rightfully in the possession of a third party and is not subject to a confidentiality obligation,\nprovided that such information has not entered the public domain or come into possession of a third party due to the violation of any contractual,\nfiduciary or other legal obligation of the Stockholder or any other person or entity.\n(d) “Person” means an individual, corporation, limited liability company, partnership, limited partnership, association, estate,\ntrust, unincorporated organization, governmental entity or authority (including, but not limited to, any municipal, county or state entity, board,\nauthority, agency or similar organization), or any other entity or organization.\n(e) “Restricted Period” means the period from and after the date hereof and continuing until the twenty-four (24) month\nanniversary of the Effective Time (as such term is defined in the Merger Agreement) of the Merger.\n2. Non-Competition. As an inducement for the Buyer to enter into the Merger Agreement and to consummate the Merger, and in\nconnection with the sale of the Stockholder’s equity interest in the Company pursuant to the Merger, the Stockholder agrees that during the\nRestricted Period, the Stockholder shall not, anywhere in the world, directly or indirectly engage, without the express prior written consent of the\nBuyer after the date hereof, in any business or activity in competition with the Business, whether as an employee, consultant, partner, principal,\nagent, representative, equity holder or in any other individual, corporate or representative capacity (without limitation by specific enumeration of the\nforegoing), or render any services or provide any advice to any Person in competition (or seeking to compete, directly or indirectly) with the\nBusiness (a “Competing Business”). Nothing in this Section 2 shall prohibit the Stockholder from (i) acquiring up to two percent (2%) of any class\nof outstanding equity security of any competing business whose equity securities are regularly traded on a national securities exchange or The\nNasdaq Market, (ii) making or holding a passive investment in a venture fund, angel fund, or similar investment vehicle that invests in a competing\nbusiness representing less than two percent (2%) of the total investment of such venture fund, angel fund, or similar investment or (iii) making or\nholding a passive investment in a private company engaged in a competing business representing less than two percent (2%) of the total investment\nof such private company; provided, that if the Stockholder is then an employee of the Buyer, the Company or any of their respective subsidiaries,\nsuch investment shall be permitted only if (i) such investment does not interfere with the Stockholder’s duties and obligations to the Buyer, the\nCompany and their respective subsidiaries, as determined in good faith by the Board of Directors of the Company (prior to the Effective Time) or the\nBuyer (following the Effective Time) in its sole discretion and (ii) such shares shall not constitute more than five percent (5%) of the Stockholder’s\nnet worth.\n-3-\nEXECUTION COPY\n3. Non-Solicitation of Employees. During the Restricted Period:\n(a) The Stockholder shall not directly or indirectly solicit (or assist, participate in or promote the solicitation of) any individual\nwho is then employed by the Buyer, the Company or any of their respective direct or indirect subsidiaries to leave such employment. The Parties\nhereto agree that the placing of general advertisements in newspapers, magazines or electronic media, or other communication targeted to a\ngeneralized audience, in either case which are not specifically aimed at the Buyer, the Company, or any of their respective direct or indirect\nsubsidiaries shall not, in itself, constitute a breach of this Section 3.\n(b) The Stockholder shall not disclose any intent that he may form to terminate his employment with the Buyer, the Company or\nany of their respective direct or indirect subsidiaries to any employee of the Buyer, the Company or any of their respective subsidiaries prior to the\nearliest to occur of either the date on which such employment terminates or the date on which the Buyer or the Company provides notice to\nemployees generally of such termination.\n(c) If a former employee of the Company or any of its subsidiaries contacts the Stockholder about (i) any business matter\ninvolving the Buyer, the Company or any of their respective subsidiaries, or (ii) any matter involving the former employee’s new business\n(including, but not limited to, prospective employment with such new business), the Stockholder shall inform the former employee that he cannot\ndiscuss the matter further.\n4. Non-Solicitation of Company Customers. During the Restricted Period:\n(a) The Stockholder shall not directly or indirectly solicit, divert or take away, or assist in or attempt to solicit, divert or take\naway, the business or patronage of any Company Customer.\n(b) If a Company Customer contacts the Stockholder concerning the possibility of a discontinuation or reduction of the Company\nCustomer’s business with the Buyer, the Company or any of their respective subsidiaries, the Stockholder shall inform such Company Customer that\nhe cannot discuss the matter further without informing the Buyer and the Company.\n(c) The Stockholder shall not disclose any intent that he may form to terminate his employment with the Buyer, the Company or\nany of their respective subsidiaries to any Company Customer prior to the termination of such employment or the date, if earlier, on which the Buyer\nor the Company publicly discloses such termination.\n5. Confidentiality.\n(a) The Stockholder acknowledges that Confidential Information has been and will continue to be of central importance to the\nbusiness of the Company and its subsidiaries and that disclosure of it to or its use by others could cause substantial loss to the Company and its\nsubsidiaries and, following the Effective Time, to the Buyer and its subsidiaries. Accordingly, from and after the date of this Agreement, the\nStockholder shall maintain the confidentiality of all Confidential Information and shall not use or disclose any\n-4-\nEXECUTION COPY\nConfidential Information to any Person, for any reason or purpose, except (i) as reasonably required to perform his duties to the Company and its\nsubsidiaries as a director, officer and/or employee thereof (or his duties to the Buyer and its subsidiaries, as the case may be, following the Effective\nTime), and for their sole benefit, or (ii) as required by law as described in Section 5(c) below.\n(b) The obligations contained in Section 5(a) shall not apply to any information which has: (i) become publicly known and made\ngenerally available through no wrongful act of the Stockholder or of others who were under confidentiality obligations as to the item or items\ninvolved, or (ii) been independently acquired or developed by the Stockholder outside the scope of his duties at the Company and its subsidiaries or\nany predecessor of the Company.\n(c) If the Stockholder becomes legally obligated (by deposition, interrogatory, request for documents, subpoena, civil\ninvestigation, demand or similar process) to disclose any Confidential Information, the Stockholder shall provide the Buyer and the Company with\nprompt written notice of such requirement so that the Buyer or the Company, as the case may be, may seek a protective order or other appropriate\nrelief. If a protective order or other remedy is not obtained by the Buyer or the Company, the Stockholder may furnish only that portion of\nConfidential Information which is required pursuant to the legal process, and (at the Buyer’s or the Company’s expense, as the case may be) shall\nexercise reasonable efforts to obtain reliable assurances that confidential treatment will be accorded such Confidential Information. If either during\nor after his employment with the Buyer, the Company or any of their respective subsidiaries, the Stockholder receives a subpoena or other inquiry\nrelated to a regulatory, civil or criminal proceeding concerning any matter which may involve the Buyer, the Company or any of their respective\nsubsidiaries, whether or not such matter could result in the Stockholder having to disclose any Confidential Information, the Stockholder shall give\nprompt notice to the Buyer or the Company, as the case may be, of the subpoena or inquiry and the matter covered thereby and any information\nwhich the Stockholder is required to produce in connection therewith.\n6. Equitable Remedies. The Buyer and the Stockholder confirm that the restrictions contained in this Agreement are, in view of the\nnature of the business of the Company, reasonable and necessary to protect the legitimate interests of the Buyer and that any breach of any material\nprovision in this Agreement will result in irreparable injury to the Buyer. Therefore, the Stockholder hereby agrees that, in the event of any breach or\nthreatened breach of any material term or condition of this Agreement by the Stockholder, the Buyer’s remedies at law will be inadequate and, in any\nsuch event, the Buyer shall be entitled to commence an action for preliminary and permanent injunctive relief and other equitable and monetary\nrelief (including attorneys’ fees) in any court of competent jurisdiction, and that if such relief is granted the Buyer shall not be required to post any\nbond.\n7. Miscellaneous.\n7.1 Governing Law. This Agreement shall be interpreted and enforced pursuant to the laws of the State of California, without\ngiving any effect to the conflict of laws rules or principles of any jurisdiction.\n-5-\nEXECUTION COPY\n7.2 Dispute Resolution; Waiver of Jury Trial.\n(a) All disputes, claims or controversies arising out of or in connection with this Agreement shall be subject to the jurisdiction of\nthe courts of the State of California located in Santa Clara County, California and the United States District Court for the Northern District of\nCalifornia, and each of the Company and the Stockholder hereby waives any objection to the laying of venue in any such court. Notwithstanding the\nprevious sentence and provided both Parties consent, the Parties may, at any time after the inception of a dispute, claim or controversy arising out of\nor in connection with this Agreement, submit such dispute, claim or controversy to binding arbitration under the rules of the American Arbitration\nAssociation in effect at the inception of such dispute, claim or controversy. The Parties shall cooperate fully with each other so that any such dispute,\nclaim or controversy submitted to binding arbitration pursuant to this Section 7.2 may be resolved as expeditiously as possible.\n(b) The prevailing Party in a proceeding commenced with respect to any dispute, claim or controversy arising out of or in\nconnection with this Agreement shall be entitled to recover, in addition to any other relief awarded, its reasonable costs and expenses, including\nattorneys’ and expert witness fees and disbursements, of preparing for and participating in any such proceeding.\n(c) The Buyer and the Stockholder each hereby waives the right to trial by jury in all proceedings commenced with respect to any\ndisputes, claims or controversies arising out of or in connection with this Agreement.\n(d) STOCKHOLDER HAS READ AND UNDERSTANDS THIS SECTION 7.2 WHICH DISCUSSES THE WAIVER OF\nSTOCKHOLDER’S RIGHT TO A JURY TRIAL. STOCKHOLDER UNDERSTANDS THAT BY SIGNING THIS AGREEMENT,\nSTOCKHOLDER IS WAIVING HIS RIGHT TO A JURY TRIAL IN ALL DISPUTES, CLAIMS OR CONTROVERSIES RELATING TO ANY\nASPECT OF THIS AGREEMENT.\n7.3 Amendments. This Agreement may not be changed, amended or modified orally. This Agreement may be changed, amended\nor modified only by an agreement in writing signed by the Party against whom enforcement of any such waiver, change, amendment, modification or\ndischarge may be sought.\n7.4 Assignment. This Agreement shall be binding upon and inure to the benefit of the executors, administrators, heirs, successors,\nand assigns of the Parties; provided, however, that this Agreement shall not be assignable by the Stockholder. The Stockholder agrees that, upon\nrequest therefor, he will, in writing, acknowledge and consent to any such assignment of this Agreement.\n7.5 Waiver. Failure or delay on the part of either Party hereto to enforce any right, power or privilege hereunder shall not be\ndeemed to constitute a waiver thereof. A waiver by one Party of a breach of any promise by the other Party contained herein shall not operate as or\nbe construed to constitute a waiver of any subsequent breach of such promise by such other Party.\n-6-\nEXECUTION COPY\n7.6 Headings. The headings of the sections and paragraphs contained in this Agreement are for reference purposes only and shall\nnot in any way affect the meaning or interpretation of any provision of this Agreement.\n7.7 Construction. The language used in this Agreement shall be deemed to be the language chosen by the Parties hereto to\nexpress their mutual intent, and no rule of strict construction, for or against either Party, shall be applied. Capitalized terms used in this Agreement\nwithout definition shall have the respective meaning ascribed to them in the Merger Agreement.\n7.8 Counterparts. This Agreement may be executed in counterparts, none of which need contain the signature of more than one\nParty hereto, each of which shall be deemed to be an original, and all of which together shall constitute a single agreement.\n7.9 Acknowledgement. The Stockholder represents and warrants that (a) he has carefully read and fully understands the terms of\nthis Agreement; (b) he has signed it voluntarily and with full knowledge of its contents, its legal consequences, and the rights and obligations of the\nParties; and (c) that the Stockholder has been advised to and has had a reasonable opportunity to review this Agreement and consult with the attorney\nor other personal counsel of the Stockholder’s choosing before entering into this Agreement. The Stockholder expressly agrees that he has no\nexpectations or understandings contrary to the Agreement and no usage of trade or regular practice in the industry shall be used to modify this\nAgreement. The Stockholder acknowledges that this Agreement constitutes the entire agreement between the Stockholder and the Company with\nrespect to the subject matter hereof and this Agreement supersedes any and all prior or contemporaneous written or oral agreements, representations,\nor any other documents or understandings; provided, however, that nothing herein supersedes the Stockholder Agreement of even date herewith to\nwhich the Stockholder is a party.\n7.10 Effect. This Agreement shall be effective from and after the date first written above upon execution and delivery by the\nParties; provided, however, that if the Merger is not consummated and the Merger Agreement is terminated, this Agreement shall automatically\nterminate concurrently with the termination of the Merger Agreement and shall be of no further force or effect.\n[signature page follows]\n-7-\nIN WITNESS WHEREOF, the Parties have executed this Non-Competition, Non-Solicitation and Confidentiality Agreement as of the date\nfirst set forth above.\nSKYWORKS SOLUTIONS, INC.\nBy: /s/ David J. Aldrich\nName: David J. Aldrich\nTitle: President and CEO\nSIGNATURE PAGE TO NON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT\nIN WITNESS WHEREOF, the Parties have executed this Non-Competition, Non-Solicitation and Confidentiality Agreement as of the date\nfirst set forth above.\nSTOCKHOLDER\nBy: /s/ Richard K. Williams\nSIGNATURE PAGE TO NON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT e31676b3fba3d474985f08fef9bfaf03.pdf effective_date jurisdiction party term EXHIBIT B\nTO:\nTHE MICROSOFT OPERATIONS DIGITAL DISTRIBUTION AGREEMENT\nBETWEEN: MICROSOFT CORPORATION AND DIGITAL RIVER, INC.\nDATED:\nSeptember 1, 2006\nNAME\nNon-Disclosure Agreement\nMICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT\n(STANDARD RECIPROCAL)\nThis Non-Disclosure Agreement (the “Agreement”) is made and entered into as of the later of the two signature dates below by and between\nMICROSOFT CORPORATION, a Washington corporation (“Microsoft”), and Digital River, Inc., a Delaware corporation (“Company”).\nIN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS CONTAINED IN THIS AGREEMENT AND THE MUTUAL\nDISCLOSURE OF CONFIDENTIAL INFORMATION, THE PARTIES HERETO AGREE AS FOLLOWS:\n1. Definition of Confidential Information and Exclusions.\n(a) “Confidential Information” means nonpublic information that a party to this Agreement (“Disclosing Party”) designates as being\nconfidential to the party that receives such information (“Receiving Party”) or which, under the circumstances surrounding disclosure ought to be\ntreated as confidential by the Receiving Party. “Confidential Information” includes, without limitation, information in tangible or intangible form\nrelating to and/or including released or unreleased Disclosing Party software or hardware products, the marketing or promotion of any Disclosing\nParty product, Disclosing Party’s business policies or practices, and information received from others that Disclosing Party is obligated to treat as\nconfidential. Except as otherwise indicated in this Agreement, the term Disclosing Party” also includes all Affiliates of the Disclosing Party and,\nexcept as otherwise indicated, the term “Receiving Party” also includes all Affiliates of the Receiving Party. And “Affiliate” means any person,\npartnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or\nindirectly, control, are controlled by, or are under common control with a party.\n(b) Confidential Information shall not include any information, however designated, that: (1) is or subsequently becomes publicly available\nwithout Receiving Party’s breach of any obligation owed Disclosing Party; (ii) became known to Receiving Party prior to Disclosing Party’s\ndisclosure of such information to Receiving Party pursuant to the terms of this Agreement; (iii) became known to Receiving Party from a source\nother than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party; (iv) is independently developed\nby Receiving Party.\n2. Obligations Regarding Confidential Information\n(a) Receiving Party shall:\n(i) Refrain from disclosing any Confidential Information of the Disclosing Party to third parties for five (5) years following the\ndate that Disclosing Party first discloses such Confidential Information to Receiving Party, except as expressly provided in\nSections 2(b) and 2(c) of this Agreement,\n(ii) Take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, but\nno less than reasonable care, to keep confidential the Confidential Information of the Disclosing Party;\n(iii) Refrain from disclosing, reproducing, summarizing and/or distributing Confidential Information of the Disclosing Party except\nin pursuance of Receiving Party’s business relationship with Disclosing Party, and only as otherwise provided hereunder; and\n(iv) Refrain from reverse engineering, decompiling or disassembling any software code and/or pre- release hardware devices\ndisclosed by Disclosing Party to Receiving Party under the terms of this Agreement, except as expressly permitted by\napplicable law.\n*\nConfidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to\nthe confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the\nSecurities and Exchange Commission.\n31\n(b) Receiving Party may disclose Confidential Information of Disclosing Party in accordance with a judicial or other governmental order,\nprovided that Receiving Party either (i) gives the undersigned Disclosing Party reasonable notice prior to such disclosure to allow Disclosing\nParty a reasonable opportunity to seek a protective order or equivalent, or (ii) obtains written assurance from the applicable judicial or\ngovernmental entity that it will afford the Confidential Information the highest level of protection afforded under applicable law or regulation.\nNotwithstanding the foregoing, the Receiving Party shall not disclose any computer source code that contains Confidential Information of the\nDisclosing Party in accordance with a judicial or other governmental order unless it complies with the requirement set forth in sub-section (1) of\nthis Section 2(b).\n(c) The undersigned Receiving Party may disclose Confidential Information only to Receiving Party’s employees and consultants on a\nneed-to-know basis. The undersigned Receiving Party will have executed or shall execute appropriate written agreements with third parties\nsufficient to enable Receiving Party to enforce all the provisions of this Agreement\n(d) Receiving Party shall notify the undersigned Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nConfidential Information or any other breach of this Agreement by Receiving Party and its employees and consultants, and will cooperate with\nDisclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further\nunauthorized use or disclosure.\n(e) Receiving Party shall, at Disclosing Party’s request, return all originals, copies, reproductions and summaries of Confidential\nInformation and all other tangible materials and devices provided to the Receiving Party as Confidential Information, or at Disclosing Party’s\noption, certify destruction of the same.\n3. Remedies\nThe parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and\nthat Disclosing Party shall be entitled, without waiving any other tights or remedies, to such injunctive or equitable relief as may be deemed\nproper by a court of competent jurisdiction.\n4. Miscellaneous\n(a) All Confidential Information is and shall remain the property of Disclosing Party. By disclosing Confidential Information to Receiving\nParty, Disclosing Party does not grant any express or implied right to Receiving Party to or under any patents, copyrights, trademarks, or trade\nsecret information except as otherwise provided herein. Disclosing Party reserves without prejudice the ability to protect its rights under any such\npatents, copyrights, trademarks, or trade secrets except as otherwise provided herein.\n(b) In the event that the Disclosing Party provides any computer software and/or hardware to the Receiving Party as Confidential Information\nunder the terms of this Agreement, such computer software and/or hardware may only be used by the Receiving Party for evaluation and\nproviding Feedback (as defined in Section 5 of this Agreement) to the Disclosing Party. Unless otherwise agreed by the Disclosing Party and the\nReceiving Party, all such computer software and/or hardware is provided “AS IS” without warranty of any kind, and Receiving Party agrees that\nneither Disclosing Party nor its suppliers shall be liable for any damages whatsoever arising from or relating to Receiving Party’s use or inability\nto use such software and/or hardware.\n(c) The parties agree to comply with all applicable international and national laws that apply to (i) any Confidential Information, or (ii) any\nproduct (or any part thereof), process or service that is the direct product of the Confidential Information, including the U.S. Export\nAdministration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional\ninformation on exporting Microsoft products, see http://www.microsoft.com/exporting/.\n(d) The terms of confidentiality under this Agreement shall not be construed to limit either the Disclosing Party or the Receiving Party’s right\nto independently develop or acquire products without use of the other party’s Confidential Information.\n(e) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. It shall not be modified\nexcept by a written agreement dated subsequent to the date of this Agreement and signed by both parties. None of the provisions of this\nAgreement shall be deemed to have been waived by any act or acquiescence on the part of Disclosing Party, the Receiving Party, their agents, or\nemployees, but only by an instrument\n*\nConfidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to\nthe confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the\nSecurities and Exchange Commission.\n32\nin writing signed by an authorized employee of Disclosing Party and the Receiving Party. No waiver of any provision of this Agreement shall\nconstitute a waiver of any other provision(s) or of the same provision on another occasion.\n(f) If either Disclosing Party or the Receiving Party employs attorneys to enforce any rights arising out of or relating to this Agreement, the\nprevailing party shall be entitled to recover reasonable attorneys’ fees and costs. This Agreement shall be construed and controlled by the laws of\nthe State of Washington, and the parties further consent to exclusive jurisdiction and venue in the federal courts sitting in King County,\nWashington, unless no federal subject matter jurisdiction exists, in which case the parties consent to the exclusive jurisdiction and venue in the\nSuperior Court of King County, Washington. Company waives all defenses of lack of personal jurisdiction and forum non conveniens. Process\nmay be served on either party in the manner authorized by applicable law or court rule.\n(g) This Agreement shall be binding upon and inure to the benefit of each party’s respective successors and lawful assigns; provided,\nhowever, that neither party may assign this Agreement (whether by operation of law, sale of securities or assets, merger or otherwise), in whole\nor in part, without the prior written approval of the other party. Any attempted assignment in violation of this Section shall be void.\n(h) If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining\nprovisions shall remain in full force and effect.\n(i) Either party may terminate this Agreement with or without cause upon ninety (90) days prior written notice to the other party. All sections\nof this Agreement relating to the rights and obligations of the parties concerning Confidential Information disclosed during the term of the\nAgreement shall survive any such termination.\nIN WITENSS WHEREOF, the parties hereto have executed this Agreement.\n*\nConfidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to\nthe confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the\nSecurities and Exchange Commission.\n33 EXHIBIT B\nTO: THE MICROSOFT OPERATIONS DIGITAL DISTRIBUTION AGREEMENT\nBETWEEN: MICROSOFT CORPORATION AND DIGITAL RIVER, INC.\nDATED: September 1, 2006\nNAME Non-Disclosure Agreement\nMICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT\n(STANDARD RECIPROCAL)\nThis Non-Disclosure Agreement (the “Agreement”) is made and entered into as of the later of the two signature dates below by and between\nMICROSOFT CORPORATION, a Washington corporation (“Microsoft”), and Digital River, Inc., a Delaware corporation (“Company”).\nIN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS CONTAINED IN THIS AGREEMENT AND THE MUTUAL\nDISCLOSURE OF CONFIDENTIAL INFORMATION, THE PARTIES HERETO AGREE AS FOLLOWS:\n1. Definition of Confidential Information and Exclusions.\n(a) “Confidential Information” means nonpublic information that a party to this Agreement (“Disclosing Party”) designates as being\nconfidential to the party that receives such information (“Receiving Party”) or which, under the circumstances surrounding disclosure ought to be\ntreated as confidential by the Receiving Party. “Confidential Information” includes, without limitation, information in tangible or intangible form\nrelating to and/or including released or unreleased Disclosing Party software or hardware products, the marketing or promotion of any Disclosing\nParty product, Disclosing Party’s business policies or practices, and information received from others that Disclosing Party is obligated to treat as\nconfidential. Except as otherwise indicated in this Agreement, the term Disclosing Party” also includes all Affiliates of the Disclosing Party and,\nexcept as otherwise indicated, the term “Receiving Party” also includes all Affiliates of the Receiving Party. And “Affiliate” means any person,\npartnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or\nindirectly, control, are controlled by, or are under common control with a party.\n(b) Confidential Information shall not include any information, however designated, that: (1) is or subsequently becomes publicly available\nwithout Receiving Party’s breach of any obligation owed Disclosing Party; (ii) became known to Receiving Party prior to Disclosing Party’s\ndisclosure of such information to Receiving Party pursuant to the terms of this Agreement; (iii) became known to Receiving Party from a source\nother than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party; (iv) is independently developed\nby Receiving Party.\n2. Obligations Regarding Confidential Information\n(a) Receiving Party shall:\n(i) Refrain from disclosing any Confidential Information of the Disclosing Party to third parties for five (5) years following the\ndate that Disclosing Party first discloses such Confidential Information to Receiving Party, except as expressly provided in\nSections 2(b) and 2(c) of this Agreement,\n(ii) Take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, but\nno less than reasonable care, to keep confidential the Confidential Information of the Disclosing Party;\n(iii) Refrain from disclosing, reproducing, summarizing and/or distributing Confidential Information of the Disclosing Party except\nin pursuance of Receiving Party’s business relationship with Disclosing Party, and only as otherwise provided hereunder; and\n(iv) Refrain from reverse engineering, decompiling or disassembling any software code and/or pre- release hardware devices\ndisclosed by Disclosing Party to Receiving Party under the terms of this Agreement, except as expressly permitted by\napplicable law.\n* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to\nthe confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the\nSecurities and Exchange Commission.\n31\n(b) Receiving Party may disclose Confidential Information of Disclosing Party in accordance with a judicial or other governmental order,\nprovided that Receiving Party either (i) gives the undersigned Disclosing Party reasonable notice prior to such disclosure to allow Disclosing\nParty a reasonable opportunity to seek a protective order or equivalent, or (ii) obtains written assurance from the applicable judicial or\ngovernmental entity that it will afford the Confidential Information the highest level of protection afforded under applicable law or regulation.\nNotwithstanding the foregoing, the Receiving Party shall not disclose any computer source code that contains Confidential Information of the\nDisclosing Party in accordance with a judicial or other governmental order unless it complies with the requirement set forth in sub-section (1) of\nthis Section 2(b).\n(c) The undersigned Receiving Party may disclose Confidential Information only to Receiving Party’s employees and consultants on a\nneed-to-know basis. The undersigned Receiving Party will have executed or shall execute appropriate written agreements with third parties\nsufficient to enable Receiving Party to enforce all the provisions of this Agreement\n(d) Receiving Party shall notify the undersigned Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nConfidential Information or any other breach of this Agreement by Receiving Party and its employees and consultants, and will cooperate with\nDisclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further\nunauthorized use or disclosure.\n(e) Receiving Party shall, at Disclosing Party’s request, return all originals, copies, reproductions and summaries of Confidential\nInformation and all other tangible materials and devices provided to the Receiving Party as Confidential Information, or at Disclosing Party’s\noption, certify destruction of the same.\n3. Remedies\nThe parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and\nthat Disclosing Party shall be entitled, without waiving any other tights or remedies, to such injunctive or equitable relief as may be deemed\nproper by a court of competent jurisdiction.\n4, Miscellaneous\n(a) All Confidential Information is and shall remain the property of Disclosing Party. By disclosing Confidential Information to Receiving\nParty, Disclosing Party does not grant any express or implied right to Receiving Party to or under any patents, copyrights, trademarks, or trade\nsecret information except as otherwise provided herein. Disclosing Party reserves without prejudice the ability to protect its rights under any such\npatents, copyrights, trademarks, or trade secrets except as otherwise provided herein.\n(b) In the event that the Disclosing Party provides any computer software and/or hardware to the Receiving Party as Confidential Information\nunder the terms of this Agreement, such computer software and/or hardware may only be used by the Receiving Party for evaluation and\nproviding Feedback (as defined in Section 5 of this Agreement) to the Disclosing Party. Unless otherwise agreed by the Disclosing Party and the\nReceiving Party, all such computer software and/or hardware is provided “AS IS” without warranty of any kind, and Receiving Party agrees that\nneither Disclosing Party nor its suppliers shall be liable for any damages whatsoever arising from or relating to Receiving Party’s use or inability\nto use such software and/or hardware.\n(c) The parties agree to comply with all applicable international and national laws that apply to (i) any Confidential Information, or (ii) any\nproduct (or any part thereof), process or service that is the direct product of the Confidential Information, including the U.S. Export\nAdministration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional\ninformation on exporting Microsoft products, see http://www.microsoft.com/exporting/.\n(d) The terms of confidentiality under this Agreement shall not be construed to limit either the Disclosing Party or the Receiving Party’s right\nto independently develop or acquire products without use of the other party’s Confidential Information.\n(e) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. It shall not be modified\nexcept by a written agreement dated subsequent to the date of this Agreement and signed by both parties. None of the provisions of this\nAgreement shall be deemed to have been waived by any act or acquiescence on the part of Disclosing Party, the Receiving Party, their agents, or\nemployees, but only by an instrument\n* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to\nthe confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the\nSecurities and Exchange Commission.\n32\nin writing signed by an authorized employee of Disclosing Party and the Receiving Party. No waiver of any provision of this Agreement shall\nconstitute a waiver of any other provision(s) or of the same provision on another occasion.\n(f) If either Disclosing Party or the Receiving Party employs attorneys to enforce any rights arising out of or relating to this Agreement, the\nprevailing party shall be entitled to recover reasonable attorneys’ fees and costs. This Agreement shall be construed and controlled by the laws of\nthe State of Washington, and the parties further consent to exclusive jurisdiction and venue in the federal courts sitting in King County,\nWashington, unless no federal subject matter jurisdiction exists, in which case the parties consent to the exclusive jurisdiction and venue in the\nSuperior Court of King County, Washington. Company waives all defenses of lack of personal jurisdiction and forum non conveniens. Process\nmay be served on either party in the manner authorized by applicable law or court rule.\n(g) This Agreement shall be binding upon and inure to the benefit of each party’s respective successors and lawful assigns; provided,\nhowever, that neither party may assign this Agreement (whether by operation of law, sale of securities or assets, merger or otherwise), in whole\nor in part, without the prior written approval of the other party. Any attempted assignment in violation of this Section shall be void.\n(h) If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining\nprovisions shall remain in full force and effect.\n(i) Either party may terminate this Agreement with or without cause upon ninety (90) days prior written notice to the other party. All sections\nof this Agreement relating to the rights and obligations of the parties concerning Confidential Information disclosed during the term of the\nAgreement shall survive any such termination.\nIN WITENSS WHEREOF, the parties hereto have executed this Agreement.\n* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to\nthe confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the\nSecurities and Exchange Commission.\n33 EXHIBIT B\nTO:\nTHE MICROSOFT OPERATIONS DIGITAL DISTRIBUTION AGREEMENT\nBETWEEN:\nMICROSOFT CORPORATION AND DIGITAL RIVER, INC.\nDATED:\nSeptember 1, 2006\nNAME\nNon-Disclosure Agreement\nMICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT\n(STANDARD RECIPROCAL)\nThis Non-Disclosure Agreement (the "Agreement") is made and entered into as of the later of the two signature dates below by and between\nMICROSOFT CORPORATION, a Washington corporation ("Microsoft"), and Digital River, Inc., a Delaware corporation ("Company").\nIN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS CONTAINED IN THIS AGREEMENT AND THE MUTUAL\nDISCLOSURE OF CONFIDENTIAL INFORMATION, THE PARTIES HERETO AGREE AS FOLLOWS:\n1. Definition of Confidential Information and Exclusions.\n(a) "Confidential Information" means nonpublic information that a party to this Agreement ("Disclosing Party") designates as being\nconfidential to the party that receives such information ("Receiving Party") or which, under the circumstances surrounding disclosure ought to be\ntreated\nas\nconfidential\nby\nthe\nReceiving\nParty.\n"Confidential\nInformation"\nincludes,\nwithout\nlimitation,\ninformation\nin\ntangible\nor\nintangible\nform\nrelating to and/or including released or unreleased Disclosing Party software or hardware products, the marketing or promotion of any Disclosing\nParty product, Disclosing Party's business policies or practices, and information received from others that Disclosing Party is obligated to treat as\nconfidential. Except as otherwise indicated in this Agreement, the term Disclosing Party" also includes all Affiliates of the Disclosing Party and,\nexcept as otherwise indicated, the term "Receiving Party" also includes all Affiliates of the Receiving Party. And "Affiliate" means any person,\npartnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly\nor\nindirectly, control, are controlled by, or are under common control with a party.\n(b) Confidential Information shall not include any information, however designated, that: (1) is or subsequently becomes publicly available\nwithout Receiving Party's breach of any obligation owed Disclosing Party; (ii) became known to Receiving Party prior to Disclosing Party's\ndisclosure of such information to Receiving Party pursuant to the terms of this Agreement; (iii) became known to Receiving Party from a\nsource\nother than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party; (iv) is independently developed\nby Receiving Party.\n2. Obligations Regarding Confidential Information\n(a) Receiving Party shall:\n(i) Refrain from disclosing any Confidential Information of the Disclosing Party to third parties for five (5) years following the\ndate that Disclosing Party first discloses such Confidential Information to Receiving Party, except as expressly provided in\nSections 2(b) and 2(c) of this Agreement,\n(ii) Take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, but\nno less than reasonable care, to keep confidential the Confidential Information of the Disclosing Party;\n(iii) Refrain from disclosing, reproducing, summarizing and/or distributing Confidentia Information of the Disclosing Party except\nin pursuance of Receiving Party's business relationship with Disclosing Party, and only as otherwise provided hereunder;\nand\n(iv) Refrain from reverse engineering, decompiling or disassembling any software code and/or pre- release hardware devices\ndisclosed by Disclosing Party to Receiving Party under the terms of this Agreement, except as expressly permitted by\napplicable law.\nConfidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to\nthe confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the\nSecurities and Exchange Commission.\n31\n(b) Receiving Party may disclose Confidential Information of Disclosing Party in accordance with a judicial or other governmental order,\nprovided that Receiving Party either (i) gives the undersigned Disclosing Party reasonable notice prior to such disclosure to allow Disclosing\nParty a reasonable opportunity to seek a protective order or equivalent, or (ii) obtains written assurance from the applicable judicial or\ngovernmental entity that it will afford the Confidential Information the highest level of protection afforded under applicable law or regulation.\nNotwithstanding the foregoing, the Receiving Party shall not disclose any computer source code that contains Confidential Information of the\nDisclosing Party in accordance with a judicial or other governmental order unless it complies with the requirement set forth in sub-section (1)\nof\nthis Section 2(b).\n(c) The undersigned Receiving Party may disclose Confidentia Information only to Receiving Party's employees and consultants on\na\nneed-to-know basis. The undersigned Receiving Party will have executed or shall execute appropriate written agreements with third parties\nsufficient to enable Receiving Party to enforce all the provisions of this Agreement\n(d) Receiving Party shall notify the undersigned Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nConfidential Information or any other breach of this Agreement by Receiving Party and its employees and consultants, and will cooperate with\nDisclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further\nunauthorized use or disclosure.\n(e) Receiving Party shall, at Disclosing Party's request, return all originals, copies, reproductions and summaries of Confidential\nInformation and all other tangible materials and devices provided to the Receiving Party as Confidential Information, or at Disclosing Party's\noption, certify destruction of the same.\n3. Remedies\nThe parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and\nthat Disclosing Party shall be entitled, without waiving any other tights or remedies, to such injunctive or equitable relief as may be deemed\nproper by a court of competent jurisdiction.\n4. Miscellaneous\n(a) All Confidential Information is and shall remain the property of Disclosing Party. By disclosing Confidential Information to Receiving\nParty, Disclosing Party does not grant any express or implied right to Receiving Party to or under any patents, copyrights, trademarks, or trade\nsecret information except as otherwise provided herein. Disclosing Party reserves without prejudice the ability to protect its rights under any such\npatents, copyrights, trademarks, or trade secrets except as otherwise provided herein.\n(b)\nIn the event that the Disclosing Party provides any computer software and/or hardware to the Receiving Party as Confidential Information\nunder the terms of this Agreement, such computer software and/or hardware may only be used by the Receiving Party for evaluation and\nproviding Feedback (as defined in Section 5 of this Agreement) to the Disclosing Party. Unless otherwise agreed by the Disclosing Party and the\nReceiving\nParty,\nall\nsuch\ncomputer\nsoftware\nand/or\nhardware\nis\nprovided\n"AS\nIS"\nwithout\nwarranty\nof\nany\nkind,\nand\nReceiving\nParty\nagrees\nthat\nneither Disclosing Party nor its suppliers shall be liable for any damages whatsoever arising from or relating to Receiving Party's use or inability\nto use such software and/or hardware.\n(c) The parties agree to comply with all applicable international and national laws that apply to (i) any Confidential Information, or (ii)\nany\nproduct (or any part thereof), process or service that is the direct product of the Confidential Information, including the U.S. Export\nAdministration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional\ninformation on exporting Microsoft products, see http://www.microsoft.com/exporting/.\n(d) The terms of confidentiality under this Agreement shall not be construed to limit either the Disclosing Party or the Receiving Party's right\nto independently develop or acquire products without use of the other party's Confidential Information.\n(e) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. It shall not be modified\nexcept by a written agreement dated subsequent to the date of this Agreement and signed by both parties. None of the provisions of this\nAgreement shall be deemed to have been waived by any act or acquiescence on the part of Disclosing Party, the Receiving Party, their agents, or\nemployees, but only by an instrument\nConfidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to\nthe confidentiality request. Omissions are designated as A complete version of this agreement has been filed separately with the\nSecurities and Exchange Commission.\n32\nin\nwriting signed by an authorized employee of Disclosing Party and the Receiving Party. No waiver of any provision of this Agreement shall\nconstitute a waiver of any other provision(s) or of the same provision on another occasion.\n(f) If either Disclosing Party or the Receiving Party employs attorneys to enforce any rights arising out of or relating to this Agreement, the\nprevailing party shall be entitled to recover reasonable attorneys' fees and costs. This Agreement shall be construed and controlled by the laws of\nthe State of Washington, and the parties further consent to exclusive jurisdiction and venue in the federal courts sitting in King County,\nWashington, unless no federal subject matter jurisdiction exists, in which case the parties consent to the exclusive jurisdiction and venue in the\nSuperior Court of King County, Washington. Company waives all defenses of lack of personal jurisdiction and forum non conveniens. Process\nmay be served on either party in the manner authorized by applicable law or court rule.\n(g) This Agreement shall be binding upon and inure to the benefit of each party's respective successors and lawful assigns; provided,\nhowever, that neither party may assign this Agreement (whether by operation of law, sale of securities or assets, merger or otherwise), in whole\nor in part, without the prior written approval of the other party. Any attempted assignment in violation of this Section shall be void.\n(h) If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining\nprovisions shall remain in full force and effect.\n(i) Either party may terminate this Agreement with or without cause upon ninety (90) days prior written notice to the other party. All sections\nof this Agreement relating to the rights and obligations of the parties concerning Confidential Information disclosed during the term of the\nAgreement shall survive any such termination.\nIN WITENSS WHEREOF, the parties hereto have executed this Agreement.\nConfidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to\nthe confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the\nSecurities and Exchange Commission.\n33 EXHIBIT B\nTO:\nTHE MICROSOFT OPERATIONS DIGITAL DISTRIBUTION AGREEMENT\nBETWEEN: MICROSOFT CORPORATION AND DIGITAL RIVER, INC.\nDATED:\nSeptember 1, 2006\nNAME\nNon-Disclosure Agreement\nMICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT\n(STANDARD RECIPROCAL)\nThis Non-Disclosure Agreement (the “Agreement”) is made and entered into as of the later of the two signature dates below by and between\nMICROSOFT CORPORATION, a Washington corporation (“Microsoft”), and Digital River, Inc., a Delaware corporation (“Company”).\nIN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS CONTAINED IN THIS AGREEMENT AND THE MUTUAL\nDISCLOSURE OF CONFIDENTIAL INFORMATION, THE PARTIES HERETO AGREE AS FOLLOWS:\n1. Definition of Confidential Information and Exclusions.\n(a) “Confidential Information” means nonpublic information that a party to this Agreement (“Disclosing Party”) designates as being\nconfidential to the party that receives such information (“Receiving Party”) or which, under the circumstances surrounding disclosure ought to be\ntreated as confidential by the Receiving Party. “Confidential Information” includes, without limitation, information in tangible or intangible form\nrelating to and/or including released or unreleased Disclosing Party software or hardware products, the marketing or promotion of any Disclosing\nParty product, Disclosing Party’s business policies or practices, and information received from others that Disclosing Party is obligated to treat as\nconfidential. Except as otherwise indicated in this Agreement, the term Disclosing Party” also includes all Affiliates of the Disclosing Party and,\nexcept as otherwise indicated, the term “Receiving Party” also includes all Affiliates of the Receiving Party. And “Affiliate” means any person,\npartnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or\nindirectly, control, are controlled by, or are under common control with a party.\n(b) Confidential Information shall not include any information, however designated, that: (1) is or subsequently becomes publicly available\nwithout Receiving Party’s breach of any obligation owed Disclosing Party; (ii) became known to Receiving Party prior to Disclosing Party’s\ndisclosure of such information to Receiving Party pursuant to the terms of this Agreement; (iii) became known to Receiving Party from a source\nother than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party; (iv) is independently developed\nby Receiving Party.\n2. Obligations Regarding Confidential Information\n(a) Receiving Party shall:\n(i) Refrain from disclosing any Confidential Information of the Disclosing Party to third parties for five (5) years following the\ndate that Disclosing Party first discloses such Confidential Information to Receiving Party, except as expressly provided in\nSections 2(b) and 2(c) of this Agreement,\n(ii) Take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, but\nno less than reasonable care, to keep confidential the Confidential Information of the Disclosing Party;\n(iii) Refrain from disclosing, reproducing, summarizing and/or distributing Confidential Information of the Disclosing Party except\nin pursuance of Receiving Party’s business relationship with Disclosing Party, and only as otherwise provided hereunder; and\n(iv) Refrain from reverse engineering, decompiling or disassembling any software code and/or pre- release hardware devices\ndisclosed by Disclosing Party to Receiving Party under the terms of this Agreement, except as expressly permitted by\napplicable law.\n*\nConfidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to\nthe confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the\nSecurities and Exchange Commission.\n31\n(b) Receiving Party may disclose Confidential Information of Disclosing Party in accordance with a judicial or other governmental order,\nprovided that Receiving Party either (i) gives the undersigned Disclosing Party reasonable notice prior to such disclosure to allow Disclosing\nParty a reasonable opportunity to seek a protective order or equivalent, or (ii) obtains written assurance from the applicable judicial or\ngovernmental entity that it will afford the Confidential Information the highest level of protection afforded under applicable law or regulation.\nNotwithstanding the foregoing, the Receiving Party shall not disclose any computer source code that contains Confidential Information of the\nDisclosing Party in accordance with a judicial or other governmental order unless it complies with the requirement set forth in sub-section (1) of\nthis Section 2(b).\n(c) The undersigned Receiving Party may disclose Confidential Information only to Receiving Party’s employees and consultants on a\nneed-to-know basis. The undersigned Receiving Party will have executed or shall execute appropriate written agreements with third parties\nsufficient to enable Receiving Party to enforce all the provisions of this Agreement\n(d) Receiving Party shall notify the undersigned Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nConfidential Information or any other breach of this Agreement by Receiving Party and its employees and consultants, and will cooperate with\nDisclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further\nunauthorized use or disclosure.\n(e) Receiving Party shall, at Disclosing Party’s request, return all originals, copies, reproductions and summaries of Confidential\nInformation and all other tangible materials and devices provided to the Receiving Party as Confidential Information, or at Disclosing Party’s\noption, certify destruction of the same.\n3. Remedies\nThe parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and\nthat Disclosing Party shall be entitled, without waiving any other tights or remedies, to such injunctive or equitable relief as may be deemed\nproper by a court of competent jurisdiction.\n4. Miscellaneous\n(a) All Confidential Information is and shall remain the property of Disclosing Party. By disclosing Confidential Information to Receiving\nParty, Disclosing Party does not grant any express or implied right to Receiving Party to or under any patents, copyrights, trademarks, or trade\nsecret information except as otherwise provided herein. Disclosing Party reserves without prejudice the ability to protect its rights under any such\npatents, copyrights, trademarks, or trade secrets except as otherwise provided herein.\n(b) In the event that the Disclosing Party provides any computer software and/or hardware to the Receiving Party as Confidential Information\nunder the terms of this Agreement, such computer software and/or hardware may only be used by the Receiving Party for evaluation and\nproviding Feedback (as defined in Section 5 of this Agreement) to the Disclosing Party. Unless otherwise agreed by the Disclosing Party and the\nReceiving Party, all such computer software and/or hardware is provided “AS IS” without warranty of any kind, and Receiving Party agrees that\nneither Disclosing Party nor its suppliers shall be liable for any damages whatsoever arising from or relating to Receiving Party’s use or inability\nto use such software and/or hardware.\n(c) The parties agree to comply with all applicable international and national laws that apply to (i) any Confidential Information, or (ii) any\nproduct (or any part thereof), process or service that is the direct product of the Confidential Information, including the U.S. Export\nAdministration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional\ninformation on exporting Microsoft products, see http://www.microsoft.com/exporting/.\n(d) The terms of confidentiality under this Agreement shall not be construed to limit either the Disclosing Party or the Receiving Party’s right\nto independently develop or acquire products without use of the other party’s Confidential Information.\n(e) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. It shall not be modified\nexcept by a written agreement dated subsequent to the date of this Agreement and signed by both parties. None of the provisions of this\nAgreement shall be deemed to have been waived by any act or acquiescence on the part of Disclosing Party, the Receiving Party, their agents, or\nemployees, but only by an instrument\n*\nConfidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to\nthe confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the\nSecurities and Exchange Commission.\n32\nin writing signed by an authorized employee of Disclosing Party and the Receiving Party. No waiver of any provision of this Agreement shall\nconstitute a waiver of any other provision(s) or of the same provision on another occasion.\n(f) If either Disclosing Party or the Receiving Party employs attorneys to enforce any rights arising out of or relating to this Agreement, the\nprevailing party shall be entitled to recover reasonable attorneys’ fees and costs. This Agreement shall be construed and controlled by the laws of\nthe State of Washington, and the parties further consent to exclusive jurisdiction and venue in the federal courts sitting in King County,\nWashington, unless no federal subject matter jurisdiction exists, in which case the parties consent to the exclusive jurisdiction and venue in the\nSuperior Court of King County, Washington. Company waives all defenses of lack of personal jurisdiction and forum non conveniens. Process\nmay be served on either party in the manner authorized by applicable law or court rule.\n(g) This Agreement shall be binding upon and inure to the benefit of each party’s respective successors and lawful assigns; provided,\nhowever, that neither party may assign this Agreement (whether by operation of law, sale of securities or assets, merger or otherwise), in whole\nor in part, without the prior written approval of the other party. Any attempted assignment in violation of this Section shall be void.\n(h) If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining\nprovisions shall remain in full force and effect.\n(i) Either party may terminate this Agreement with or without cause upon ninety (90) days prior written notice to the other party. All sections\nof this Agreement relating to the rights and obligations of the parties concerning Confidential Information disclosed during the term of the\nAgreement shall survive any such termination.\nIN WITENSS WHEREOF, the parties hereto have executed this Agreement.\n*\nConfidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to\nthe confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the\nSecurities and Exchange Commission.\n33 e90afd0c36ad8ce86d62ef0cbe75cde3.pdf effective_date jurisdiction party term EX-99.D.3 9 d70867dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nApril 2, 2015\nPERSONAL AND CONFIDENTIAL\nAlan S. Korman\nVice President, General Counsel\n& Secretary\nColumbus McKinnon Corporation\n140 John James Audubon Parkway\nAmherst, New York 14228\nDear Mr. Korman:\nTo allow you to evaluate a possible transaction (the “Potential Transaction”) involving Magnetek, Inc. (the “Company”) and/or its\nsecurities, we are prepared to provide you, upon your execution and delivery to us of this letter agreement, with access to information about the\nproperties and operations of the Company that we consider confidential and proprietary in nature. All information about the Company furnished\nby us or our Representatives (as defined below), or that you or your Representatives learn through access that we grant to our facilities,\nproperties or records, whether such information is furnished or such access is provided before, on or after the date of this letter agreement,\nwhether oral or written and regardless of the manner in which it is furnished or such access is provided, is referred to in this letter agreement as\n“Proprietary Information.” Notwithstanding the foregoing, Proprietary Information does not include information that (a) is or becomes generally\navailable to the public other than as a result of a disclosure by you or your Representatives, (b) was known to you on a nonconfidential basis\nprior to its disclosure by us or our Representatives, provided that the source of such information was not, to your knowledge after reasonable\ninquiry, bound by any confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to us or any of our\nRepresentatives, (c) becomes available to you on a nonconfidential basis from a person other than us or our Representatives who is not, to your\nknowledge after reasonable inquiry, bound by any confidentiality agreement with or other contractual, legal or fiduciary obligation of\nconfidentiality to us or any of our Representatives or (d) is independently developed by you or your Representatives without the use of or\nreference to any Proprietary Information. All Proprietary Information furnished by us or our Representatives pursuant to this letter agreement\nshall be and remain the property of the Company. As used in this letter agreement, (i) the term “person” shall be broadly interpreted to include,\nwithout limitation, any corporation, general or limited partnership, limited liability company, joint venture or other entity and any individual, and\n(ii) the term “Representative” means, as to any person, such person’s affiliates and its and their directors, officers, employees, agents, advisors\n(including, without limitation, financial advisors, counsel and accountants), controlling persons and debt and equity financing sources; provided,\nhowever, that, with respect to your debt and equity financing sources, such persons shall be considered Representatives only from and after the\ndate they agree in writing to be bound by the confidentiality and non-use restrictions of this letter agreement as if a party hereto and only to the\nextent the Company has given its prior written consent for such persons to receive Proprietary Information.\nAs a condition to receiving any Proprietary Information from us, you agree as follows:\n1. You shall (a) keep all Proprietary Information confidential and not disclose or reveal any Proprietary Information to any person other\nthan your Representatives who are actively and directly participating in your evaluation of the Potential Transaction or who otherwise need to\nknow the Proprietary Information for the purpose of evaluating or consummating the Potential Transaction and who agree in writing, prior to any\nProprietary Information being made available to them, to be bound by the confidentiality and non-use restrictions of this letter agreement, (b) use\nthe Proprietary Information only for the purpose of evaluating or consummating the Potential Transaction (and not for any other purpose,\nincluding, without limitation, in furtherance of your business or in any way directly or indirectly detrimental to the Company), (c) not disclose to\nany person any information about the Potential Transaction or the terms or conditions or any other facts relating thereto, including, without\nlimitation, the fact that discussions are taking place with respect thereto or the status thereof or the fact that Proprietary Information has been\nmade available to you or your Representatives, except that you may disclose such information to your Representatives who are actively and\ndirectly participating in your\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 2\nevaluation of the Potential Transaction or who otherwise need to know such information for the purpose of evaluating or consummating the\nPotential Transaction, and (d) cooperate in good faith in any manner that we reasonably request with respect to the implementation of any\nprotective procedures that we deem advisable by reason of the antitrust or competition laws of any jurisdiction.\n2. If you or your Representatives are requested or required (by oral question or request for information or documents in legal proceedings,\ninterrogatories, subpoena, civil investigation demand or similar process or by reason of the express requirements of federal or state securities\nlaws or of any recognized stock exchange on which your securities are traded) to disclose any Proprietary Information or any other information\nrelating to the Company and/or the Potential Transaction, then you shall provide us with prompt written notice of the existence, terms and\ncircumstances surrounding such request or requirement to enable us (a) to seek an appropriate protective order or other remedy, (b) to consult\nwith you with respect to our taking steps to resist or narrow the scope of such request or legal process and/or (c) to waive compliance, in whole\nor in part, with the terms of this letter agreement. If, in the absence of a protective order or a waiver under this letter agreement, you or any of\nyour Representatives is nonetheless, based on the written advice of your counsel, compelled to disclose Proprietary Information to any tribunal or\nelse stand liable for contempt, then you or such Representative may disclose such Proprietary Information to the tribunal, provided that (i) to the\nextent practical in light of the circumstances, we are given the opportunity to approve, and have approved, any written disclosure of the\nProprietary Information (which approval shall not be unreasonably withheld, delayed or conditioned) and (ii) you use your reasonable best efforts\nto obtain an order or other reasonable assurance that confidential treatment will be accorded to such portion of the Proprietary Information\nrequired to be disclosed as we may designate in our sole discretion. Subject to the foregoing, you or such Representative shall not be liable for\nthe disclosure to such tribunal to the extent such disclosure is compelled (it being understood, however, that if such disclosure was caused or\nresulted from a previous disclosure by you or your Representatives not permitted under this letter agreement, then the other terms and provisions\nof this letter agreement shall continue in full force and effect and shall be enforceable by us as to such disclosure or disclosures not permitted\nunder this letter agreement that resulted in the compelled disclosure).\n3. You shall enforce the terms of this letter agreement, including, without limitation, the nondisclosure, nonuse and other obligations\nregarding Proprietary Information, as to your Representatives. You shall take all reasonable action, legal or otherwise, necessary (a) to cause your\nRepresentatives to comply with the terms of this letter agreement and (b) to prevent unauthorized disclosure or use of the Proprietary Information\nby any of your Representatives (including, without limitation, actions that you would take to protect your own trade secrets and confidential\ninformation). Any failure by any of your Representatives to comply with this letter agreement, or any act or omission by any of your\nRepresentatives that, if committed by you, would constitute a breach of this letter agreement, shall be deemed to be a breach of this letter\nagreement by you for which you shall be jointly and severally responsible with your relevant Representatives. At our request, you shall supply to\nus a list of your Representatives to whom you have made Proprietary Information available.\n4. You acknowledge that certain of the Proprietary Information to which you or your Representatives may be given access pursuant to this\nletter agreement is information to which the attorney-client or similar privilege attaches (collectively, the “Privileged Information”). You agree\nthat access to such Privileged Information is being provided solely for the purposes set forth in this letter agreement and that such access is not\nintended and should not be interpreted as a waiver of any attorney-client or similar privilege in respect of the Privileged Information or of any\nright to assert or claim any attorney-client or similar privilege in respect of the Privileged Information. To the extent any attorney-client or\nsimilar privilege is deemed waived notwithstanding the foregoing, such waiver shall be a limited waiver in favor of you, solely for the purposes\nand on the terms set forth in this letter agreement. Upon our request, you shall claim or assert, or cooperate in good faith to claim or assert, any\nattorney-client or similar privilege in respect of the Privileged Information. The provisions of this paragraph shall survive the expiration or\ntermination of this letter agreement.\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 3\n5. If you determine that you do not wish to proceed with the Potential Transaction, then you shall promptly provide us with written notice\nof that decision. In that case, or if the Potential Transaction is not consummated by you or if we, in our sole discretion, at any time so request,\nthen you shall promptly (and in any case within ten (10) days after our request) (a) return or cause to be returned to us all written Proprietary\nInformation (and all copies thereof) that you or any of your Representatives possess or control and delete or cause to be deleted all electronic\nProprietary Information that you or any of your Representatives possess or control, (b) destroy or cause to be destroyed all copies, extracts or\nother reproductions (including computer tapes, discs and other electronic storage means or oral reproductions) in whole or in part of such written\n(or electronic) materials, (c) destroy or cause to be destroyed all copies of any analyses, compilations, studies or other documents prepared by\nyou or your Representatives or for your use containing or reflecting any Proprietary Information and (d) deliver to us a written certificate,\nexecuted on your behalf by an authorized officer supervising the return, deletion and destruction of such materials, certifying, representing and\nwarranting to us that all materials required to be returned, deleted or destroyed pursuant to this letter agreement have been returned, deleted or\ndestroyed in accordance with the terms of this letter agreement, provided that such certificate, to the extent relating to materials prepared by your\nRepresentatives, may be based on a similar certificate obtained from your Representatives. Notwithstanding the foregoing, your outside counsel,\nwhose identity you disclose to us in writing, may retain one (1) copy of the materials described in clause (a) above for archival purposes as\nrequired by applicable law. Where this letter agreement requires or permits materials to be deleted or destroyed, in the case of materials in any\nelectronic format, compliance with such provision means that such materials shall be permanently erased from all computer hard drives, servers\nand similar media; provided, however, that such provision shall not require any action to delete or erase such materials from any disaster\nrecovery tapes or other back-up media of any record retention or computer storage system so long as you take such reasonable actions as are\nreasonably likely to prevent access on a permanent basis to such materials by any person other than information technology and other\nadministrative employees who are responsible for maintaining those disaster recovery tapes and other back-up media. The return, deletion and/or\ndestruction of materials shall not relieve you or any of your Representatives of any confidentiality, nonuse or other obligations regarding\nProprietary Information, whether arising under this letter agreement, applicable law or otherwise.\n6. Without our prior written consent, you shall not, and you shall cause your affiliates not to, for a period of two (2) years from the date of\nthis letter agreement, take any action to solicit, induce or otherwise offer employment to, engage in discussions regarding employment with, or\nactually hire, any person who is now employed by us or any of our affiliates and (a) with whom you have any contact or about whom you obtain\nany Proprietary Information as a result of your evaluation of, or otherwise in connection with, the Potential Transaction or (b) who performs\nemployment services in an executive, management or engineering position. Notwithstanding the foregoing, nothing in this paragraph shall\nprohibit you from soliciting, inducing or otherwise offering employment to any employee of ours or any of our affiliates (i) who responds to a\npublic advertisement of general solicitation placed by you and not targeted at our employees, (ii) whose employment with us and each of our\naffiliates has terminated for a period of at least ninety (90) consecutive days prior to any contact with such employee initiated by you or any of\nyour affiliates or (iii) who is solicited by an employee of an executive search firm acting on your (or any of your affiliates’) behalf where you did\nnot identify to such search firm the name of such employee and you did not direct, instruct or encourage the solicitation of such specific\nemployee.\n7. You agree that neither we nor our Representatives, nor our or our Representatives’ officers, directors, employees, agents or controlling\npersons, shall be deemed to make, or shall be responsible for, any express or implied representation or warranty as to the accuracy or\ncompleteness of any Proprietary Information, and you agree that none of such persons shall have any liability to you or any of your\nRepresentatives relating to or arising from your or their use of any Proprietary Information, for the content thereof, for any errors therein or for\nany omissions therefrom. You also agree that neither we nor any of our Representatives shall have any obligation to update, supplement or\namend the Proprietary Information as a result of subsequent events or developments or otherwise. You further agree that you are not entitled to\nrely on the accuracy or completeness of any Proprietary\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 4\nInformation and that you shall be entitled to rely solely on such representations and warranties regarding Proprietary Information as may be made\nto you in any final definitive agreement relating to the Potential Transaction, subject to the terms and conditions of such agreement. For purposes\nof this letter agreement, the term “final definitive agreement” does not include any executed letter of intent or other preliminary written\nagreement or any written or oral acceptance of an offer or bid.\n8. You acknowledge that no contract or agreement providing for the Potential Transaction or any similar transaction shall be deemed to\nexist between you and us unless and until a final definitive agreement relating to the Potential Transaction has been executed and delivered by\nyou and us. You hereby waive, in advance, any and all claims (including, without limitation, breach of contract claims, but excluding any claims\nunder any other written agreements between you and us expressly intended to be binding) in connection with any such transaction unless and\nuntil you and we have executed and delivered such a final definitive agreement. You further acknowledge that, unless and until such a final\ndefinitive agreement has been executed and delivered, neither we nor our Representatives shall have any legal obligation of any kind whatsoever\nwith respect to any such transaction by virtue of this letter agreement or any other written or oral expression with respect to such transaction\n(except for obligations under any other written agreements between you and us expressly intended to be binding).\n9. You agree that (a) we and our Representatives may conduct the process that may or may not result in the Potential Transaction in such a\nmanner as we, in our sole discretion, may determine, including, without limitation, negotiating and entering into a final definitive agreement with\nany third party without notice to you, (b) we reserve the right to change, in our sole discretion, at any time and without notice to you, the\nprocedures relating to our and your consideration of the Potential Transaction, including, without limitation, terminating all further discussions\nwith you and demanding that you comply with the provisions of Paragraph 5, and (c) unless and until a final definitive agreement concerning the\nPotential Transaction is executed and delivered by you and us, neither the Company nor any of its Representatives shall have any liability to you\narising out of or relating to the Potential Transaction or any similar transaction, whether by virtue of this letter agreement, any other written or\noral expression with respect to the Potential Transaction or otherwise. Without limitation, you agree that we, in our sole discretion, shall have the\nright at any time to terminate your investigation of the Company and to reject any or all proposals relating to the Potential Transaction for any\nreason without explanation and without liability. The investigation of the Company by you and your Representatives is entirely at your own\nexpense and risk.\n10. Except as otherwise expressly set forth in written instructions that we may provide to you and except for ordinary course business\ncommunications unrelated to the Potential Transaction, you shall not, and you shall cause your Representatives not to, initiate or maintain contact\nwith any of our or our affiliates’ directors, officers, employees or agents, other than Simon Kubbies of Goldman Sachs Group, Inc. or his\ndesignees, regarding the Potential Transaction. Without limitation, you agree that, except as otherwise expressly set forth in written instructions\nthat we may provide to you, (a) Simon Kubbies or his designees shall arrange for the appropriate contacts for due diligence relating to the\nPotential Transaction and (b) all communications regarding the Potential Transaction, all requests for additional information and all requests for\naccess to facilities or management meetings, in each case, to the extent related to the Potential Transaction, shall be submitted and directed to\nSimon Kubbies or his designees.\n11. You acknowledge that you are aware, and you shall advise your Representatives who are informed of the matters that are the subject of\nthis letter agreement, that the United States securities laws prohibit any person who is aware of material, nonpublic information concerning a\ncompany from purchasing or selling securities of that company or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such\ninformation.\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 5\n12. You agree that the Proprietary Information is being furnished to you in consideration of your agreement that, for a period of two\n(2) years after the date of this letter agreement, you and your affiliates shall not (and you and your affiliates shall not advise, assist or encourage\nothers to), directly or indirectly, acting alone or in concert with others, unless specifically requested in writing in advance by the Board of\nDirectors of the Company:\n(a) acquire, offer to acquire, or agree to acquire or offer to acquire (or request permission to do so or to make any proposal in such\nregards), directly or indirectly, by purchase or otherwise, beneficial ownership of the Company or any affiliate thereof or any of the assets\nor businesses of the Company or any affiliate thereof or any securities issued by the Company or any affiliate thereof;\n(b) solicit, make, encourage or in any way participate in the solicitation of, directly or indirectly, any proxies or consents, including,\nwithout limitation, proxies or consents as to voting matters, with respect to any securities of the Company, or otherwise seek to advise or\ninfluence any person with respect to the voting of any securities of the Company;\n(c) offer, seek or propose any merger, consolidation, business combination, recapitalization, restructuring or other extraordinary\ntransaction involving the Company or its affiliates or any securities, assets or businesses of the Company or its affiliates;\n(d) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any\nextraordinary transaction involving the Company or its affiliates or any securities, assets or businesses of the Company or its affiliates;\n(e) seek or propose to influence control or influence in any manner the Company’s management, Board of Directors or policies;\n(f) disclose any intention, plan or arrangement inconsistent with the foregoing;\n(g) request the Company, its Board of Directors or any of its Representatives, directly or indirectly, to amend or waive any provision\nof this Paragraph 12;\n(h) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing,\nincluding, without limitation, forming, joining or in any way participating in any “group” (as defined in Section 13(d)(3) of the Securities\nExchange Act of 1934, as amended) in connection with any of the foregoing; or\n(i) take any action that might require the Company to make a public announcement regarding any of the foregoing, seek or request\npermission to do any of the foregoing, or make or seek permission to make any public announcement with respect to any of the foregoing.\nIf, at any time during such period, you are approached by any third party concerning a proposal involving any of the matters covered by clauses\n(a) through (i) above or your or any third party’s participation in a transaction involving any securities, assets or businesses of the Company or its\naffiliates, then you shall promptly inform us of the nature of such contact and the parties thereto. The term “beneficial ownership” is used as\ndefined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended, except that references to “securities” shall include: (i) securities,\n(ii) rights or options to own or acquire any securities (whether such right or option is exercisable immediately or only after the passage of time or\nupon the satisfaction of one or more conditions (whether or not within the control of such person), compliance with regulatory requirements or\notherwise) and (iii) any other economic exposure to securities, including through any derivative transaction that gives any such person or any of\nsuch person’s affiliates the economic equivalent of ownership of an amount of securities due to the fact that the value of the derivative is\nexplicitly determined by reference to the price or value of securities, or which provides such person or any of such person’s affiliates an\nopportunity, directly or indirectly, to profit, or to share in any profit, derived from any increase in the value of securities, in any case, without\nregard to whether (A) such derivative conveys any voting rights in securities to such person or any of such person’s affiliates,\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 6\n(B) the derivative is required to be, or capable of being, settled through delivery of securities or (C) such person or any of such person’s affiliates\nmay have entered into other transactions that hedge the economic effect of such beneficial ownership of securities.\n13. Without prejudice to the rights and remedies otherwise available to us, you agree that money damages would not be a sufficient remedy\nfor any breach or threatened breach of this letter agreement by you or any of your Representatives and that we shall be entitled to specific\nperformance and to injunctive or other equitable relief as remedies if you or any of your Representatives breach or threaten to breach any of the\nprovisions of this letter agreement (including any act or omission by any of your Representatives that, if committed by you, would constitute a\nbreach of this letter agreement). You hereby waive any requirement for the securing or posting of any bond in connection with any such remedy.\n14. You acknowledge that no failure or delay by us in exercising any right, power or privilege under this letter agreement shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or\nprivilege under this letter agreement.\n15. This letter agreement shall be governed by and construed in accordance with the laws of the State of Delaware, excluding any choice of\nlaw rules that may direct the application of the laws of another jurisdiction. You expressly agree that any action brought pursuant to this letter\nagreement shall be brought, heard and determined exclusively in the United States Federal District Court for the District of Delaware, and you\nconsent to personal and subject matter jurisdiction and venue in such court and waive and relinquish all right to attack the suitability or\nconvenience of such venue or forum. You waive personal service of any and all process in any such action and consent to all such service of\nprocess made by mail or messenger to the address specified on the first page of this letter agreement. You acknowledge that all directions issued\nby the forum court, including, without limitation, all injunctions and other decrees, shall be binding and enforceable in all jurisdictions.\n16. This letter agreement shall bind and impose obligations upon any of your parent, subsidiary, sibling and other affiliates to which the\nProprietary Information is disseminated. Any assignment of this letter agreement by you without our prior written consent shall be void and\nwithout legal effect. This letter agreement supersedes all prior agreements, and constitutes a complete and exclusive statement of the terms of the\nagreement, between the parties with respect to its subject matter. There have been and are no agreements, representations or warranties between\nthe parties with respect to the subject matter of this letter agreement other than those set forth or provided for in this letter agreement. No\nmodification of this letter agreement or waiver of the terms and conditions hereof shall be binding upon you or us, unless in a writing executed\nby each of you and us. This letter agreement may be executed by signatures exchanged via facsimile or other electronic means and in one or\nmore counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.\n17. This letter agreement shall take effect as of the date hereof and, except as otherwise expressly set forth in this letter agreement, shall\nremain in effect for a period of three (3) years, provided that your and your Representatives’ obligations under this letter agreement with respect\nto any Proprietary Information that constitutes a trade secret under applicable law shall continue until such Proprietary Information no longer\nconstitutes a trade secret under applicable law.\n[Signature page follows]\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 7\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter enclosed\nherewith.\nMAGNETEK, INC.\nBy:\n/s/ Scott S. Cramer\nName: Scott S. Cramer\nTitle: VP, General Counsel & Secretary\nACCEPTED AND AGREED:\nColumbus McKinnon Corporation\nBy: /s/ Alan S. Korman\nName: Alan S. Korman\nTitle: VP, General Counsel & Secretary EX-99.D.3 9 d70867dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nApril 2, 2015\nPERSONAL AND CONFIDENTIAL\nAlan S. Korman\nVice President, General Counsel\n& Secretary\nColumbus McKinnon Corporation\n140 John James Audubon Parkway\nAmbherst, New York 14228\nDear Mr. Korman:\nTo allow you to evaluate a possible transaction (the “Potential Transaction”) involving Magnetek, Inc. (the “Company™) and/or its\nsecurities, we are prepared to provide you, upon your execution and delivery to us of this letter agreement, with access to information about the\nproperties and operations of the Company that we consider confidential and proprietary in nature. All information about the Company furnished\nby us or our Representatives (as defined below), or that you or your Representatives learn through access that we grant to our facilities,\nproperties or records, whether such information is furnished or such access is provided before, on or after the date of this letter agreement,\nwhether oral or written and regardless of the manner in which it is furnished or such access is provided, is referred to in this letter agreement as\n“Proprietary Information.” Notwithstanding the foregoing, Proprietary Information does not include information that (a) is or becomes generally\navailable to the public other than as a result of a disclosure by you or your Representatives, (b) was known to you on a nonconfidential basis\nprior to its disclosure by us or our Representatives, provided that the source of such information was not, to your knowledge after reasonable\ninquiry, bound by any confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to us or any of our\nRepresentatives, (c) becomes available to you on a nonconfidential basis from a person other than us or our Representatives who is not, to your\nknowledge after reasonable inquiry, bound by any confidentiality agreement with or other contractual, legal or fiduciary obligation of\nconfidentiality to us or any of our Representatives or (d) is independently developed by you or your Representatives without the use of or\nreference to any Proprietary Information. All Proprietary Information furnished by us or our Representatives pursuant to this letter agreement\nshall be and remain the property of the Company. As used in this letter agreement, (i) the term “person” shall be broadly interpreted to include,\nwithout limitation, any corporation, general or limited partnership, limited liability company, joint venture or other entity and any individual, and\n(ii) the term “Representative” means, as to any person, such person’s affiliates and its and their directors, officers, employees, agents, advisors\n(including, without limitation, financial advisors, counsel and accountants), controlling persons and debt and equity financing sources; provided,\nhowever, that, with respect to your debt and equity financing sources, such persons shall be considered Representatives only from and after the\ndate they agree in writing to be bound by the confidentiality and non-use restrictions of this letter agreement as if a party hereto and only to the\nextent the Company has given its prior written consent for such persons to receive Proprietary Information.\n \nAs a condition to receiving any Proprietary Information from us, you agree as follows:\n1. You shall (a) keep all Proprietary Information confidential and not disclose or reveal any Proprietary Information to any person other\nthan your Representatives who are actively and directly participating in your evaluation of the Potential Transaction or who otherwise need to\nknow the Proprietary Information for the purpose of evaluating or consummating the Potential Transaction and who agree in writing, prior to any\nProprietary Information being made available to them, to be bound by the confidentiality and non-use restrictions of this letter agreement, (b) use\nthe Proprietary Information only for the purpose of evaluating or consummating the Potential Transaction (and not for any other purpose,\nincluding, without limitation, in furtherance of your business or in any way directly or indirectly detrimental to the Company), (c) not disclose to\nany person any information about the Potential Transaction or the terms or conditions or any other facts relating thereto, including, without\nlimitation, the fact that discussions are taking place with respect thereto or the status thereof or the fact that Proprietary Information has been\nmade available to you or your Representatives, except that you may disclose such information to your Representatives who are actively and\ndirectly participating in your\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 2\nevaluation of the Potential Transaction or who otherwise need to know such information for the purpose of evaluating or consummating the\nPotential Transaction, and (d) cooperate in good faith in any manner that we reasonably request with respect to the implementation of any\nprotective procedures that we deem advisable by reason of the antitrust or competition laws of any jurisdiction.\n2. If you or your Representatives are requested or required (by oral question or request for information or documents in legal proceedings,\ninterrogatories, subpoena, civil investigation demand or similar process or by reason of the express requirements of federal or state securities\nlaws or of any recognized stock exchange on which your securities are traded) to disclose any Proprietary Information or any other information\nrelating to the Company and/or the Potential Transaction, then you shall provide us with prompt written notice of the existence, terms and\ncircumstances surrounding such request or requirement to enable us (a) to seek an appropriate protective order or other remedy, (b) to consult\nwith you with respect to our taking steps to resist or narrow the scope of such request or legal process and/or (c) to waive compliance, in whole\nor in part, with the terms of this letter agreement. If, in the absence of a protective order or a waiver under this letter agreement, you or any of\nyour Representatives is nonetheless, based on the written advice of your counsel, compelled to disclose Proprietary Information to any tribunal or\nelse stand liable for contempt, then you or such Representative may disclose such Proprietary Information to the tribunal, provided that (i) to the\nextent practical in light of the circumstances, we are given the opportunity to approve, and have approved, any written disclosure of the\nProprietary Information (which approval shall not be unreasonably withheld, delayed or conditioned) and (ii) you use your reasonable best efforts\nto obtain an order or other reasonable assurance that confidential treatment will be accorded to such portion of the Proprietary Information\nrequired to be disclosed as we may designate in our sole discretion. Subject to the foregoing, you or such Representative shall not be liable for\nthe disclosure to such tribunal to the extent such disclosure is compelled (it being understood, however, that if such disclosure was caused or\nresulted from a previous disclosure by you or your Representatives not permitted under this letter agreement, then the other terms and provisions\nof this letter agreement shall continue in full force and effect and shall be enforceable by us as to such disclosure or disclosures not permitted\nunder this letter agreement that resulted in the compelled disclosure).\n3. You shall enforce the terms of this letter agreement, including, without limitation, the nondisclosure, nonuse and other obligations\nregarding Proprietary Information, as to your Representatives. You shall take all reasonable action, legal or otherwise, necessary (a) to cause your\nRepresentatives to comply with the terms of this letter agreement and (b) to prevent unauthorized disclosure or use of the Proprietary Information\nby any of your Representatives (including, without limitation, actions that you would take to protect your own trade secrets and confidential\ninformation). Any failure by any of your Representatives to comply with this letter agreement, or any act or omission by any of your\nRepresentatives that, if committed by you, would constitute a breach of this letter agreement, shall be deemed to be a breach of this letter\nagreement by you for which you shall be jointly and severally responsible with your relevant Representatives. At our request, you shall supply to\nus a list of your Representatives to whom you have made Proprietary Information available.\n4. You acknowledge that certain of the Proprietary Information to which you or your Representatives may be given access pursuant to this\nletter agreement is information to which the attorney-client or similar privilege attaches (collectively, the “Privileged Information™). You agree\nthat access to such Privileged Information is being provided solely for the purposes set forth in this letter agreement and that such access is not\nintended and should not be interpreted as a waiver of any attorney-client or similar privilege in respect of the Privileged Information or of any\nright to assert or claim any attorney-client or similar privilege in respect of the Privileged Information. To the extent any attorney-client or\nsimilar privilege is deemed waived notwithstanding the foregoing, such waiver shall be a limited waiver in favor of you, solely for the purposes\nand on the terms set forth in this letter agreement. Upon our request, you shall claim or assert, or cooperate in good faith to claim or assert, any\nattorney-client or similar privilege in respect of the Privileged Information. The provisions of this paragraph shall survive the expiration or\ntermination of this letter agreement.\n \nColumbus McKinnon Corporation\nApril 2, 2015\nPage 3\n5. If you determine that you do not wish to proceed with the Potential Transaction, then you shall promptly provide us with written notice\nof that decision. In that case, or if the Potential Transaction is not consummated by you or if we, in our sole discretion, at any time so request,\nthen you shall promptly (and in any case within ten (10) days after our request) (a) return or cause to be returned to us all written Proprietary\nInformation (and all copies thereof) that you or any of your Representatives possess or control and delete or cause to be deleted all electronic\nProprietary Information that you or any of your Representatives possess or control, (b) destroy or cause to be destroyed all copies, extracts or\nother reproductions (including computer tapes, discs and other electronic storage means or oral reproductions) in whole or in part of such written\n(or electronic) materials, (c) destroy or cause to be destroyed all copies of any analyses, compilations, studies or other documents prepared by\nyou or your Representatives or for your use containing or reflecting any Proprietary Information and (d) deliver to us a written certificate,\nexecuted on your behalf by an authorized officer supervising the return, deletion and destruction of such materials, certifying, representing and\nwarranting to us that all materials required to be returned, deleted or destroyed pursuant to this letter agreement have been returned, deleted or\ndestroyed in accordance with the terms of this letter agreement, provided that such certificate, to the extent relating to materials prepared by your\nRepresentatives, may be based on a similar certificate obtained from your Representatives. Notwithstanding the foregoing, your outside counsel,\nwhose identity you disclose to us in writing, may retain one (1) copy of the materials described in clause (a) above for archival purposes as\nrequired by applicable law. Where this letter agreement requires or permits materials to be deleted or destroyed, in the case of materials in any\nelectronic format, compliance with such provision means that such materials shall be permanently erased from all computer hard drives, servers\nand similar media; provided, however, that such provision shall not require any action to delete or erase such materials from any disaster\nrecovery tapes or other back-up media of any record retention or computer storage system so long as you take such reasonable actions as are\nreasonably likely to prevent access on a permanent basis to such materials by any person other than information technology and other\nadministrative employees who are responsible for maintaining those disaster recovery tapes and other back-up media. The return, deletion and/or\ndestruction of materials shall not relieve you or any of your Representatives of any confidentiality, nonuse or other obligations regarding\nProprietary Information, whether arising under this letter agreement, applicable law or otherwise.\n6. Without our prior written consent, you shall not, and you shall cause your affiliates not to, for a period of two (2) years from the date of\nthis letter agreement, take any action to solicit, induce or otherwise offer employment to, engage in discussions regarding employment with, or\nactually hire, any person who is now employed by us or any of our affiliates and (a) with whom you have any contact or about whom you obtain\nany Proprietary Information as a result of your evaluation of, or otherwise in connection with, the Potential Transaction or (b) who performs\nemployment services in an executive, management or engineering position. Notwithstanding the foregoing, nothing in this paragraph shall\nprohibit you from soliciting, inducing or otherwise offering employment to any employee of ours or any of our affiliates (i) who responds to a\npublic advertisement of general solicitation placed by you and not targeted at our employees, (ii) whose employment with us and each of our\naffiliates has terminated for a period of at least ninety (90) consecutive days prior to any contact with such employee initiated by you or any of\nyour affiliates or (iii) who is solicited by an employee of an executive search firm acting on your (or any of your affiliates”) behalf where you did\nnot identify to such search firm the name of such employee and you did not direct, instruct or encourage the solicitation of such specific\nemployee.\n7. You agree that neither we nor our Representatives, nor our or our Representatives’ officers, directors, employees, agents or controlling\npersons, shall be deemed to make, or shall be responsible for, any express or implied representation or warranty as to the accuracy or\ncompleteness of any Proprietary Information, and you agree that none of such persons shall have any liability to you or any of your\nRepresentatives relating to or arising from your or their use of any Proprietary Information, for the content thereof, for any errors therein or for\nany omissions therefrom. You also agree that neither we nor any of our Representatives shall have any obligation to update, supplement or\namend the Proprietary Information as a result of subsequent events or developments or otherwise. You further agree that you are not entitled to\nrely on the accuracy or completeness of any Proprietary\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 4\nInformation and that you shall be entitled to rely solely on such representations and warranties regarding Proprietary Information as may be made\nto you in any final definitive agreement relating to the Potential Transaction, subject to the terms and conditions of such agreement. For purposes\nof this letter agreement, the term “final definitive agreement” does not include any executed letter of intent or other preliminary written\nagreement or any written or oral acceptance of an offer or bid.\n8. You acknowledge that no contract or agreement providing for the Potential Transaction or any similar transaction shall be deemed to\nexist between you and us unless and until a final definitive agreement relating to the Potential Transaction has been executed and delivered by\nyou and us. You hereby waive, in advance, any and all claims (including, without limitation, breach of contract claims, but excluding any claims\nunder any other written agreements between you and us expressly intended to be binding) in connection with any such transaction unless and\nuntil you and we have executed and delivered such a final definitive agreement. You further acknowledge that, unless and until such a final\ndefinitive agreement has been executed and delivered, neither we nor our Representatives shall have any legal obligation of any kind whatsoever\nwith respect to any such transaction by virtue of this letter agreement or any other written or oral expression with respect to such transaction\n(except for obligations under any other written agreements between you and us expressly intended to be binding).\n9. You agree that (a) we and our Representatives may conduct the process that may or may not result in the Potential Transaction in such a\nmanner as we, in our sole discretion, may determine, including, without limitation, negotiating and entering into a final definitive agreement with\nany third party without notice to you, (b) we reserve the right to change, in our sole discretion, at any time and without notice to you, the\nprocedures relating to our and your consideration of the Potential Transaction, including, without limitation, terminating all further discussions\nwith you and demanding that you comply with the provisions of Paragraph 5, and (c) unless and until a final definitive agreement concerning the\nPotential Transaction is executed and delivered by you and us, neither the Company nor any of its Representatives shall have any liability to you\narising out of or relating to the Potential Transaction or any similar transaction, whether by virtue of this letter agreement, any other written or\noral expression with respect to the Potential Transaction or otherwise. Without limitation, you agree that we, in our sole discretion, shall have the\nright at any time to terminate your investigation of the Company and to reject any or all proposals relating to the Potential Transaction for any\nreason without explanation and without liability. The investigation of the Company by you and your Representatives is entirely at your own\nexpense and risk.\n10. Except as otherwise expressly set forth in written instructions that we may provide to you and except for ordinary course business\ncommunications unrelated to the Potential Transaction, you shall not, and you shall cause your Representatives not to, initiate or maintain contact\nwith any of our or our affiliates’ directors, officers, employees or agents, other than Simon Kubbies of Goldman Sachs Group, Inc. or his\ndesignees, regarding the Potential Transaction. Without limitation, you agree that, except as otherwise expressly set forth in written instructions\nthat we may provide to you, (a) Simon Kubbies or his designees shall arrange for the appropriate contacts for due diligence relating to the\nPotential Transaction and (b) all communications regarding the Potential Transaction, all requests for additional information and all requests for\naccess to facilities or management meetings, in each case, to the extent related to the Potential Transaction, shall be submitted and directed to\nSimon Kubbies or his designees.\n11. You acknowledge that you are aware, and you shall advise your Representatives who are informed of the matters that are the subject of\nthis letter agreement, that the United States securities laws prohibit any person who is aware of material, nonpublic information concerning a\ncompany from purchasing or selling securities of that company or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such\ninformation.\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 5\n12. You agree that the Proprietary Information is being furnished to you in consideration of your agreement that, for a period of two\n(2) years after the date of this letter agreement, you and your affiliates shall not (and you and your affiliates shall not advise, assist or encourage\nothers to), directly or indirectly, acting alone or in concert with others, unless specifically requested in writing in advance by the Board of\nDirectors of the Company:\n(a) acquire, offer to acquire, or agree to acquire or offer to acquire (or request permission to do so or to make any proposal in such\nregards), directly or indirectly, by purchase or otherwise, beneficial ownership of the Company or any affiliate thereof or any of the assets\nor businesses of the Company or any affiliate thereof or any securities issued by the Company or any affiliate thereof;\n(b) solicit, make, encourage or in any way participate in the solicitation of, directly or indirectly, any proxies or consents, including,\nwithout limitation, proxies or consents as to voting matters, with respect to any securities of the Company, or otherwise seek to advise or\ninfluence any person with respect to the voting of any securities of the Company;\n(c) offer, seek or propose any merger, consolidation, business combination, recapitalization, restructuring or other extraordinary\ntransaction involving the Company or its affiliates or any securities, assets or businesses of the Company or its affiliates;\n(d) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any\nextraordinary transaction involving the Company or its affiliates or any securities, assets or businesses of the Company or its affiliates;\n(e) seek or propose to influence control or influence in any manner the Company’s management, Board of Directors or policies;\n(f) disclose any intention, plan or arrangement inconsistent with the foregoing;\n(g) request the Company, its Board of Directors or any of its Representatives, directly or indirectly, to amend or waive any provision\nof this Paragraph 12;\n(h) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing,\nincluding, without limitation, forming, joining or in any way participating in any “group” (as defined in Section 13(d)(3) of the Securities\nExchange Act of 1934, as amended) in connection with any of the foregoing; or\n(i) take any action that might require the Company to make a public announcement regarding any of the foregoing, seek or request\npermission to do any of the foregoing, or make or seek permission to make any public announcement with respect to any of the foregoing.\nIf, at any time during such period, you are approached by any third party concerning a proposal involving any of the matters covered by clauses\n(a) through (i) above or your or any third party’s participation in a transaction involving any securities, assets or businesses of the Company or its\naffiliates, then you shall promptly inform us of the nature of such contact and the parties thereto. The term “beneficial ownership” is used as\ndefined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended, except that references to “securities” shall include: (i) securities,\n(ii) rights or options to own or acquire any securities (whether such right or option is exercisable immediately or only after the passage of time or\nupon the satisfaction of one or more conditions (whether or not within the control of such person), compliance with regulatory requirements or\notherwise) and (iii) any other economic exposure to securities, including through any derivative transaction that gives any such person or any of\nsuch person’s affiliates the economic equivalent of ownership of an amount of securities due to the fact that the value of the derivative is\nexplicitly determined by reference to the price or value of securities, or which provides such person or any of such person’s affiliates an\nopportunity, directly or indirectly, to profit, or to share in any profit, derived from any increase in the value of securities, in any case, without\nregard to whether (A) such derivative conveys any voting rights in securities to such person or any of such person’s affiliates,\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 6\n(B) the derivative is required to be, or capable of being, settled through delivery of securities or (C) such person or any of such person’s affiliates\nmay have entered into other transactions that hedge the economic effect of such beneficial ownership of securities.\n13. Without prejudice to the rights and remedies otherwise available to us, you agree that money damages would not be a sufficient remedy\nfor any breach or threatened breach of this letter agreement by you or any of your Representatives and that we shall be entitled to specific\nperformance and to injunctive or other equitable relief as remedies if you or any of your Representatives breach or threaten to breach any of the\nprovisions of this letter agreement (including any act or omission by any of your Representatives that, if committed by you, would constitute a\nbreach of this letter agreement). You hereby waive any requirement for the securing or posting of any bond in connection with any such remedy.\n14. You acknowledge that no failure or delay by us in exercising any right, power or privilege under this letter agreement shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or\nprivilege under this letter agreement.\n15. This letter agreement shall be governed by and construed in accordance with the laws of the State of Delaware, excluding any choice of\nlaw rules that may direct the application of the laws of another jurisdiction. You expressly agree that any action brought pursuant to this letter\nagreement shall be brought, heard and determined exclusively in the United States Federal District Court for the District of Delaware, and you\nconsent to personal and subject matter jurisdiction and venue in such court and waive and relinquish all right to attack the suitability or\nconvenience of such venue or forum. You waive personal service of any and all process in any such action and consent to all such service of\nprocess made by mail or messenger to the address specified on the first page of this letter agreement. You acknowledge that all directions issued\nby the forum court, including, without limitation, all injunctions and other decrees, shall be binding and enforceable in all jurisdictions.\n16. This letter agreement shall bind and impose obligations upon any of your parent, subsidiary, sibling and other affiliates to which the\nProprietary Information is disseminated. Any assignment of this letter agreement by you without our prior written consent shall be void and\nwithout legal effect. This letter agreement supersedes all prior agreements, and constitutes a complete and exclusive statement of the terms of the\nagreement, between the parties with respect to its subject matter. There have been and are no agreements, representations or warranties between\nthe parties with respect to the subject matter of this letter agreement other than those set forth or provided for in this letter agreement. No\nmodification of this letter agreement or waiver of the terms and conditions hereof shall be binding upon you or us, unless in a writing executed\nby each of you and us. This letter agreement may be executed by signatures exchanged via facsimile or other electronic means and in one or\nmore counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.\n17. This letter agreement shall take effect as of the date hereof and, except as otherwise expressly set forth in this letter agreement, shall\nremain in effect for a period of three (3) years, provided that your and your Representatives’ obligations under this letter agreement with respect\nto any Proprietary Information that constitutes a trade secret under applicable law shall continue until such Proprietary Information no longer\nconstitutes a trade secret under applicable law.\n[Signature page follows]\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 7\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter enclosed\nherewith.\nMAGNETEK, INC.\nBy: /s/ Scott S. Cramer\nName: Scott S. Cramer\nTitle: VP, General Counsel & Secretary\nACCEPTED AND AGREED:\nColumbus McKinnon Corporation\nBy: /s/ Alan S. Korman\nName: Alan S. Korman\nTitle: VP, General Counsel & Secretary EX-99.D.3 9 d70867dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nApril 2, 2015\nPERSONAL AND CONFIDENTIAL\nAlan S. Korman\nVice President, General Counsel\n& Secretary\nColumbus McKinnon Corporation\n140 John James Audubon Parkway\nAmherst, New York 14228\nDear Mr. Korman:\nTo allow you to evaluate a possible transaction (the "Potential Transaction") involving Magnetek, Inc. (the "Company.") and/or its\nsecurities, we are prepared to provide you, upon your execution and delivery to us of this letter agreement, with access to information about the\nproperties and operations of the Company that we consider confidential and proprietary in nature. All information about the Company furnished\nby us or our Representatives (as defined below), or that you or your Representatives learn through access that we grant to our facilities,\nproperties or records, whether such information is furnished or such access is provided before, on or after the date of this letter agreement,\nwhether oral or written and regardless of the manner in which it is furnished or such access is provided, is referred to in this letter agreement as\n"Proprietary Information."' Notwithstanding the foregoing, Proprietary Information does not include information that (a) is or becomes generally\navailable\nto\nthe\npublic\nother\nthan\nas\na\nresult\nof\na\ndisclosure\nby\nyou\nor\nyour\nRepresentatives,\n(b)\nwas\nknown\nto\nyou\non\na\nnonconfidential\nbasis\nprior to its disclosure by us or our Representatives, provided that the source of such information was not, to your knowledge after reasonable\ninquiry, bound by any confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to us or any of our\nRepresentatives, (c) becomes available to you on a nonconfidential basis from a person other than us or our Representatives who is not, to your\nknowledge after reasonable inquiry, bound by any confidentiality agreement with or other contractual, legal or fiduciary obligation of\nconfidentiality to us or any of our Representatives or (d) is independently developed by you or your Representatives without the use of\nor\nreference to any Proprietary Information. All Proprietary Information furnished by us or our Representatives pursuant to this letter agreement\nshall be and remain the property of the Company. As used in this letter agreement, (i) the term "person" shall be broadly interpreted to include,\nwithout limitation, any corporation, general or limited partnership, limited liability company, joint venture or other entity and any individual, and\n(ii) the term "Representative" means, as to any person, such person's affiliates and its and their directors, officers, employees, agents, advisors\n(including, without limitation, financial advisors, counsel and accountants), controlling persons and debt and equity financing sources; provided,\nhowever, that, with respect to your debt and equity financing sources, such persons shall be considered Representatives only from and after the\ndate they agree in writing to be bound by the confidentiality and non-use restrictions of this letter agreement as if a party hereto and only to the\nextent the Company has given its prior written consent for such persons to receive Proprietary Information.\nAs a condition to receiving any Proprietary Information from us, you agree as follows:\n1. You shall (a) keep all Proprietary Information confidential and not disclose or reveal any Proprietary Information to any person other\nthan your Representatives who are actively and directly participating in your evaluation of the Potential Transaction or who otherwise need to\nknow the Proprietary Information for the purpose of evaluating or consummating the Potential Transaction and who agree in writing, prior to any\nProprietary Information being made available to them, to be bound by the confidentiality and non-use restrictions of this letter agreement, (b) use\nthe Proprietary Information only for the purpose of evaluating or consummating the Potential Transaction (and not for any other purpose,\nincluding, without limitation, in furtherance of your business or in any way directly or indirectly detrimental to the Company), (c) not disclose to\nany person any information about the Potential Transaction or the terms or conditions or any other facts relating thereto, including, without\nlimitation,\nthe\nfact\nthat\ndiscussions\nare\ntaking\nplace\nwith\nrespect\nthereto\nor\nthe\nstatus\nthereof\nor\nthe\nfact\nthat\nProprietary\nInformation\nhas\nbeen\nmade available to you or your Representatives, except that you may disclose such information to your Representatives who are actively and\ndirectly participating in your\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 2\nevaluation of the Potential Transaction or who otherwise need to know such information for the purpose of evaluating or consummating the\nPotential Transaction, and (d) cooperate in good faith in any manner that we reasonably request with respect to the implementation of any\nprotective procedures that we deem advisable by reason of the antitrust or competition laws of any jurisdiction.\n2.\nIf\nyou\nor\nyour\nRepresentatives\nare\nrequested\nor\nrequired\n(by\noral\nquestion\nor\nrequest\nfor\ninformation\nor\ndocuments\nin\nlegal\nproceedings,\ninterrogatories, subpoena, civil investigation demand or similar process or by reason of the express requirements of federal or state securities\nlaws or of any recognized stock exchange on which your securities are traded) to disclose any Proprietary Information or any other information\nrelating to the Company and/or the Potential Transaction, then you shall provide us with prompt written notice of the existence, terms and\ncircumstances surrounding such request or requirement to enable us (a) to seek an appropriate protective order or other remedy, (b) to consult\nwith you with respect to our taking steps to resist or narrow the scope of such request or legal process and/or (c) to waive compliance, in whole\nor in part, with the terms of this letter agreement. If, in the absence of a protective order or a waiver under this letter agreement, you or any of\nyour Representatives is nonetheless, based on the written advice of your counsel, compelled to disclose Proprietary Information to any tribunal or\nelse stand liable for contempt, then you or such Representative may disclose such Proprietary Information to the tribunal, provided that (i) to the\nextent practical in light of the circumstances, we are given the opportunity to approve, and have approved, any written disclosure of the\nProprietary Information (which approval shall not be unreasonably withheld, delayed or conditioned) and (ii) you use your reasonable best efforts\nto obtain an order or other reasonable assurance that confidential treatment will be accorded to such portion of the Proprietary Information\nrequired to be disclosed as we may designate in our sole discretion. Subject to the foregoing, you or such Representative shall not be liable for\nthe disclosure to such tribunal to the extent such disclosure is compelled (it being understood, however, that if such disclosure was caused or\nresulted from a previous disclosure by you or your Representatives not permitted under this letter agreement, then the other terms and provisions\nof this letter agreement shall continue in full force and effect and shall be enforceable by us as to such disclosure or disclosures not permitted\nunder this letter agreement that resulted in the compelled disclosure).\n3.\nYou shall enforce the terms of this letter agreement, including, without limitation, the nondisclosure, nonuse and other obligations\nregarding Proprietary Information, as to your Representatives. You shall take all reasonable action, legal or otherwise, necessary (a) to cause your\nRepresentatives to comply with the terms of this letter agreement and (b) to prevent unauthorized disclosure or use of the Proprietary Information\nby any of your Representatives (including, without limitation, actions that you would take to protect your own trade secrets and confidential\ninformation). Any failure by any of your Representatives to comply with this letter agreement, or any act or omission by any of your\nRepresentatives that, if committed by you, would constitute a breach of this letter agreement, shall be deemed to be a breach of this letter\nagreement by you for which you shall be jointly and severally responsible with your relevant Representatives. At our request, you shall supply\nto\nus a list of your Representatives to whom you have made Proprietary Information available.\n4. You acknowledge that certain of the Proprietary Information to which you or your Representatives may be given access pursuant to this\nletter agreement is information to which the attorney-client or similar privilege attaches (collectively, the "Privileged Information"). You agree\nthat access to such Privileged Information is being provided solely for the purposes set forth in this letter agreement and that such access is not\nintended and should not be interpreted as a waiver of any attorney-client or similar privilege in respect of the Privileged Information or of any\nright to assert or claim any attorney-client or similar privilege in respect of the Privileged Information. To the extent any attorney-client or\nsimilar privilege is deemed waived notwithstanding the foregoing, such waiver shall be a limited waiver in favor of you, solely for the purposes\nand on the terms set forth in this letter agreement. Upon our request, you shall claim or assert, or cooperate in good faith to claim or assert, any\nattorney-client or similar privilege in respect of the Privileged Information. The provisions of this paragraph shall survive the expiration or\ntermination of this letter agreement.\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 3\n5. If you determine that you do not wish to proceed with the Potential Transaction, then you shall promptly provide us with written notice\nof\nthat decision. In that case, or if the Potential Transaction is not consummated by you or if we, in our sole discretion, at any time so request,\nthen you shall promptly (and in any case within ten (10) days after our request) (a) return or cause to be returned to us all written Proprietary\nInformation (and all copies thereof) that you or any of your Representatives possess or control and delete or cause to be deleted all electronic\nProprietary\nInformation\nthat\nyou\nor\nany\nof\nyour\nRepresentatives\npossess\nor\ncontrol,\n(b)\ndestroy\nor\ncause\nto\nbe\ndestroyed\nall\ncopies,\nextracts\nor\nother reproductions (including computer tapes, discs and other electronic storage means or oral reproductions) in whole or in part of such written\n(or electronic) materials, (c) destroy or cause to be destroyed all copies of any analyses, compilations, studies or other documents prepared by\nyou or your Representatives or for your use containing or reflecting any Proprietary Information and (d) deliver to us a written certificate,\nexecuted on your behalf by an authorized officer supervising the return, deletion and destruction of such materials, certifying, representing and\nwarranting to us that all materials required to be returned, deleted or destroyed pursuant to this letter agreement have been returned, deleted\nor\ndestroyed in accordance with the terms of this letter agreement, provided that such certificate, to the extent relating to materials prepared by your\nRepresentatives, may be based on a similar certificate obtained from your Representatives. Notwithstanding the foregoing, your outside counsel,\nwhose identity you disclose to us in writing, may retain one (1) copy of the materials described in clause (a) above for archival purposes as\nrequired by applicable law. Where this letter agreement requires or permits materials to be deleted or destroyed, in the case of materials in\nany\nelectronic format, compliance with such provision means that such materials shall be permanently erased from all computer hard drives, servers\nand similar media; provided, however, that such provision shall not require any action to delete or erase such materials from any disaster\nrecovery tapes or other back-up media of any record retention or computer storage system so long as you take such reasonable actions as are\nreasonably likely to prevent access on a permanent basis to such materials by any person other than information technology and other\nadministrative employees who are responsible for maintaining those disaster recovery tapes and other back-up media. The return, deletion and/or\ndestruction of materials shall not relieve you or any of your Representatives of any confidentiality, nonuse or other obligations regarding\nProprietary Information, whether arising under this letter agreement, applicable law or otherwise.\n6. Without our prior written consent, you shall not, and you shall cause your affiliates not to, for a period of two (2) years from the date of\nthis letter agreement, take any action to solicit, induce or otherwise offer employment to, engage in discussions regarding employment with, or\nactually hire, any person who is now employed by us or any of our affiliates and (a) with whom you have any contact or about whom you obtain\nany Proprietary Information as a result of your evaluation of, or otherwise in connection with, the Potential Transaction or (b) who performs\nemployment services in an executive, management or engineering position Notwithstanding the foregoing, nothing in this paragraph shall\nprohibit you from soliciting, inducing or otherwise offering employment to any employee of ours or any of our affiliates (i) who responds to a\npublic advertisement of general solicitation placed by you and not targeted at our employees, (ii) whose employment with us and each of our\naffiliates has terminated for a period of at least ninety (90) consecutive days prior to any contact with such employee initiated by you or any of\nyour\naffiliates\nor\n(iii)\nwho\nis\nsolicited\nby\nan\nemployee\nof\nan\nexecutive\nsearch\nfirm\nacting\non\nyour\n(or\nany\nof\nyour\naffiliates')\nbehalf\nwhere\nyou\ndid\nnot identify to such search firm the name of such employee and you did not direct, instruct or encourage the solicitation of such specific\nemployee.\n7. You agree that neither we nor our Representatives, nor our or our Representatives' officers, directors, employees, agents or controlling\npersons, shall be deemed to make, or shall be responsible for, any express or implied representation or warranty as to the accuracy or\ncompleteness of any Proprietary Information, and you agree that none of such persons shall have any liability to you or any of your\nRepresentatives relating to or arising from your or their use of any Proprietary Information, for the content thereof, for any errors therein or for\nany omissions therefrom. You also agree that neither we nor any of our Representatives shall have any obligation to update, supplement or\namend the Proprietary Information as a result of subsequent events or developments or otherwise. You further agree that you are not entitled\nto\nrely on the accuracy or completeness of any Proprietary\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 4\nInformation and that you shall be entitled to rely solely on such representations and warranties regarding Proprietary Information as may be made\nto\nyou\nin\nany\nfinal\ndefinitive\nagreement\nrelating\nto\nthe\nPotential\nTransaction,\nsubject\nto\nthe\nterms\nand\nconditions\nof\nsuch\nagreement.\nFor\npurposes\nof this letter agreement, the term "final definitive agreement" does not include any executed letter of intent or other preliminary written\nagreement or any written or oral acceptance of an offer or bid.\n8. You acknowledge that no contract or agreement providing for the Potential Transaction or any similar transaction shall be deemed to\nexist between you and us unless and until a final definitive agreement relating to the Potential Transaction has been executed and delivered by\nyou and us. You hereby waive, in advance, any and all claims (including, without limitation, breach of contract claims, but excluding any claims\nunder any other written agreements between you and us expressly intended to be binding) in connection with any such transaction unless and\nuntil you and we have executed and delivered such a final definitive agreement. You further acknowledge that, unless and until such a final\ndefinitive agreement has been executed and delivered, neither we nor our Representatives shall have any legal obligation of any kind whatsoever\nwith respect to any such transaction by virtue of this letter agreement or any other written or oral expression with respect to such transaction\n(except for obligations under any other written agreements between you and us expressly intended to be binding).\n9. You agree that (a) we and our Representatives may conduct the process that may or may not result in the Potential Transaction in such a\nmanner as we, in our sole discretion, may determine, including, without limitation, negotiating and entering into a final definitive agreement with\nany third party without notice to you, (b) we reserve the right to change, in our sole discretion, at any time and without notice to you, the\nprocedures relating to our and your consideration of the Potential Transaction, including, without limitation, terminating all further discussions\nwith you and demanding that you comply with the provisions of Paragraph 5, and (c) unless and until a final definitive agreement concerning the\nPotential Transaction is executed and delivered by you and us, neither the Company nor any of its Representatives shall have any liability to you\narising out of or relating to the Potential Transaction or any similar transaction, whether by virtue of this letter agreement, any other written or\noral\nexpression\nwith\nrespect\nto\nthe\nPotential\nTransaction\nor\notherwise.\nWithout\nlimitation,\nyou\nagree\nthat\nwe,\nin\nour\nsole\ndiscretion,\nshall\nhave\nthe\nright at any time to terminate your investigation of the Company and to reject any or all proposals relating to the Potential Transaction for any\nreason without explanation and without liability. The investigation of the Company by you and your Representatives is entirely at your own\nexpense and risk.\n10. Except as otherwise expressly set forth in written instructions that we may provide to you and except for ordinary course business\ncommunications unrelated to the Potential Transaction, you shall not, and you shall cause your Representatives not to, initiate or maintain contact\nwith any of our or our affiliates' directors, officers, employees or agents, other than Simon Kubbies of Goldman Sachs Group, Inc. or his\ndesignees, regarding the Potential Transaction. Without limitation, you agree that, except as otherwise expressly set forth in written instructions\nthat we may provide to you, (a) Simon Kubbies or his designees shall arrange for the appropriate contacts for due diligence relating to the\nPotential Transaction and (b) all communications regarding the Potential Transaction, all requests for additional information and all requests for\naccess to facilities or management meetings, in each case, to the extent related to the Potential Transaction, shall be submitted and directed\nto\nSimon Kubbies or his designees.\n11. You acknowledge that you are aware, and you shall advise your Representatives who are informed of the matters that are the subject of\nthis letter agreement, that the United States securities laws prohibit any person who is aware of material, nonpublic information concerning\na\ncompany from purchasing or selling securities of that company or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such\ninformation.\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 5\n12. You agree that the Proprietary Information is being furnished to you in consideration of your agreement that, for a period of two\n(2)\nyears\nafter\nthe\ndate\nof\nthis\nletter\nagreement,\nyou\nand\nyour\naffiliates\nshall\nnot\n(and\nyou\nand\nyour\naffiliates\nshall\nnot\nadvise,\nassist\nor\nencourage\nothers to), directly or indirectly, acting alone or in concert with others, unless specifically requested in writing in advance by the Board of\nDirectors of the Company:\n(a) acquire, offer to acquire, or agree to acquire or offer to acquire (or request permission to do so or to make any proposal in such\nregards), directly or indirectly, by purchase or otherwise, beneficial ownership of the Company or any affiliate thereof or any of the assets\nor businesses of the Company or any affiliate thereof or any securities issued by the Company or any affiliate thereof;\n(b) solicit, make, encourage or in any way participate in the solicitation of, directly or indirectly, any proxies or consents, including,\nwithout limitation, proxies or consents as to voting matters, with respect to any securities of the Company, or otherwise seek to advise or\ninfluence any person with respect to the voting of any securities of the Company;\n(c) offer, seek or propose any merger, consolidation, business combination, recapitalization, restructuring or other extraordinary\ntransaction involving the Company or its affiliates or any securities, assets or businesses of the Company or its affiliates;\n(d) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any\nextraordinary transaction involving the Company or its affiliates or any securities, assets or businesses of the Company or its affiliates;\n(e) seek or propose to influence control or influence in any manner the Company's management, Board of Directors or policies;\n(f) disclose any intention, plan or arrangement inconsistent with the foregoing;\n(g) request the Company, its Board of Directors or any of its Representatives, directly or indirectly, to amend or waive any provision\nof this Paragraph 12;\n(h) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing,\nincluding, without limitation, forming, joining or in any way participating in any "group" (as defined in Section 13(d)(3) of the Securities\nExchange Act of 1934, as amended) in connection with any of the foregoing; or\n(i) take any action that might require the Company to make a public announcement regarding any of the foregoing, seek or request\npermission to do any of the foregoing, or make or seek permission to make any public announcement with respect to any of the foregoing.\nIf, at any time during such period, you are approached by any third party concerning a proposal involving any of the matters covered by clauses\n(a) through (i) above or your or any third party's participation in a transaction involving any securities, assets or businesses of the Company or its\naffiliates, then you shall promptly inform us of the nature of such contact and the parties thereto. The term "beneficial ownership" is used as\ndefined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended, except that references to "securities" shall include: (i) securities,\n(ii) rights or options to own or acquire any securities (whether such right or option is exercisable immediately or only after the passage of time or\nupon the satisfaction of one or more conditions (whether or not within the control of such person), compliance with regulatory requirements or\notherwise) and (iii) any other economic exposure to securities, including through any derivative transaction that gives any such person or any of\nsuch person's affiliates the economic equivalent of ownership of an amount of securities due to the fact that the value of the derivative is\nexplicitly determined by reference to the price or value of securities, or which provides such person or any of such person's affiliates an\nopportunity, directly or indirectly, to profit, or to share in any profit, derived from any increase in the value of securities, in any case, without\nregard to whether (A) such derivative conveys any voting rights in securities to such person or any of such person's affiliates,\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 6\n(B) the derivative is required to be, or capable of being, settled through delivery of securities or (C) such person or any of such person's affiliates\nmay have entered into other transactions that hedge the economic effect of such beneficial ownership of securities.\n13. Without prejudice to the rights and remedies otherwise available to us, you agree that money damages would not be a sufficient remedy\nfor any breach or threatened breach of this letter agreement by you or any of your Representatives and that we shall be entitled to specific\nperformance and to injunctive or other equitable relief as remedies if you or any of your Representatives breach or threaten to breach any of the\nprovisions of this letter agreement (including any act or omission by any of your Representatives that, if committed by you, would constitute a\nbreach of this letter agreement). You hereby waive any requirement for the securing or posting of any bond in connection with any such remedy.\n14. You acknowledge that no failure or delay by us in exercising any right, power or privilege under this letter agreement shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or\nprivilege under this letter agreement.\n15. This letter agreement shall be governed by and construed in accordance with the laws of the State of Delaware, excluding any choice of\nlaw rules that may direct the application of the laws of another jurisdiction You expressly agree that any action brought pursuant to this letter\nagreement shall be brought, heard and determined exclusively in the United States Federal District Court for the District of Delaware, and you\nconsent to personal and subject matter jurisdiction and venue in such court and waive and relinquish all right to attack the suitability\nor\nconvenience of such venue or forum. You waive personal service of any and all process in any such action and consent to all such service of\nprocess made by mail or messenger to the address specified on the first page of this letter agreement. You acknowledge that all directions issued\nby the forum court, including, without limitation, all injunctions and other decrees, shall be binding and enforceable in all jurisdictions.\n16. This letter agreement shall bind and impose obligations upon any of your parent, subsidiary, sibling and other affiliates to which the\nProprietary Information is disseminated. Any assignment of this letter agreement by you without our prior written consent shall be void and\nwithout legal effect. This letter agreement supersedes all prior agreements, and constitutes a complete and exclusive statement of the terms of\nthe\nagreement, between the parties with respect to its subject matter. There have been and are no agreements, representations or warranties between\nthe parties with respect to the subject matter of this letter agreement other than those set forth or provided for in this letter agreement. No\nmodification of this letter agreement or waiver of the terms and conditions hereof shall be binding upon you or us, unless in a writing executed\nby each of you and us. This letter agreement may be executed by signatures exchanged via facsimile or other electronic means and in one or\nmore counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.\n17. This letter agreement shall take effect as of the date hereof and, except as otherwise expressly set forth in this letter agreement, shall\nremain in effect for a period of three (3) years, provided that your and your Representatives' obligations under this letter agreement with respect\nto\nany Proprietary Information that constitutes a trade secret under applicable law shall continue until such Proprietary Information no longer\nconstitutes a trade secret under applicable law.\n[Signature page follows]\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 7\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter enclosed\nherewith.\nMAGNETEK, INC.\nBy:\n/s/ Scott S. Cramer\nName: Scott S. Cramer\nTitle: VP, General Counsel & Secretary\nACCEPTED AND AGREED:\nColumbus McKinnon Corporation\nBy:\n/s/ Alan S. Korman\nName: Alan S. Korman\nTitle: VP, General Counsel & Secretary EX-99.D.3 9 d70867dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nApril 2, 2015\nPERSONAL AND CONFIDENTIAL\nAlan S. Korman\nVice President, General Counsel\n& Secretary\nColumbus McKinnon Corporation\n140 John James Audubon Parkway\nAmherst, New York 14228\nDear Mr. Korman:\nTo allow you to evaluate a possible transaction (the “Potential Transaction”) involving Magnetek, Inc. (the “Company”) and/or its\nsecurities, we are prepared to provide you, upon your execution and delivery to us of this letter agreement, with access to information about the\nproperties and operations of the Company that we consider confidential and proprietary in nature. All information about the Company furnished\nby us or our Representatives (as defined below), or that you or your Representatives learn through access that we grant to our facilities,\nproperties or records, whether such information is furnished or such access is provided before, on or after the date of this letter agreement,\nwhether oral or written and regardless of the manner in which it is furnished or such access is provided, is referred to in this letter agreement as\n“Proprietary Information.” Notwithstanding the foregoing, Proprietary Information does not include information that (a) is or becomes generally\navailable to the public other than as a result of a disclosure by you or your Representatives, (b) was known to you on a nonconfidential basis\nprior to its disclosure by us or our Representatives, provided that the source of such information was not, to your knowledge after reasonable\ninquiry, bound by any confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to us or any of our\nRepresentatives, (c) becomes available to you on a nonconfidential basis from a person other than us or our Representatives who is not, to your\nknowledge after reasonable inquiry, bound by any confidentiality agreement with or other contractual, legal or fiduciary obligation of\nconfidentiality to us or any of our Representatives or (d) is independently developed by you or your Representatives without the use of or\nreference to any Proprietary Information. All Proprietary Information furnished by us or our Representatives pursuant to this letter agreement\nshall be and remain the property of the Company. As used in this letter agreement, (i) the term “person” shall be broadly interpreted to include,\nwithout limitation, any corporation, general or limited partnership, limited liability company, joint venture or other entity and any individual, and\n(ii) the term “Representative” means, as to any person, such person’s affiliates and its and their directors, officers, employees, agents, advisors\n(including, without limitation, financial advisors, counsel and accountants), controlling persons and debt and equity financing sources; provided,\nhowever, that, with respect to your debt and equity financing sources, such persons shall be considered Representatives only from and after the\ndate they agree in writing to be bound by the confidentiality and non-use restrictions of this letter agreement as if a party hereto and only to the\nextent the Company has given its prior written consent for such persons to receive Proprietary Information.\nAs a condition to receiving any Proprietary Information from us, you agree as follows:\n1. You shall (a) keep all Proprietary Information confidential and not disclose or reveal any Proprietary Information to any person other\nthan your Representatives who are actively and directly participating in your evaluation of the Potential Transaction or who otherwise need to\nknow the Proprietary Information for the purpose of evaluating or consummating the Potential Transaction and who agree in writing, prior to any\nProprietary Information being made available to them, to be bound by the confidentiality and non-use restrictions of this letter agreement, (b) use\nthe Proprietary Information only for the purpose of evaluating or consummating the Potential Transaction (and not for any other purpose,\nincluding, without limitation, in furtherance of your business or in any way directly or indirectly detrimental to the Company), (c) not disclose to\nany person any information about the Potential Transaction or the terms or conditions or any other facts relating thereto, including, without\nlimitation, the fact that discussions are taking place with respect thereto or the status thereof or the fact that Proprietary Information has been\nmade available to you or your Representatives, except that you may disclose such information to your Representatives who are actively and\ndirectly participating in your\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 2\nevaluation of the Potential Transaction or who otherwise need to know such information for the purpose of evaluating or consummating the\nPotential Transaction, and (d) cooperate in good faith in any manner that we reasonably request with respect to the implementation of any\nprotective procedures that we deem advisable by reason of the antitrust or competition laws of any jurisdiction.\n2. If you or your Representatives are requested or required (by oral question or request for information or documents in legal proceedings,\ninterrogatories, subpoena, civil investigation demand or similar process or by reason of the express requirements of federal or state securities\nlaws or of any recognized stock exchange on which your securities are traded) to disclose any Proprietary Information or any other information\nrelating to the Company and/or the Potential Transaction, then you shall provide us with prompt written notice of the existence, terms and\ncircumstances surrounding such request or requirement to enable us (a) to seek an appropriate protective order or other remedy, (b) to consult\nwith you with respect to our taking steps to resist or narrow the scope of such request or legal process and/or (c) to waive compliance, in whole\nor in part, with the terms of this letter agreement. If, in the absence of a protective order or a waiver under this letter agreement, you or any of\nyour Representatives is nonetheless, based on the written advice of your counsel, compelled to disclose Proprietary Information to any tribunal or\nelse stand liable for contempt, then you or such Representative may disclose such Proprietary Information to the tribunal, provided that (i) to the\nextent practical in light of the circumstances, we are given the opportunity to approve, and have approved, any written disclosure of the\nProprietary Information (which approval shall not be unreasonably withheld, delayed or conditioned) and (ii) you use your reasonable best efforts\nto obtain an order or other reasonable assurance that confidential treatment will be accorded to such portion of the Proprietary Information\nrequired to be disclosed as we may designate in our sole discretion. Subject to the foregoing, you or such Representative shall not be liable for\nthe disclosure to such tribunal to the extent such disclosure is compelled (it being understood, however, that if such disclosure was caused or\nresulted from a previous disclosure by you or your Representatives not permitted under this letter agreement, then the other terms and provisions\nof this letter agreement shall continue in full force and effect and shall be enforceable by us as to such disclosure or disclosures not permitted\nunder this letter agreement that resulted in the compelled disclosure).\n3. You shall enforce the terms of this letter agreement, including, without limitation, the nondisclosure, nonuse and other obligations\nregarding Proprietary Information, as to your Representatives. You shall take all reasonable action, legal or otherwise, necessary (a) to cause your\nRepresentatives to comply with the terms of this letter agreement and (b) to prevent unauthorized disclosure or use of the Proprietary Information\nby any of your Representatives (including, without limitation, actions that you would take to protect your own trade secrets and confidential\ninformation). Any failure by any of your Representatives to comply with this letter agreement, or any act or omission by any of your\nRepresentatives that, if committed by you, would constitute a breach of this letter agreement, shall be deemed to be a breach of this letter\nagreement by you for which you shall be jointly and severally responsible with your relevant Representatives. At our request, you shall supply to\nus a list of your Representatives to whom you have made Proprietary Information available.\n4. You acknowledge that certain of the Proprietary Information to which you or your Representatives may be given access pursuant to this\nletter agreement is information to which the attorney-client or similar privilege attaches (collectively, the “Privileged Information”). You agree\nthat access to such Privileged Information is being provided solely for the purposes set forth in this letter agreement and that such access is not\nintended and should not be interpreted as a waiver of any attorney-client or similar privilege in respect of the Privileged Information or of any\nright to assert or claim any attorney-client or similar privilege in respect of the Privileged Information. To the extent any attorney-client or\nsimilar privilege is deemed waived notwithstanding the foregoing, such waiver shall be a limited waiver in favor of you, solely for the purposes\nand on the terms set forth in this letter agreement. Upon our request, you shall claim or assert, or cooperate in good faith to claim or assert, any\nattorney-client or similar privilege in respect of the Privileged Information. The provisions of this paragraph shall survive the expiration or\ntermination of this letter agreement.\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 3\n5. If you determine that you do not wish to proceed with the Potential Transaction, then you shall promptly provide us with written notice\nof that decision. In that case, or if the Potential Transaction is not consummated by you or if we, in our sole discretion, at any time so request,\nthen you shall promptly (and in any case within ten (10) days after our request) (a) return or cause to be returned to us all written Proprietary\nInformation (and all copies thereof) that you or any of your Representatives possess or control and delete or cause to be deleted all electronic\nProprietary Information that you or any of your Representatives possess or control, (b) destroy or cause to be destroyed all copies, extracts or\nother reproductions (including computer tapes, discs and other electronic storage means or oral reproductions) in whole or in part of such written\n(or electronic) materials, (c) destroy or cause to be destroyed all copies of any analyses, compilations, studies or other documents prepared by\nyou or your Representatives or for your use containing or reflecting any Proprietary Information and (d) deliver to us a written certificate,\nexecuted on your behalf by an authorized officer supervising the return, deletion and destruction of such materials, certifying, representing and\nwarranting to us that all materials required to be returned, deleted or destroyed pursuant to this letter agreement have been returned, deleted or\ndestroyed in accordance with the terms of this letter agreement, provided that such certificate, to the extent relating to materials prepared by your\nRepresentatives, may be based on a similar certificate obtained from your Representatives. Notwithstanding the foregoing, your outside counsel,\nwhose identity you disclose to us in writing, may retain one (1) copy of the materials described in clause (a) above for archival purposes as\nrequired by applicable law. Where this letter agreement requires or permits materials to be deleted or destroyed, in the case of materials in any\nelectronic format, compliance with such provision means that such materials shall be permanently erased from all computer hard drives, servers\nand similar media; provided, however, that such provision shall not require any action to delete or erase such materials from any disaster\nrecovery tapes or other back-up media of any record retention or computer storage system so long as you take such reasonable actions as are\nreasonably likely to prevent access on a permanent basis to such materials by any person other than information technology and other\nadministrative employees who are responsible for maintaining those disaster recovery tapes and other back-up media. The return, deletion and/or\ndestruction of materials shall not relieve you or any of your Representatives of any confidentiality, nonuse or other obligations regarding\nProprietary Information, whether arising under this letter agreement, applicable law or otherwise.\n6. Without our prior written consent, you shall not, and you shall cause your affiliates not to, for a period of two (2) years from the date of\nthis letter agreement, take any action to solicit, induce or otherwise offer employment to, engage in discussions regarding employment with, or\nactually hire, any person who is now employed by us or any of our affiliates and (a) with whom you have any contact or about whom you obtain\nany Proprietary Information as a result of your evaluation of, or otherwise in connection with, the Potential Transaction or (b) who performs\nemployment services in an executive, management or engineering position. Notwithstanding the foregoing, nothing in this paragraph shall\nprohibit you from soliciting, inducing or otherwise offering employment to any employee of ours or any of our affiliates (i) who responds to a\npublic advertisement of general solicitation placed by you and not targeted at our employees, (ii) whose employment with us and each of our\naffiliates has terminated for a period of at least ninety (90) consecutive days prior to any contact with such employee initiated by you or any of\nyour affiliates or (iii) who is solicited by an employee of an executive search firm acting on your (or any of your affiliates’) behalf where you did\nnot identify to such search firm the name of such employee and you did not direct, instruct or encourage the solicitation of such specific\nemployee.\n7. You agree that neither we nor our Representatives, nor our or our Representatives’ officers, directors, employees, agents or controlling\npersons, shall be deemed to make, or shall be responsible for, any express or implied representation or warranty as to the accuracy or\ncompleteness of any Proprietary Information, and you agree that none of such persons shall have any liability to you or any of your\nRepresentatives relating to or arising from your or their use of any Proprietary Information, for the content thereof, for any errors therein or for\nany omissions therefrom. You also agree that neither we nor any of our Representatives shall have any obligation to update, supplement or\namend the Proprietary Information as a result of subsequent events or developments or otherwise. You further agree that you are not entitled to\nrely on the accuracy or completeness of any Proprietary\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 4\nInformation and that you shall be entitled to rely solely on such representations and warranties regarding Proprietary Information as may be made\nto you in any final definitive agreement relating to the Potential Transaction, subject to the terms and conditions of such agreement. For purposes\nof this letter agreement, the term “final definitive agreement” does not include any executed letter of intent or other preliminary written\nagreement or any written or oral acceptance of an offer or bid.\n8. You acknowledge that no contract or agreement providing for the Potential Transaction or any similar transaction shall be deemed to\nexist between you and us unless and until a final definitive agreement relating to the Potential Transaction has been executed and delivered by\nyou and us. You hereby waive, in advance, any and all claims (including, without limitation, breach of contract claims, but excluding any claims\nunder any other written agreements between you and us expressly intended to be binding) in connection with any such transaction unless and\nuntil you and we have executed and delivered such a final definitive agreement. You further acknowledge that, unless and until such a final\ndefinitive agreement has been executed and delivered, neither we nor our Representatives shall have any legal obligation of any kind whatsoever\nwith respect to any such transaction by virtue of this letter agreement or any other written or oral expression with respect to such transaction\n(except for obligations under any other written agreements between you and us expressly intended to be binding).\n9. You agree that (a) we and our Representatives may conduct the process that may or may not result in the Potential Transaction in such a\nmanner as we, in our sole discretion, may determine, including, without limitation, negotiating and entering into a final definitive agreement with\nany third party without notice to you, (b) we reserve the right to change, in our sole discretion, at any time and without notice to you, the\nprocedures relating to our and your consideration of the Potential Transaction, including, without limitation, terminating all further discussions\nwith you and demanding that you comply with the provisions of Paragraph 5, and (c) unless and until a final definitive agreement concerning the\nPotential Transaction is executed and delivered by you and us, neither the Company nor any of its Representatives shall have any liability to you\narising out of or relating to the Potential Transaction or any similar transaction, whether by virtue of this letter agreement, any other written or\noral expression with respect to the Potential Transaction or otherwise. Without limitation, you agree that we, in our sole discretion, shall have the\nright at any time to terminate your investigation of the Company and to reject any or all proposals relating to the Potential Transaction for any\nreason without explanation and without liability. The investigation of the Company by you and your Representatives is entirely at your own\nexpense and risk.\n10. Except as otherwise expressly set forth in written instructions that we may provide to you and except for ordinary course business\ncommunications unrelated to the Potential Transaction, you shall not, and you shall cause your Representatives not to, initiate or maintain contact\nwith any of our or our affiliates’ directors, officers, employees or agents, other than Simon Kubbies of Goldman Sachs Group, Inc. or his\ndesignees, regarding the Potential Transaction. Without limitation, you agree that, except as otherwise expressly set forth in written instructions\nthat we may provide to you, (a) Simon Kubbies or his designees shall arrange for the appropriate contacts for due diligence relating to the\nPotential Transaction and (b) all communications regarding the Potential Transaction, all requests for additional information and all requests for\naccess to facilities or management meetings, in each case, to the extent related to the Potential Transaction, shall be submitted and directed to\nSimon Kubbies or his designees.\n11. You acknowledge that you are aware, and you shall advise your Representatives who are informed of the matters that are the subject of\nthis letter agreement, that the United States securities laws prohibit any person who is aware of material, nonpublic information concerning a\ncompany from purchasing or selling securities of that company or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such\ninformation.\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 5\n12. You agree that the Proprietary Information is being furnished to you in consideration of your agreement that, for a period of two\n(2) years after the date of this letter agreement, you and your affiliates shall not (and you and your affiliates shall not advise, assist or encourage\nothers to), directly or indirectly, acting alone or in concert with others, unless specifically requested in writing in advance by the Board of\nDirectors of the Company:\n(a) acquire, offer to acquire, or agree to acquire or offer to acquire (or request permission to do so or to make any proposal in such\nregards), directly or indirectly, by purchase or otherwise, beneficial ownership of the Company or any affiliate thereof or any of the assets\nor businesses of the Company or any affiliate thereof or any securities issued by the Company or any affiliate thereof;\n(b) solicit, make, encourage or in any way participate in the solicitation of, directly or indirectly, any proxies or consents, including,\nwithout limitation, proxies or consents as to voting matters, with respect to any securities of the Company, or otherwise seek to advise or\ninfluence any person with respect to the voting of any securities of the Company;\n(c) offer, seek or propose any merger, consolidation, business combination, recapitalization, restructuring or other extraordinary\ntransaction involving the Company or its affiliates or any securities, assets or businesses of the Company or its affiliates;\n(d) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any\nextraordinary transaction involving the Company or its affiliates or any securities, assets or businesses of the Company or its affiliates;\n(e) seek or propose to influence control or influence in any manner the Company’s management, Board of Directors or policies;\n(f) disclose any intention, plan or arrangement inconsistent with the foregoing;\n(g) request the Company, its Board of Directors or any of its Representatives, directly or indirectly, to amend or waive any provision\nof this Paragraph 12;\n(h) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing,\nincluding, without limitation, forming, joining or in any way participating in any “group” (as defined in Section 13(d)(3) of the Securities\nExchange Act of 1934, as amended) in connection with any of the foregoing; or\n(i) take any action that might require the Company to make a public announcement regarding any of the foregoing, seek or request\npermission to do any of the foregoing, or make or seek permission to make any public announcement with respect to any of the foregoing.\nIf, at any time during such period, you are approached by any third party concerning a proposal involving any of the matters covered by clauses\n(a) through (i) above or your or any third party’s participation in a transaction involving any securities, assets or businesses of the Company or its\naffiliates, then you shall promptly inform us of the nature of such contact and the parties thereto. The term “beneficial ownership” is used as\ndefined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended, except that references to “securities” shall include: (i) securities,\n(ii) rights or options to own or acquire any securities (whether such right or option is exercisable immediately or only after the passage of time or\nupon the satisfaction of one or more conditions (whether or not within the control of such person), compliance with regulatory requirements or\notherwise) and (iii) any other economic exposure to securities, including through any derivative transaction that gives any such person or any of\nsuch person’s affiliates the economic equivalent of ownership of an amount of securities due to the fact that the value of the derivative is\nexplicitly determined by reference to the price or value of securities, or which provides such person or any of such person’s affiliates an\nopportunity, directly or indirectly, to profit, or to share in any profit, derived from any increase in the value of securities, in any case, without\nregard to whether (A) such derivative conveys any voting rights in securities to such person or any of such person’s affiliates,\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 6\n(B) the derivative is required to be, or capable of being, settled through delivery of securities or (C) such person or any of such person’s affiliates\nmay have entered into other transactions that hedge the economic effect of such beneficial ownership of securities.\n13. Without prejudice to the rights and remedies otherwise available to us, you agree that money damages would not be a sufficient remedy\nfor any breach or threatened breach of this letter agreement by you or any of your Representatives and that we shall be entitled to specific\nperformance and to injunctive or other equitable relief as remedies if you or any of your Representatives breach or threaten to breach any of the\nprovisions of this letter agreement (including any act or omission by any of your Representatives that, if committed by you, would constitute a\nbreach of this letter agreement). You hereby waive any requirement for the securing or posting of any bond in connection with any such remedy.\n14. You acknowledge that no failure or delay by us in exercising any right, power or privilege under this letter agreement shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or\nprivilege under this letter agreement.\n15. This letter agreement shall be governed by and construed in accordance with the laws of the State of Delaware, excluding any choice of\nlaw rules that may direct the application of the laws of another jurisdiction. You expressly agree that any action brought pursuant to this letter\nagreement shall be brought, heard and determined exclusively in the United States Federal District Court for the District of Delaware, and you\nconsent to personal and subject matter jurisdiction and venue in such court and waive and relinquish all right to attack the suitability or\nconvenience of such venue or forum. You waive personal service of any and all process in any such action and consent to all such service of\nprocess made by mail or messenger to the address specified on the first page of this letter agreement. You acknowledge that all directions issued\nby the forum court, including, without limitation, all injunctions and other decrees, shall be binding and enforceable in all jurisdictions.\n16. This letter agreement shall bind and impose obligations upon any of your parent, subsidiary, sibling and other affiliates to which the\nProprietary Information is disseminated. Any assignment of this letter agreement by you without our prior written consent shall be void and\nwithout legal effect. This letter agreement supersedes all prior agreements, and constitutes a complete and exclusive statement of the terms of the\nagreement, between the parties with respect to its subject matter. There have been and are no agreements, representations or warranties between\nthe parties with respect to the subject matter of this letter agreement other than those set forth or provided for in this letter agreement. No\nmodification of this letter agreement or waiver of the terms and conditions hereof shall be binding upon you or us, unless in a writing executed\nby each of you and us. This letter agreement may be executed by signatures exchanged via facsimile or other electronic means and in one or\nmore counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.\n17. This letter agreement shall take effect as of the date hereof and, except as otherwise expressly set forth in this letter agreement, shall\nremain in effect for a period of three (3) years, provided that your and your Representatives’ obligations under this letter agreement with respect\nto any Proprietary Information that constitutes a trade secret under applicable law shall continue until such Proprietary Information no longer\nconstitutes a trade secret under applicable law.\n[Signature page follows]\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 7\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter enclosed\nherewith.\nMAGNETEK, INC.\nBy:\n/s/ Scott S. Cramer\nName: Scott S. Cramer\nTitle: VP, General Counsel & Secretary\nACCEPTED AND AGREED:\nColumbus McKinnon Corporation\nBy: /s/ Alan S. Korman\nName: Alan S. Korman\nTitle: VP, General Counsel & Secretary ead4ae70800732aeb59f689dc2e60117.pdf effective_date jurisdiction party term Exhibit D\nNon-Disclosure Agreement\nMicrosoft\nNon-Disclosure Agreement\nThis Non-Disclosure Agreement (“agreement”) is between the patties signing below. “We,” “us” and “our” refer to both of the patties signing below and\nour respective affiliates.\nCOMPANY AND ITS AFFILIATES or\nINDIVIDUAL: Adaptive Biotechnologies\nMICROSOFT CORPORATION\nAND ITS AFFILIATES\nAddress: 1551 Eastlake Ave E\nOne Microsoft Way\nRedmond, WA 98052-6399\nSeattle, WA\n98102\nUSA\nUSA\nSign: /s/ Gene DeFelice\n/s/ Lucy Bassli\nPrint Name: GENE DEFELICE\nLucy Bassli (CELA)\nPrint Title: Senior Vice President, General Counsel\nSignature Date:7/21/17\n21-Jul-17\nFor information about this agreement, contact the Microsoft Contact, Vikram Dendi.\n1. The purpose of this agreement. This agreement allows us to disclose confidential information to each other, to our own affiliates and to the other’s\naffiliates, under the following terms. An “affiliate” is any legal entity that one of us owns, that owns one of us or that is under common control with one\nof us. “Control” and “own” mean possessing a 50% or greater interest in an entity or the right to direct the management of the entity.\n2. Confidential information.\na. What is included. “Confidential information” is non-public information, know-how and trade secrets in any form that:\n•\nAre designated as “confidential”; or\n•\nA reasonable person knows or reasonably should understand to be confidential.\nb. What is not included. The following types of information, however marked, are not confidential information. Information that:\n•\nIs, or becomes, publicly available without a breach of this agreement;\n•\nWas lawfully known to the receiver of the information without an obligation to keep it confidential;\n•\nIs received from another source who can disclose it lawfully and without an obligation to keep it confidential;\n•\nIs independently developed; or\n•\nIs a comment or suggestion one of us volunteers about the other’s business, products or services.\nConfidential\n3. Treatment of confidential information.\na.\nIn general. Subject to the other terms of this agreement, each of us agrees:\n•\nWe will not disclose the other’s confidential information to third parties; and\n•\nWe will use and disclose the other’s confidential information only for purposes of our business relationship with each other.\nb. Security precautions. Each of us agrees:\n•\nTo take reasonable steps to protect the other’s confidential information. These steps must be at least as protective as those we take to\nprotect our own confidential information;\n•\nTo notify the other promptly upon discovery of any unauthorized use or disclosure of confidential information; and\n•\nTo cooperate with the other to help regain control of the confidential information and prevent further unauthorized use or disclosure\nof it.\nc.\nSharing confidential information with affiliates and representatives.\n•\nA “representative” is an employee, contractor. advisor or consultant of one of us or one of our respective affiliates.\n•\nEach of us may disclose the other’s confidential information to our representatives (who may then disclose that confidential\ninformation to other of our representatives) orly if those representatives have a need to know about it for purposes of our business\nrelationship with each other. Before doing so, each of us must:\n•\nensure that affiliates and representatives are required to protect the confidential information on terms consistent with this\nagreement; and\n•\naccept responsibility for each representative’s use of confidential information.\n•\nNeither of us is required to restrict work assignments of representatives who have had access to confidential information. Neither of\nus can control the incoming information the other will disclose to us in the course of working together, or what our representatives\nwill remember, even without notes or other aids. We agree that use of information in representatives’ unaided memories in the\ndevelopment or deployment of our respective products or services does not create liability under this agreement or trade secret law,\nand we agree to limit what we disclose to the other accordingly.\nd. Disclosing confidential information if required to by law. Each of us may disclose the other’s confidential information if required to\ncomply with a court order or other government demand that has the force of law. Before doing so, each of us must seek the highest level of\nprotection available and, when possible, give the other enough prior notice to provide a reasonable chance to seek a protective order.\n4. Length of confidential information obligations.\na.\nTermination. This agreement continues in effect until one of us terminates it. Either of us may terminate this agreement for any reason by\nproviding the other with 30 days’ advance written notice. Termination of this agreement will not change any of the rights and duties made\nwhile this agreement is in effect.\nb. No other use or disclosure of confidential information. Except as permitted above, neither of us will use or disclose the other’s\nconfidential information for five years after we receive it. The five-year time period does not apply if applicable law requires a longer\nperiod.\nConfidential\n5. General rights and obligations.\na.\nLaw that applies; jurisdiction and venue. The laws of the State of Washington govern this agreement. If federal jurisdiction exists, we\neach consent to exclusive jurisdiction and venue in the federal courts in King County, Washington. If not, we each consent to exclusive\njurisdiction and venue in the Superior Court of King County, Washington.\nb. Compliance with law. Each of us will comply with all export laws that apply to confidential information.\nc.\nWaiver. Any delay or failure of either of us to exercise a right or remedy will not result in a waiver of that, or any other, right or remedy.\nd. Money damages insufficient. Each of us acknowledges that money damages may not be sufficient compensation for a breach of this\nagreement. Each of us agrees that the other may seek court orders to stop confidential information from becoming public in breach of this\nagreement.\ne.\nAttorneys’ fees. In any dispute relating to this agreement the prevailing party will be entitled to recover reasonable attorneys’ fees and\ncosts.\nf. Transfers of this agreement. If one of us transfers this agreement, we will not disclose the other’s confidential information to the transferee\nwithout the other’s consent.\ng. Enforceability. If any provision of this agreement is unenforceable, the parties (or, if we cannot agree, a court) will revise it so that it can be\nenforced. Even if no revision is possible, the rest of this agreement will remain in place.\nh. Entire agreement. This agreement does not grant any implied intellectual property licenses to confidential information, except as stated\nabove. We may have contracts with each other covering other specific aspects of our relationship (“other contracts”). The other contract may\ninclude commitments about confidential information, either within it or by referencing another non-disclosure agreement. If so, those\nobligations remain in place for purposes of that other contract. With this exception, this is the entire agreement between us regarding\nconfidential information. It replaces all other agreements and understandings regarding confidential information. We can only change this\nagreement with a signed document that states that it is changing this agreement.\nConfidential Exhibit D\nNon-Disclosure Agreement\nMicrosoft\nNon-Disclosure Agreement\nThis Non-Disclosure Agreement (“agreement”) is between the patties signing below. “We,” “us” and “our” refer to both of the patties signing below and\nour respective affiliates.\nCOMPANY AND ITS AFFILIATES or MICROSOFT CORPORATION\nINDIVIDUAL: Adaptive Biotechnologies AND ITS AFFILIATES\nAddress: 1551 Eastlake Ave E One Microsoft Way\nSeattle, WA Redmond, WA 98052-6399\n98102\nUSA USA\nSign: /s/ Gene DeFelice /s/ Lucy Bassli\nPrint Name: GENE DEFELICE Lucy Bassli (CELA)\nPrint Title: Senior Vice President, General Counsel\nSignature Date:7/21/17 21-Jul-17\nFor information about this agreement, contact the Microsoft Contact, Vikram Dendi.\n \n1. The purpose of this agreement. This agreement allows us to disclose confidential information to each other, to our own affiliates and to the other’s\naffiliates, under the following terms. An “affiliate” is any legal entity that one of us owns, that owns one of us or that is under common control with one\nof us. “Control” and “own” mean possessing a 50% or greater interest in an entity or the right to direct the management of the entity.\n2. Confidential information.\na. What is included. “Confidential information” is non-public information, know-how and trade secrets in any form that:\n. Are designated as “confidential”; or\n. A reasonable person knows or reasonably should understand to be confidential.\nb. What is not included. The following types of information, however marked, are not confidential information. Information that:\n. Is, or becomes, publicly available without a breach of this agreement;\n. Was lawfully known to the receiver of the information without an obligation to keep it confidential;\n. Is received from another source who can disclose it lawfully and without an obligation to keep it confidential;\n. Is independently developed; or\n. Is a comment or suggestion one of us volunteers about the other’s business, products or services.\nConfidential\n3. Treatment of confidential information. a. Ingeneral. Subject to the other terms of this agreement, each of us agrees: We will not disclose the other’s confidential information to third parties; and\nWe will use and disclose the other’s confidential information only for purposes of our business relationship with each other.\nb. Security precautions. Each of us agrees: To take reasonable steps to protect the other’s confidential information. These steps must be at least as protective as those we take to\nprotect our own confidential information;\nTo notify the other promptly upon discovery of any unauthorized use or disclosure of confidential information; and\nTo cooperate with the other to help regain control of the confidential information and prevent further unauthorized use or disclosure\nof it.\nc. Sharing confidential information with affiliates and representatives. A “representative” is an employee, contractor. advisor or consultant of one of us or one of our respective affiliates.\nEach of us may disclose the other’s confidential information to our representatives (who may then disclose that confidential\ninformation to other of our representatives) orly if those representatives have a need to know about it for purposes of our business\nrelationship with each other. Before doing so, each of us must:\n« ensure that affiliates and representatives are required to protect the confidential information on terms consistent with this\nagreement; and\n» accept responsibility for each representative’s use of confidential information.\nNeither of us is required to restrict work assignments of representatives who have had access to confidential information. Neither of\nus can control the incoming information the other will disclose to us in the course of working together, or what our representatives\nwill remember, even without notes or other aids. We agree that use of information in representatives’ unaided memories in the\ndevelopment or deployment of our respective products or services does not create liability under this agreement or trade secret law,\nand we agree to limit what we disclose to the other accordingly.\nd. Disclosing confidential information if required to by law. Each of us may disclose the other’s confidential information if required to comply with a court order or other government demand that has the force of law. Before doing so, each of us must seek the highest level of protection available and, when possible, give the other enough prior notice to provide a reasonable chance to seek a protective order. 4. Length of confidential information obligations. a. Termination. This agreement continues in effect until one of us terminates it. Either of us may terminate this agreement for any reason by providing the other with 30 days’ advance written notice. Termination of this agreement will not change any of the rights and duties made while this agreement is in effect. b. No other use or disclosure of confidential information. Except as permitted above, neither of us will use or disclose the other’s confidential information for five years after we receive it. The five-year time period does not apply if applicable law requires a longer period. Confidential\n5. General rights and obligations.\na. Law that applies; jurisdiction and venue. The laws of the State of Washington govern this agreement. If federal jurisdiction exists, we\neach consent to exclusive jurisdiction and venue in the federal courts in King County, Washington. If not, we each consent to exclusive\njurisdiction and venue in the Superior Court of King County, Washington.\nb. Compliance with law. Each of us will comply with all export laws that apply to confidential information.\nc. Waiver. Any delay or failure of either of us to exercise a right or remedy will not result in a waiver of that, or any other, right or remedy.\nd. Money damages insufficient. Each of us acknowledges that money damages may not be sufficient compensation for a breach of this\nagreement. Each of us agrees that the other may seek court orders to stop confidential information from becoming public in breach of this\nagreement.\ne. Attorneys’ fees. In any dispute relating to this agreement the prevailing party will be entitled to recover reasonable attorneys’ fees and\ncosts.\nf. Transfers of this agreement. If one of us transfers this agreement, we will not disclose the other’s confidential information to the transferee\nwithout the other’s consent.\ng. Enforceability. If any provision of this agreement is unenforceable, the parties (or, if we cannot agree, a court) will revise it so that it can be\nenforced. Even if no revision is possible, the rest of this agreement will remain in place.\nh. Entire agreement. This agreement does not grant any implied intellectual property licenses to confidential information, except as stated\nabove. We may have contracts with each other covering other specific aspects of our relationship (“other contracts”). The other contract may\ninclude commitments about confidential information, either within it or by referencing another non-disclosure agreement. If so, those\nobligations remain in place for purposes of that other contract. With this exception, this is the entire agreement between us regarding\nconfidential information. It replaces all other agreements and understandings regarding confidential information. We can only change this\nagreement with a signed document that states that it is changing this agreement.\nConfidential Exhibit D\nNon-Disclosure Agreement\nMicrosoft\nNon-Disclosure Agreement\nThis Non-Disclosure Agreement ("agreement") is between the patties signing below. "We," "us" and "our" refer to both of the patties signing below and\nour respective affiliates.\nCOMPANY AND ITS AFFILIATES or\nMICROSOFT CORPORATION\nINDIVIDUAL: Adaptive Biotechnologies\nAND ITS AFFILIATES\nAddress: 1551 Eastlake Ave E\nOne Microsoft Way\nSeattle, WA\nRedmond, WA 98052-6399\n98102\nUSA\nUSA\nSign: /s/ Gene DeFelice\n/s/ Lucy Bassli\nPrint Name: GENE DEFELICE\nLucy Bassli (CELA)\nPrint Title: Senior Vice President, General Counsel\nSignature Date:7/21/17\n21-Jul-17\nFor information about this agreement, contact the Microsoft Contact, Vikram Dendi.\n1. The purpose of this agreement. This agreement allows us to disclose confidential information to each other, to our own affiliates and to the other's\naffiliates, under the following terms. An "affiliate" is any legal entity that one of us owns, that owns one of us or that is under common control with one\nof us. "Control" and "own" mean possessing a 50% or greater interest in an entity or the right to direct the management of the entity.\n2. Confidential information.\na. What is included. "Confidential information" is non-public information, know-how and trade secrets in any form that:\nAre designated as "confidential"; or\nA reasonable person knows or reasonably should understand to be confidential.\nb.\nWhat is not included. The following types of information, however marked, are not confidential information. Information that:\nIs, or becomes, publicly available without a breach of this agreement;\nWas lawfully known to the receiver of the information without an obligation to keep it confidential;\nIs received from another source who can disclose it lawfully and without an obligation to keep it confidential;\nIs independently developed; or\nIs a comment or suggestion one of us volunteers about the other's business, products or services.\nConfidential\n3. Treatment of confidential information.\na.\nIn general. Subject to the other terms of this agreement, each of us agrees:\nWe will not disclose the other's confidential information to third parties; and\nWe will use and disclose the other's confidential information only for purposes of our business relationship with each other.\nb.\nSecurity precautions. Each of us agrees:\nTo take reasonable steps to protect the other's confidential information. These steps must be at least as protective as those we take to\nprotect our own confidential information;\nTo notify the other promptly upon discovery of any unauthorized use or disclosure of confidential information; and\nTo cooperate with the other to help regain control of the confidential information and prevent further unauthorized use or disclosure\nof it.\nC.\nSharing confidential information with affiliates and representatives.\nA "representative" is an employee, contractor. advisor or consultant of one of us or one of our respective affiliates.\nEach of us may disclose the other's confidential information to our representatives (who may then disclose that confidential\ninformation to other of our representatives) orly if those representatives have a need to know about it for purposes of our business\nrelationship with each other. Before doing so, each of us must:\nensure that affiliates and representatives are required to protect the confidential information on terms consistent with this\nagreement; and\naccept responsibility for each representative's use of confidential information.\nNeither of us is required to restrict work assignments of representatives who have had access to confidential information. Neither of\nus can control the incoming information the other will disclose to us in the course of working together, or what our representatives\nwill remember, even without notes or other aids. We agree that use of information in representatives' unaided memories in the\ndevelopment or deployment of our respective products or services does not create liability under this agreement or trade secret law,\nand we agree to limit what we disclose to the other accordingly.\nd.\nDisclosing confidential information if required to by law. Each of us may disclose the other's confidential information if required to\ncomply with a court order or other government demand that has the force of law. Before doing so, each of us must seek the highest level of\nprotection available and, when possible, give the other enough prior notice to provide a reasonable chance to seek a protective order.\n4.\nLength of confidential information obligations.\na.\nTermination. This agreement continues in effect until one of us terminates it. Either of us may terminate this agreement for any reason by\nproviding the other with 30 days' advance written notice. Termination of this agreement will not change any of the rights and duties made\nwhile this agreement is in effect.\nb.\nNo other use or disclosure of confidential information. Except as permitted above, neither of us will use or disclose the other's\nconfidential information for five years after we receive it. The five-year time period does not apply if applicable law requires a longer\nperiod.\nConfidential\n5. General rights and obligations.\na.\nLaw that applies; jurisdiction and venue. The laws of the State of Washington govern this agreement. If federal jurisdiction exists, we\neach consent to exclusive jurisdiction and venue in the federal courts in King County, Washington. If not, we each consent to exclusive\njurisdiction and venue in the Superior Court of King County, Washington.\nb. Compliance with law. Each of us will comply with all export laws that apply to confidential information.\nC.\nWaiver. Any delay or failure of either of us to exercise a right or remedy will not result in a waiver of that, or any other, right or remedy.\nd.\nMoney damages insufficient. Each of us acknowledges that money damages may not be sufficient compensation for a breach of this\nagreement. Each of us agrees that the other may seek court orders to stop confidential information from becoming public in breach of this\nagreement.\ne.\nAttorneys' fees. In any dispute relating to this agreement the prevailing party will be entitled to recover reasonable attorneys' fees and\ncosts.\nf.\nTransfers of this agreement. If one of us transfers this agreement, we will not disclose the other's confidential information to the transferee\nwithout the other's consent.\ng.\nEnforceability. If any provision of this agreement is unenforceable, the parties (or, if we cannot agree, a court) will revise it so that it can be\nenforced. Even if no revision is possible, the rest of this agreement will remain in place.\nh.\nEntire agreement. This agreement does not grant any implied intellectual property licenses to confidential information except as stated\nabove. We may have contracts with each other covering other specific aspects of our relationship ("other contracts"). The other contract may\ninclude commitments about confidential information, either within it or by referencing another non-disclosure agreement. If so, those\nobligations remain in place for purposes of that other contract. With this exception, this is the entire agreement between us regarding\nconfidential information. It replaces all other agreements and understandings regarding confidential information. We can only change this\nagreement with a signed document that states that it is changing this agreement.\nConfidential Exhibit D\nNon-Disclosure Agreement\nMicrosoft\nNon-Disclosure Agreement\nThis Non-Disclosure Agreement (“agreement”) is between the patties signing below. “We,” “us” and “our” refer to both of the patties signing below and\nour respective affiliates.\nCOMPANY AND ITS AFFILIATES or\nINDIVIDUAL: Adaptive Biotechnologies\nMICROSOFT CORPORATION\nAND ITS AFFILIATES\nAddress: 1551 Eastlake Ave E\nOne Microsoft Way\nRedmond, WA 98052-6399\nSeattle, WA\n98102\nUSA\nUSA\nSign: /s/ Gene DeFelice\n/s/ Lucy Bassli\nPrint Name: GENE DEFELICE\nLucy Bassli (CELA)\nPrint Title: Senior Vice President, General Counsel\nSignature Date:7/21/17\n21-Jul-17\nFor information about this agreement, contact the Microsoft Contact, Vikram Dendi.\n1. The purpose of this agreement. This agreement allows us to disclose confidential information to each other, to our own affiliates and to the other’s\naffiliates, under the following terms. An “affiliate” is any legal entity that one of us owns, that owns one of us or that is under common control with one\nof us. “Control” and “own” mean possessing a 50% or greater interest in an entity or the right to direct the management of the entity.\n2. Confidential information.\na. What is included. “Confidential information” is non-public information, know-how and trade secrets in any form that:\n•\nAre designated as “confidential”; or\n•\nA reasonable person knows or reasonably should understand to be confidential.\nb. What is not included. The following types of information, however marked, are not confidential information. Information that:\n•\nIs, or becomes, publicly available without a breach of this agreement;\n•\nWas lawfully known to the receiver of the information without an obligation to keep it confidential;\n•\nIs received from another source who can disclose it lawfully and without an obligation to keep it confidential;\n•\nIs independently developed; or\n•\nIs a comment or suggestion one of us volunteers about the other’s business, products or services.\nConfidential\n3. Treatment of confidential information.\na.\nIn general. Subject to the other terms of this agreement, each of us agrees:\n•\nWe will not disclose the other’s confidential information to third parties; and\n•\nWe will use and disclose the other’s confidential information only for purposes of our business relationship with each other.\nb. Security precautions. Each of us agrees:\n•\nTo take reasonable steps to protect the other’s confidential information. These steps must be at least as protective as those we take to\nprotect our own confidential information;\n•\nTo notify the other promptly upon discovery of any unauthorized use or disclosure of confidential information; and\n•\nTo cooperate with the other to help regain control of the confidential information and prevent further unauthorized use or disclosure\nof it.\nc.\nSharing confidential information with affiliates and representatives.\n•\nA “representative” is an employee, contractor. advisor or consultant of one of us or one of our respective affiliates.\n•\nEach of us may disclose the other’s confidential information to our representatives (who may then disclose that confidential\ninformation to other of our representatives) orly if those representatives have a need to know about it for purposes of our business\nrelationship with each other. Before doing so, each of us must:\n•\nensure that affiliates and representatives are required to protect the confidential information on terms consistent with this\nagreement; and\n•\naccept responsibility for each representative’s use of confidential information.\n•\nNeither of us is required to restrict work assignments of representatives who have had access to confidential information. Neither of\nus can control the incoming information the other will disclose to us in the course of working together, or what our representatives\nwill remember, even without notes or other aids. We agree that use of information in representatives’ unaided memories in the\ndevelopment or deployment of our respective products or services does not create liability under this agreement or trade secret law,\nand we agree to limit what we disclose to the other accordingly.\nd. Disclosing confidential information if required to by law. Each of us may disclose the other’s confidential information if required to\ncomply with a court order or other government demand that has the force of law. Before doing so, each of us must seek the highest level of\nprotection available and, when possible, give the other enough prior notice to provide a reasonable chance to seek a protective order.\n4. Length of confidential information obligations.\na.\nTermination. This agreement continues in effect until one of us terminates it. Either of us may terminate this agreement for any reason by\nproviding the other with 30 days’ advance written notice. Termination of this agreement will not change any of the rights and duties made\nwhile this agreement is in effect.\nb. No other use or disclosure of confidential information. Except as permitted above, neither of us will use or disclose the other’s\nconfidential information for five years after we receive it. The five-year time period does not apply if applicable law requires a longer\nperiod.\nConfidential\n5. General rights and obligations.\na.\nLaw that applies; jurisdiction and venue. The laws of the State of Washington govern this agreement. If federal jurisdiction exists, we\neach consent to exclusive jurisdiction and venue in the federal courts in King County, Washington. If not, we each consent to exclusive\njurisdiction and venue in the Superior Court of King County, Washington.\nb. Compliance with law. Each of us will comply with all export laws that apply to confidential information.\nc.\nWaiver. Any delay or failure of either of us to exercise a right or remedy will not result in a waiver of that, or any other, right or remedy.\nd. Money damages insufficient. Each of us acknowledges that money damages may not be sufficient compensation for a breach of this\nagreement. Each of us agrees that the other may seek court orders to stop confidential information from becoming public in breach of this\nagreement.\ne.\nAttorneys’ fees. In any dispute relating to this agreement the prevailing party will be entitled to recover reasonable attorneys’ fees and\ncosts.\nf. Transfers of this agreement. If one of us transfers this agreement, we will not disclose the other’s confidential information to the transferee\nwithout the other’s consent.\ng. Enforceability. If any provision of this agreement is unenforceable, the parties (or, if we cannot agree, a court) will revise it so that it can be\nenforced. Even if no revision is possible, the rest of this agreement will remain in place.\nh. Entire agreement. This agreement does not grant any implied intellectual property licenses to confidential information, except as stated\nabove. We may have contracts with each other covering other specific aspects of our relationship (“other contracts”). The other contract may\ninclude commitments about confidential information, either within it or by referencing another non-disclosure agreement. If so, those\nobligations remain in place for purposes of that other contract. With this exception, this is the entire agreement between us regarding\nconfidential information. It replaces all other agreements and understandings regarding confidential information. We can only change this\nagreement with a signed document that states that it is changing this agreement.\nConfidential f28c4f3d35a152dd415f9b255122cb38.pdf effective_date jurisdiction party term EX-99.(E)(2) 3 dex99e2.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(2)\n[ORTHOVITA LETTERHEAD]\nJanuary 18, 2011\nBryant Zanko\nVice President, Business Development\nStryker Corporation\n2725 Fairfield Road\nKalamazoo, MI 49002\nDear Bryant:\nYou have requested information regarding Orthovita, Inc. (the “Company”, “us” or “we”) in connection with your consideration of a possible\nnegotiated transaction with the Company (a “Possible Transaction”). For purposes of this agreement, the term “Company” includes the Company\nand its subsidiaries taken as a whole or any business or businesses thereof. In consideration of our furnishing you with the Evaluation Materials (as\ndefined below) you agree as follows:\nConfidentiality of Evaluation Materials\nYou will treat confidentially any information (whether written or oral) that either we or our financial advisor, J.P. Morgan Securities LLC (the\n“Financial Advisor”), or our other representatives furnish to you in connection with a Possible Transaction involving the Company, whether\nfurnished before or after the date of this agreement and regardless of the manner in which it is furnished, together with analyses, compilations,\nstudies or other documents prepared by you, or by your representatives (as defined hereinafter) which contain or otherwise reflect such information\nor your review of, or interest in, the Company (collectively, the “Evaluation Materials”).\nThe term “Evaluation Materials” includes information furnished to you orally or in writing (whatever the form or storage medium) or gathered by\ninspection, and regardless of whether such information is specifically identified as “confidential” including, but not limited to, all conversations,\nmeetings, negotiations, discussions, internal memoranda, documents and notes involving the Company and the Possible Transaction. The term\n“Evaluation Materials” does not include information which (i) is or becomes generally available to you or the public other than as a result of a\ndisclosure by you or your representatives, (ii) was or becomes available to you on a non-confidential basis from a source other than the Company or\nits representatives, provided that to your knowledge, after due inquiry, such source is not prohibited from disclosing such information to you by a\ncontractual, legal or fiduciary obligation to the Company or its representatives or (iii) is independently developed by you without violating your\nobligations hereunder.\nUse of Evaluation Materials\nYou will not use any of the Evaluation Materials for any purpose other than the exclusive purpose of evaluating a Possible Transaction. Except as\nrequired by law, you and your representatives will keep the Evaluation Materials confidential; provided, however, that (i) such information may be\ndisclosed to those of your directors, officers, employees, affiliates, agents and representatives (including attorneys, accountants and financial\nadvisors), lenders and other sources of debt financing (collectively, “your representatives”) who need to know such information for the purpose of\nevaluating a Possible Transaction between you and the Company (it being understood that your representatives shall be informed by you of the\nconfidential nature of such information and shall be directed by you to treat such information as confidential in accordance with this agreement and\nshall be under obligations of confidentiality with respect to such information) and (ii) any other disclosure of such information may only be made if\nthe Company consents in writing prior to any such disclosure. Without limiting the generality of the foregoing, in the event that a Possible\nTransaction is not consummated, neither you nor your representatives shall use any of the Evaluation Materials for any purpose. You will be\nresponsible for any breach of this agreement by you or your representatives.\nYou hereby acknowledge that the Company is a publicly traded company. You further hereby acknowledge that you are aware, and that you will\nadvise your representatives who are informed as to the matters which are the subject of this agreement, that the United States securities laws prohibit\nany person who has received from an issuer material, non-public information from purchasing or selling securities of such issuer or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase\nor sell such securities.\nIf you become aware of any unauthorized disclosure or use of any Evaluation Materials, you hereby covenant to promptly notify the Company.\nMoreover, upon the request of the Company, you shall cooperate in assisting the Company in terminating or preventing any third parties from\ndisseminating or using the Evaluation Materials.\nIn the event that you or any of your representatives receive a request or are required (by deposition, interrogatory, request for documents, subpoena,\ncivil investigative demand or similar process) to disclose all or any part of the Evaluation Materials, you or your representatives, as the case may be,\nhereby agree to (i) immediately notify the Company of the existence, terms and circumstances surrounding such request, (ii) unless to the extent\nlegally impracticable, consult with the Company on the advisability of taking legally available steps to resist or narrow such request and (iii) unless\nto the extent legally impracticable, afford the Company with the opportunity to seek a protective order or other appropriate remedy. If your or your\nrepresentatives’ counsel advises that you or your representatives are legally compelled to disclose the Evaluation Materials to any person, (i) you or\nyour representatives, as the case may be, may, without liability hereunder, disclose to such person only that portion of the Evaluation Materials\nwhich your counsel advised you is legally required to be disclosed. You agree to cooperate with the Company, at the Company’s expense, to obtain\nassurance that confidential treatment will be accorded such Evaluation Materials.\n2\nNon-Disclosure\nThe disclosure of your possible interest in a Possible Transaction could have a material adverse effect on the Company and its business if for any\nreason an agreement of purchase and sale is not consummated or a disclosure is made prior to the closing of a Possible Transaction. Accordingly,\nunless required by applicable law or regulatory authority, you agree that prior to the closing of a Possible Transaction, without the prior written\nconsent of the Company, you will not, and you will direct your representatives not to, disclose to any person the fact that the Evaluation Materials\nhave been made available to you, discussions or negotiations have taken or are taking place concerning a Possible Transaction between the Company\nand you or any of the terms, conditions or other facts with respect to any such Possible Transaction, including the status thereof. The term “person”\nas used in this agreement shall be broadly interpreted to include, without limitation, the media, any corporation or limited liability company, the\nCompany, governmental agency or body, stock exchange, partnership, association or individual.\nOwnership and Return of Evaluation Materials\nAll Evaluation Materials disclosed by or on behalf of the Company shall be and shall remain in the property of the Company. Upon the Company’s\nrequest, you shall promptly deliver to the Company or destroy all written Evaluation Materials without retaining, in whole or in part, any copies,\nextracts or other reproductions (whatever the form or storage medium) of such materials, and shall certify the delivery or destruction, as applicable,\nof all such materials in writing to the Company; provided that economic analyses, privileged communication with your counsel and other proprietary\ndocumentation shall not be required to be delivered to the Company but shall be destroyed as set forth in this sentence and provided further that you\nmay retain one copy of the Evaluation Materials in a secure location within your Legal Department. Notwithstanding the return or destruction of the\nEvaluation Materials, you and your representatives will continue to be bound by your obligations of confidentiality and other obligations hereunder.\nNo Unauthorized Contact or Solicitation\nDuring the course of your evaluation, all inquiries and other communications are to be made directly to the Financial Advisor or employees or\nrepresentatives of the Company specified by the Financial Advisor. Accordingly, except as set forth in the preceding sentence, you agree not to\ndirectly or indirectly contact or communicate with any executive or other employee of the Company (in their capacities as officers or employees of\nthe Company) concerning a Possible Transaction, or to seek any information in connection therewith from such person, without the express written\nconsent of the Financial Advisor. You also agree not to discuss with or offer to any third party any equity participation in a Possible Transaction or\nany other form of joint acquisition by you and such third party without the prior written consent of the Company.\nWithout the Company’s prior written consent, you will not for a period of eighteen months after the date of this agreement directly or indirectly\nsolicit for employment any person who is now employed by the Company in an executive-level position, or any person who is now employed by the\nCompany in a management-level position at the Company’s headquarters in Malvern, Pennsylvania, provided that you are not prohibited from\nemploying any such person who contacts you on his or her own initiative and without any direct or indirect solicitation by you\n3\nand the term “solicit for employment” shall not be deemed to include general solicitations of employment not specifically directed toward employees\nof the Company.\nStandstill\nYou agree that until eighteen months after the date of this agreement, you will not without the prior approval of the Board of Directors of the\nCompany (i) acquire or make any proposal to acquire any securities or property of the Company or to acquire any ability to exercise voting or\ndispositive power with respect to any securities of the Company, (ii) propose to enter into any merger or business combination involving the\nCompany or purchase a material portion of the assets of the Company, (iii) make or participate in any solicitation of proxies to vote, or seek to advise\nor influence any person with respect to the voting of any securities of the Company, (iv) form, join or participate in a “group” (within the meaning of\nSection 13(d)(3) of the Securities Exchange Act of 1934, as amended), with respect to any voting securities of the Company, (v) otherwise act or\nseek to control or influence the management, Board of Directors or policies of the Company, (vi) disclose any intention, plan or arrangement\ninconsistent with the foregoing or (vii) take any action which might require the Company to make a public announcement regarding the possibility of\na business combination or merger. You also agree during such period not to request the Company (or its directors, officers, employees, agents or\nrepresentatives) to amend or waive any provision of this paragraph unless specifically invited to do so by the Board of Directors of the Company.\nNotwithstanding the restrictions in this paragraph, after the Company has announced that it has entered into a definitive written agreement with a\nthird party with respect to a business combination transaction that, if consummated, would result in a transfer of corporate control of the Company,\nyou may make an acquisition proposal to the Company’s Board of Directors.\nNo Representation or Warranty\nYou acknowledge and agree that none of the Company, the Financial Advisor, or any of their respective representatives or agents is making any\nrepresentation or warranty, expressed or implied, as to the accuracy or completeness of the Evaluation Materials, and none of the Company, the\nFinancial Advisor, or any of their respective representatives or agents, nor any of their respective officers, directors, employees, representatives,\nstockholders, owners, affiliates, advisors or agents, will have any liability to you or any other person resulting from the use of Evaluation Materials\nby you or any of your representatives. Furthermore, nothing contained herein shall constitute an obligation on the part of the Company, the Financial\nAdvisor, or any of their respective representatives or agents to provide Evaluation Materials or to update any Evaluation Materials provided\nhereunder. Only those representations or warranties that are made to you in a definitive agreement for the Possible Transaction (“Definitive\nAgreement”) when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such Definitive Agreement, will\nhave any legal effect. For purposes of this agreement, the term “Definitive Agreement” does not include an executed non-binding letter of intent or\nany other non-binding written agreement, nor does it include any oral acceptance of an offer or bid by you.\nYou also acknowledge and agree that no contract or agreement providing for the sale of the Company or any interest in the Company shall be\ndeemed to exist between you and the Company unless and until a Definitive Agreement has been executed and delivered by you and each of the\n4\nother parties thereto, and you hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with the sale of\nthe Company or any interest in the Company unless and until a Definitive Agreement has been executed and delivered by you and each of the other\nparties thereto. You also agree that unless and until a Definitive Agreement between the Company and you with respect to the acquisition of the\nCompany or any interest in the Company has been executed and delivered by you and each of the other parties thereto, there shall not be any legal\nobligation of any kind whatsoever with respect to any such transaction by virtue of this agreement or any other written or oral expression with\nrespect to such transaction except, in the case of this agreement, for the matters specifically agreed to herein.\nYou further understand and agree that (i) the Company and the Financial Advisor shall be free to conduct any process for the sale of the Company or\nany interest in the Company as they in their sole discretion shall determine (including, without limitation, negotiating with any prospective\ncounterparty and entering into a Definitive Agreement without prior notice to you or to any other person), (ii) any procedures relating to such sale\nmay be changed at any time without notice to you or any other person and (iii) you shall not have any claims whatsoever against the Company, the\nFinancial Advisor or any of their respective directors, officers, employees, stockholders, owners, affiliates, agents or representatives arising out of or\nrelating to a Possible Transaction involving the Company. You further understand and agree that the Company reserves the right, in its sole\ndiscretion, to reject any and all proposals made by you or any of your representatives with regard to any Possible Transaction, and to terminate\ndiscussions and negotiations with you at any time. Neither this paragraph nor any other provision in this agreement can be waived or amended\nexcept by written consent of the Company, which consent shall specifically refer to this paragraph (or such provision) and explicitly make such\nwaiver or amendment.\nLegal Remedy\nYou understand and agree that money damages would not be a sufficient remedy for any breach of this agreement by you or your representatives and\nthat the Company will be entitled to specific performance and injunctive relief as remedies for any such breach. Such remedies shall not be deemed\nto be the exclusive remedies for a breach of this agreement by you or your representatives but shall be in addition to all other remedies available at\nlaw or equity. In the event of litigation relating to this agreement, if a court of competent jurisdiction determines that you or your representatives\nhave breached this agreement, then you shall reimburse the Company for its reasonable legal fees and expenses incurred in connection with such\nlitigation, including any appeals therefrom. Similarly, if a court of competent jurisdiction determines that you and/or your representatives did not\nbreach this agreement, then the Company shall reimburse you and/or your representatives for your reasonable legal fees and expenses incurred in\nconnection with such litigation, including any appeals therefrom.\nOther\nThis agreement constitutes the entire agreement between the parties hereto regarding the subject matter hereof. This agreement may be changed only\nby a written agreement signed by the parties hereto or their authorized representatives.\n5\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, you and the Company understand and agree\nthat you and the Company have a commonality of interest with respect to such matters and it is the Company’s and your desire, intention and mutual\nunderstanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or\nits continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided\nthat is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such\nprotection under these privileges, this agreement, and under the joint defense doctrine.\nIf any term or provision of this agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms\nand provisions of this agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.\nThe parties understand and agree that no failure or delay by the other party in exercising any right, power or privilege under this agreement shall\noperate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or future exercise of any right, power or privilege\nhereunder.\nThis agreement shall be governed by and construed in accordance with the laws of the State of New York. You also hereby irrevocably and\nunconditionally consent to submit to the exclusive jurisdiction of the courts of the State of New York and the United States of America, in each case\nlocated in the County of New York, for any actions, suits or proceedings arising out of or relating to this agreement and the transactions\ncontemplated hereby (and you agree not to commence any action, suit or proceeding relating thereto except in such courts, and further agree that\nservice of any process, summons, notice or document by U.S . registered mail to your address set forth above shall be effective service of process for\nany action, suit or proceeding brought against you in any such court). You hereby irrevocably and unconditionally waive any objection to the laying\nof venue of any action, suit or proceeding arising out of this agreement or the transactions contemplated hereby, in the courts of the State of New\nYork or the United States of America, in each case located in the County of New York, and hereby further irrevocably and unconditionally waive and\nagree not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient\nforum.\nThis agreement shall terminate two years after the date hereof.\n6\nIf you are in agreement with the foregoing, please sign and return one copy of this agreement, it being understood that all counterpart copies will\nconstitute but one agreement with respect to the subject matter of this letter.\nVery truly yours,\nORTHOVITA, INC.\nBy: /s/ Antony Koblish\nAntony Koblish,\nPresident and Chief Executive Officer\nAccepted and agreed to as of the date hereof;\nStryker Corporation\nBy: /s/ Bryant Zanko\nBryant Zanko\nVice President, Business Development\n7\n[ORTHOVITA, INC. LETTERHEAD]\nFebruary 25, 2011\nBryant Zanko\nVice President, Business Development\nStryker Corporation\n2725 Fairfield Road\nKalamazoo, MI 49002\nDear Bryant:\nReference is made to that certain letter agreement dated as of January 18, 2011 (the “Agreement”) by and between Orthovita, Inc. (the “Company”)\nand Stryker Corporation (“Stryker”) in connection with Stryker’s consideration of a possible negotiated transaction with the Company. Capitalized\nterms used herein and not otherwise defined herein shall have the meanings given to them in the Agreement.\nIn order for Stryker to receive access to a substantial amount of diligence information regarding the Company as part of the next phase of the process\ncontemplated under the Agreement, the Company requires Stryker to amend the Agreement in order to extend the confidentiality period thereunder\napplicable to trade secrets.\nAccordingly, the sentence on the last page of the Agreement that states, “This agreement shall terminate two years after the date hereof,” is amended\nand restated in its entirety to read as follows:\n“This agreement shall terminate two years after the date hereof, provided that the obligations set forth under Use of Evaluation Materials\ninsofar as they relate to the use and disclosure of a trade secret shall continue for so long as such trade secret continues to be a trade secret as\ndefined under 18 U.S.C . §1839(3)(A), (B) (1996), and only if the Company identified the general subject matter of such trade secret to you in\nwriting prior to disclosure to you and gave you the opportunity to decline receipt of such trade secret. Neither the foregoing nor the restrictions\nin this agreement applicable to trade secrets is intended to preclude you from using residual knowledge retained in intangible form in the\nunaided memories of your directors, employees, contractors and advisors as a result of exposure to the Company’s Evaluation Material. The\nCompany acknowledges that you may have in conception or development technology that may be very similar or even identical to the\nCompany’s trade secrets disclosed as part of the Evaluation Material.”\nExcept as specifically provided herein all other terms and conditions of the Agreement shall remain unchanged and in full force and effect.\nIf you are in agreement with the foregoing, please sign and return one copy of this amendment to the Agreement, it being understood that all\ncounterpart copies will constitute but one agreement with respect to the subject matter of this letter.\nVery truly yours,\nORTHOVITA, INC.\nBy: /s/ Antony Koblish\nAntony Koblish,\nPresident and Chief Executive Officer\nAccepted and agreed to as of the date hereof:\nStryker Corporation\nBy: /s/ Bryant Zanko\nBryant Zanko\nVice President, Business Development\n2\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is made as of April 27, 2011 by and among Stryker Corporation, a Michigan\ncorporation (collectively with its subsidiaries and Affiliates, “Stryker”); King & Spalding LLP (“K&S”) and Lerner, David, Littenberg, Krumholz &\nMentlik LLP (“LDLKM”), counsel to Stryker (collectively, “the Stryker Advisors”); and Orthovita, Inc., a Pennsylvania corporation (collectively\nwith its subsidiaries and Affiliates, “Orthovita”) (all heretofore named parties are collectively referred to herein as the “Parties”).\nRECITALS\nWHEREAS, Stryker and Orthovita are exploring a possible business relationship, arrangement or transaction with each other (the “Possible\nTransaction”);\nWHEREAS, Stryker and Orthovita entered into a January 18, 2011 letter agreement relating to confidentiality, as amended February 25, 2011\n(the “Existing Confidentiality Agreement”);\nWHEREAS, Stryker has retained the Stryker Advisors to provide legal assistance in connection with the Possible Transaction (the\n“Evaluation”);\nWHEREAS, the Parties wish to facilitate the provision by Orthovita of information and materials to the Stryker Advisors, but also desire to\nensure that appropriate safeguards and restrictions are followed with respect to the transmittal of any such information and materials to the Stryker\nAdvisors.\nNOW, THEREFORE, in consideration of the promises and the mutual covenants contained herein, and for other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:\n1. In order to permit Stryker to conduct the Evaluation, Orthovita or its employees, officers, or other representatives will provide to the Stryker\nAdvisors, orally, in writing, or by other means, the Trade Secret Information (as defined below). The Stryker Advisors agree that they will use the\nTrade Secret Information only for the purposes of the Evaluation and will not share with Stryker or any other person any Trade Secret Information\nexcept in accordance with the terms of this Agreement or as authorized in advance in writing by Orthovita or its representative.\n2. As used in this agreement, the term “Trade Secret Information” means information or materials that have, are related to or reflecting\n(A) collagen processing techniques pertaining to medical grade collagen, Vitagel, Vitastat and other hemostat products, (B) details of the\ncomposition of, exact formulations of raw materials, quality assurance test release criteria and manufacturing processes for Vitoss, Vitoss BA, Vitoss\nFoam Products, Vitoss Flowable Products, Vitoss Elemental, Vitoss BA Bimodal, Vitoss BA2X, Vitagel, Vitastat and BA PEEK, (C) exact method\nof making combeite (heat-treated bioactive glass), (D) sileanation of bioactive\nglass (currently used in Cortoss), (E) details of the Cortoss formulation and manufacturing process.\nTrade Secret Information shall not include, however, information that (i) is or has been made available to Stryker by Orthovita or its representatives\n(provided that this subsection (i) shall not apply to Trade Secret Information made available to Stryker by the Stryker Advisors), (ii) is or becomes\navailable to the public other than as a result of disclosure in breach of this Agreement, or (iii) is or becomes available to Stryker or the Stryker\nAdvisors from a source other than Orthovita or its representatives, provided that, to the best of Stryker’s or a Stryker Advisor’s knowledge, such\nsource is in lawful possession of such information and is not bound by any agreement with Orthovita to keep such information confidential, or\notherwise prohibited from transmitting such information to Stryker or any Stryker Advisor.\n3. Nothing in this Agreement shall (i) prohibit the Stryker Advisors from conducting investigations based on the Trade Secret Information,\nprovided that no source of information under such investigation is known by Stryker or any Stryker Advisor, to the best of its knowledge, to be\nbound by any agreement with Orthovita to keep such information confidential, and otherwise is not prohibited from transmitting such information to\nStryker or any Stryker Advisor, (ii) prohibit the Stryker Advisors from advising Stryker regarding the Stryker Advisors’ opinions based on their\ninvestigations, and the general reasons for its opinions, about any matters for which the Stryker Advisors are engaged to advise Stryker, or\n(iii) require the Stryker Advisors to obtain prior review or approval from Orthovita before rendering such opinions to Stryker.\n4. The Stryker Advisors shall not disclose Trade Secret Information to any third party, including a third party consultant engaged to assist in\nthe Evaluation (a “Consultant”) unless, prior to any such disclosure, such Consultant agrees in writing to be bound by the terms of this Agreement,\nthe Stryker Advisors notify Orthovita of the identity of such Consultant and Orthovita approves in writing the disclosure of Trade Secret Information\nto such Consultant.\n5. To the extent that Stryker inadvertently receives information, whether oral or written, that it reasonably believes constitutes, contains, or\ndiscloses Trade Secret Information, Stryker shall: (i) promptly report such receipt to Orthovita; and (ii) promptly turn over all originals and copies\n(including all electronic copies in any media) of such Trade Secret Information, to the extent it is written, to Orthovita. If confirmed to be Trade\nSecret Information, Stryker agrees to maintain such Trade Secret Information in confidence so long as it remains a trade secret. If not confirmed to\nbe Trade Secret Information, Orthovita shall return all materials turned over by Stryker to the extent that the Evaluation is ongoing.\n6. Upon the request of Orthovita or its representative, and within two (2) weeks after such request (unless another time frame is agreed to in\nwriting by the Parties), the Stryker Advisors shall return all originals and copies of any Trade Secret Information (including all electronic copies in\nany media) to Orthovita and shall destroy all notes, hard copies and electronic copies, that contain or disclose Trade Secret Information, and shall\ncertify as to such destruction to Orthovita in writing.\n2\n7. Each of Stryker and the Stryker Advisors acknowledges that money damages are an inadequate remedy for breach of this Agreement\nbecause of the difficulty of ascertaining the amount of damage that may be suffered in the event that this Agreement is breached and other factors,\nincluding irreparable injury to Orthovita. Therefore, Orthovita shall be entitled to such equitable relief as may be appropriate, including an injunction\nand specific performance, in the event of any breach of the provisions of this Agreement by any other Party, in addition to all other remedies\navailable to Orthovita at law or in equity.\n8.\n(a) This Agreement and all disputes or controversies arising out of or relating to or seeking to enforce this Agreement shall be governed by,\nand construed in accordance with, the internal laws of the State of Delaware, without regard to the laws of any other jurisdiction that\nmight be applied because of the conflicts of laws principles.\n(b) TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, THE PARTIES HERETO\nHEREBY WAIVE AND COVENANT THAT THEY WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR\nOTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT TO ANY CLAIM, CAUSE OF ACTION OR\nSUIT (IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT\nMATTER HEREOF. ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 8(b)\nWITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT\nTO TRIAL BY JURY.\n9. Nothing herein shall preclude the Stryker Advisors from disclosing any Trade Secret Information, to the extent required by applicable law or\nvalid subpoena provided that, with respect to each of the foregoing and: (i) the Stryker Advisors shall notify Orthovita of the existence, terms and\ncircumstances surrounding such disclosure as far in advance as is reasonably practicable and consult with Orthovita on the advisability of taking\nsteps available under applicable law to resist or narrow the scope of any such compelled disclosure, (ii) the Stryker Advisors shall reasonably\ncooperate with Orthovita in taking any such steps to resist or narrow the scope of any such disclosure as may be requested by Orthovita, (iii) the\nStryker Advisors shall exercise their reasonable best efforts to provide such information on a confidential basis or obtain an order or other assurance\nthat confidential treatment will be accorded to such information, and (iv) the Stryker Advisors shall exercise their reasonable best efforts to permit\nOrthovita or its counsel, at Orthovita’s expense, to attend all depositions and other proceedings pertaining to such disclosure.\n10. The Parties hereby agree that this Agreement shall not be construed in any manner to be an obligation to proceed with the Proposed\nTransaction.\n11. Orthovita shall not use the disclosure of the Trade Secret Information to the Stryker Advisors to disqualify the Stryker Advisors from\nrepresenting Stryker in any matter.\n3\n12. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which taken\ntogether shall be deemed to constitute one and the same agreement.\n13. All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in\nwriting and shall be deemed to have been duly given if (i) delivered personally to the recipient, (ii) sent to the recipient by reputable express courier\nservice (charges prepaid) or mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid, or (iii) transmitted by\ntelecopy to the recipient with a confirmation copy to follow the next day to be delivered by overnight carrier. Date of service of such notice shall be\n(A) the date such notice is personally delivered, (B) three days after the date of mailing if sent by certified or registered mail, (C) the next business\nday after the date of delivery to the overnight courier if sent by overnight courier or (D) the next business day after the date of transmittal by\ntelecopy. Such notices, demands and other communications shall be sent to the addresses indicated below or to such other address or to the attention\nof such other person as the recipient Party has specified by prior written notice to the sending Party.\n(a) if to Stryker, to\nStryker Corporation\n325 Corporate Drive\nMahwah, NJ 07430\nAttention: Legal Department, Stryker Orthopaedics\nFacsimile: (201) 831-4704\nwith a copy to:\nKing & Spalding LLP\n1700 Pennsylvania Avenue, NW\nWashington, DC 20006\nAttention: Pamela F. Forrest\nFacsimile: (202) 626-3737\nand to:\nLerner, David, Littenberg, Krumholz & Mentlik LLP\n600 South Avenue West\nWestfield, NJ 07090\nAttention: Keith E. Gilman\nFacsimile: (908) 654-7866\n(b) if to Orthovita, to:\nOrthovita, Inc.\n77 Great Valley Parkway\nMalvern, PA 19355\nAttention: General Counsel\nFacsimile: (610) 640-2603\n4\n14.\n(a) No failure or delay by any Party in exercising any right, power or privilege hereunder will operate as a wavier thereof, nor will any\nsingle or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder.\n(b) This Agreement and the Existing Confidentiality Agreement (which shall remain in full force and effect) embody the entire agreement\nand understanding of the Parties with respect to the subject matter hereof and supersede all prior discussions, negotiations, agreements\nand understandings among the Parties with respect to the subject matter hereof and thereof.\n(c) This Agreement supplements but does not replace or supersede any prior agreements between the parties relating to the exchange of\nconfidential information in connection with the Possible Transaction, including the Existing Confidentiality Agreement.\n(d) This Agreement may be amended only by a writing signed by all Parties hereto.\n(e) No Party may assign this Agreement or any of its rights hereunder without the written consent of the other Parties, without the prior\nexpress written approval of the other Parties. This Agreement shall be binding and inure to the benefit of the Parties, and their respective\nsuccessors and assigns.\n15. For purposes of this Agreement, “Affiliate(s)” means, as to any person(s) or entity(ies), that directly or indirectly through on or more\nintermediaries, controls, is controlled by, or is under common control with, person(s) or entity(ies). Each Party shall cause each of its controlled\nAffiliates to comply with the terms of this Agreement as if such controlled Affiliate were a Party hereto.\n16. If any portion or provision of this Agreement shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction,\nthen the remainder of this Agreement, or the application of such portion or provision in circumstances other than those as to which it is so declared\nillegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest\nextent permitted by applicable law.\n5\nIN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above.\nSTRYKER CORPORATION\nORTHOVITA, INC.\nBy: /s/ Bryant Zanko\nBy: /s/ Antony Koblish\nName: Bryant Zanko\nName: Antony Koblish\nTitle: VP, Business Development\nTitle: President and CEO\nKING & SPALDING LLP\nLERNER DAVID LITTENBERG\nKRUMHOLZ & MENTLIK LLP\nBy: /s/ Pamela F. Forrest\nBy: /s/ Keith E. Gilman\nName: Pamela F. Forrest\nName: Keith E. Gilman\nTitle: Partner\nTitle: Partner\n6\n[ORTHOVITA, INC. LETTERHEAD]\nMay 8, 2011\nBryant Zanko\nVice President, Business Development\nStryker Corporation\n2725 Fairfield Road\nKalamazoo, MI 49002\nDear Bryant:\nReference is made to that certain letter agreement dated as of January 18, 2011 by and between Orthovita, Inc. (the “Company”) and Stryker\nCorporation (“Stryker”), as amended on February 25, 2011 (the “Agreement”). Capitalized terms used herein and not otherwise defined herein shall\nhave the meanings given to them in the Agreement.\nStryker has requested that Orthovita disclose certain trade secrets to certain of its employees (the “Stryker Trade Secret Recipients” as set forth\nbelow) as part of the evaluation of a possible negotiated transaction between the parties. By execution and delivery of this letter, Stryker agrees that\nthe Stryker Trade Secret Recipients may receive access to the trade secrets described below, which trade secrets are included within the definition of\nEvaluation Materials under the Agreement:\nInformation or materials that have, are related to or reflect processing techniques pertaining to pepsinized, soluable collagen and/or pepsinized,\nsoluable collagen in solution with thrombin.\nThe “Stryker Trade Secret Recipients” are: William Cymbaluk, Vice President of Clinical/Quality/Regulatory Affairs; Anthony Faucette, Sr.\nManager, Sterilization Sciences; Rod Parker, Sr. Clinical Sciences Manager; and Leisel Masson, Sr. Microbiologist.\nStryker further agrees that it shall inform the Stryker Trade Secret Recipients of the confidential nature of the trade secrets described herein and shall\nbe directed by Stryker, and shall have agreed or shall otherwise be bound by an obligation, to treat such information confidential in accordance with\nthe Agreement.\nExcept as specifically provided herein all other terms and conditions of the Agreement shall remain unchanged and in full force and effect.\nIf you are in agreement with the foregoing, please sign and return one copy of this letter.\nVery truly yours,\nORTHOVITA, INC.\nBy: /s/ Antony Koblish\nAntony Koblish,\nPresident and Chief Executive Officer\nAccepted and agreed to as of the date hereof:\nStryker Corporation\nBy: /s/ Bryant Zanko\nBryant Zanko\nVice President, Business Development\n2 EX-99.(E)(2) 3 dex99e2.htm CONFIDENTIALITY AGREEMENT\nExhibit ()(2)\n[ORTHOVITA LETTERHEAD]\nJanuary 18, 2011\nBryant Zanko\nVice President, Business Development\nStryker Corporation\n2725 Fairfield Road\nKalamazoo, MI 49002\nDear Bryant:\n3«\nYou have requested information regarding Orthovita, Inc. (the “Company”, “us” or “we”) in connection with your consideration of a possible\nnegotiated transaction with the Company (a “Possible Transaction”). For purposes of this agreement, the term “Company” includes the Company\nand its subsidiaries taken as a whole or any business or businesses thereof. In consideration of our furnishing you with the Evaluation Materials (as\ndefined below) you agree as follows:\nConfidentiality of Evaluation Materials\nYou will treat confidentially any information (whether written or oral) that either we or our financial advisor, J.P. Morgan Securities LLC (the\n“Financial Advisor”), or our other representatives furnish to you in connection with a Possible Transaction involving the Company, whether\nfurnished before or after the date of this agreement and regardless of the manner in which it is furnished, together with analyses, compilations,\nstudies or other documents prepared by you, or by your representatives (as defined hereinafter) which contain or otherwise reflect such information\nor your review of, or interest in, the Company (collectively, the “Evaluation Materials”).\nThe term “Evaluation Materials” includes information furnished to you orally or in writing (whatever the form or storage medium) or gathered by\ninspection, and regardless of whether such information is specifically identified as “confidential” including, but not limited to, all conversations,\nmeetings, negotiations, discussions, internal memoranda, documents and notes involving the Company and the Possible Transaction. The term\n“Evaluation Materials” does not include information which (i) is or becomes generally available to you or the public other than as a result of a\ndisclosure by you or your representatives, (ii) was or becomes available to you on a non-confidential basis from a source other than the Company or\nits representatives, provided that to your knowledge, after due inquiry, such source is not prohibited from disclosing such information to you by a\ncontractual, legal or fiduciary obligation to the Company or its representatives or (iii) is independently developed by you without violating your\nobligations hereunder.\nUse of Evaluation Materials\nYou will not use any of the Evaluation Materials for any purpose other than the exclusive purpose of evaluating a Possible Transaction. Except as\nrequired by law, you and your representatives will keep the Evaluation Materials confidential; provided, however, that (i) such information may be\ndisclosed to those of your directors, officers, employees, affiliates, agents and representatives (including attorneys, accountants and financial\nadvisors), lenders and other sources of debt financing (collectively, “your representatives”) who need to know such information for the purpose of\nevaluating a Possible Transaction between you and the Company (it being understood that your representatives shall be informed by you of the\nconfidential nature of such information and shall be directed by you to treat such information as confidential in accordance with this agreement and\nshall be under obligations of confidentiality with respect to such information) and (ii) any other disclosure of such information may only be made if\nthe Company consents in writing prior to any such disclosure. Without limiting the generality of the foregoing, in the event that a Possible\nTransaction is not consummated, neither you nor your representatives shall use any of the Evaluation Materials for any purpose. You will be\nresponsible for any breach of this agreement by you or your representatives.\nYou hereby acknowledge that the Company is a publicly traded company. You further hereby acknowledge that you are aware, and that you will\nadvise your representatives who are informed as to the matters which are the subject of this agreement, that the United States securities laws prohibit\nany person who has received from an issuer material, non-public information from purchasing or selling securities of such issuer or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase\nor sell such securities.\nIf you become aware of any unauthorized disclosure or use of any Evaluation Materials, you hereby covenant to promptly notify the Company.\nMoreover, upon the request of the Company, you shall cooperate in assisting the Company in terminating or preventing any third parties from\ndisseminating or using the Evaluation Materials.\nIn the event that you or any of your representatives receive a request or are required (by deposition, interrogatory, request for documents, subpoena,\ncivil investigative demand or similar process) to disclose all or any part of the Evaluation Materials, you or your representatives, as the case may be,\nhereby agree to (i) immediately notify the Company of the existence, terms and circumstances surrounding such request, (ii) unless to the extent\nlegally impracticable, consult with the Company on the advisability of taking legally available steps to resist or narrow such request and (iii) unless\nto the extent legally impracticable, afford the Company with the opportunity to seek a protective order or other appropriate remedy. If your or your\nrepresentatives’ counsel advises that you or your representatives are legally compelled to disclose the Evaluation Materials to any person, (i) you or\nyour representatives, as the case may be, may, without liability hereunder, disclose to such person only that portion of the Evaluation Materials\nwhich your counsel advised you is legally required to be disclosed. You agree to cooperate with the Company, at the Company’s expense, to obtain\nassurance that confidential treatment will be accorded such Evaluation Materials.\n2\nNon-Disclosure\nThe disclosure of your possible interest in a Possible Transaction could have a material adverse effect on the Company and its business if for any\nreason an agreement of purchase and sale is not consummated or a disclosure is made prior to the closing of a Possible Transaction. Accordingly,\nunless required by applicable law or regulatory authority, you agree that prior to the closing of a Possible Transaction, without the prior written\nconsent of the Company, you will not, and you will direct your representatives not to, disclose to any person the fact that the Evaluation Materials\nhave been made available to you, discussions or negotiations have taken or are taking place concerning a Possible Transaction between the Company\nand you or any of the terms, conditions or other facts with respect to any such Possible Transaction, including the status thereof. The term “person”\nas used in this agreement shall be broadly interpreted to include, without limitation, the media, any corporation or limited liability company, the\nCompany, governmental agency or body, stock exchange, partnership, association or individual.\nOwnership and Return of Evaluation Materials\nAll Evaluation Materials disclosed by or on behalf of the Company shall be and shall remain in the property of the Company. Upon the Company’s\nrequest, you shall promptly deliver to the Company or destroy all written Evaluation Materials without retaining, in whole or in part, any copies,\nextracts or other reproductions (whatever the form or storage medium) of such materials, and shall certify the delivery or destruction, as applicable,\nof all such materials in writing to the Company; provided that economic analyses, privileged communication with your counsel and other proprietary\ndocumentation shall not be required to be delivered to the Company but shall be destroyed as set forth in this sentence and provided further that you\nmay retain one copy of the Evaluation Materials in a secure location within your Legal Department. Notwithstanding the return or destruction of the\nEvaluation Materials, you and your representatives will continue to be bound by your obligations of confidentiality and other obligations hereunder.\nNo Unauthorized Contact or Solicitation\nDuring the course of your evaluation, all inquiries and other communications are to be made directly to the Financial Advisor or employees or\nrepresentatives of the Company specified by the Financial Advisor. Accordingly, except as set forth in the preceding sentence, you agree not to\ndirectly or indirectly contact or communicate with any executive or other employee of the Company (in their capacities as officers or employees of\nthe Company) concerning a Possible Transaction, or to seek any information in connection therewith from such person, without the express written\nconsent of the Financial Advisor. You also agree not to discuss with or offer to any third party any equity participation in a Possible Transaction or\nany other form of joint acquisition by you and such third party without the prior written consent of the Company.\nWithout the Company’s prior written consent, you will not for a period of eighteen months after the date of this agreement directly or indirectly\nsolicit for employment any person who is now employed by the Company in an executive-level position, or any person who is now employed by the\nCompany in a management-level position at the Company’s headquarters in Malvern, Pennsylvania, provided that you are not prohibited from\nemploying any such person who contacts you on his or her own initiative and without any direct or indirect solicitation by you\n3\nand the term “solicit for employment” shall not be deemed to include general solicitations of employment not specifically directed toward employees\nof the Company.\nStandstill\nYou agree that until eighteen months after the date of this agreement, you will not without the prior approval of the Board of Directors of the\nCompany (i) acquire or make any proposal to acquire any securities or property of the Company or to acquire any ability to exercise voting or\ndispositive power with respect to any securities of the Company, (ii) propose to enter into any merger or business combination involving the\nCompany or purchase a material portion of the assets of the Company, (iii) make or participate in any solicitation of proxies to vote, or seek to advise\nor influence any person with respect to the voting of any securities of the Company, (iv) form, join or participate in a “group” (within the meaning of\nSection 13(d)(3) of the Securities Exchange Act of 1934, as amended), with respect to any voting securities of the Company, (v) otherwise act or\nseek to control or influence the management, Board of Directors or policies of the Company, (vi) disclose any intention, plan or arrangement\ninconsistent with the foregoing or (vii) take any action which might require the Company to make a public announcement regarding the possibility of\na business combination or merger. You also agree during such period not to request the Company (or its directors, officers, employees, agents or\nrepresentatives) to amend or waive any provision of this paragraph unless specifically invited to do so by the Board of Directors of the Company.\nNotwithstanding the restrictions in this paragraph, after the Company has announced that it has entered into a definitive written agreement with a\nthird party with respect to a business combination transaction that, if consummated, would result in a transfer of corporate control of the Company,\nyou may make an acquisition proposal to the Company’s Board of Directors.\nNo Representation or Warranty\nYou acknowledge and agree that none of the Company, the Financial Advisor, or any of their respective representatives or agents is making any\nrepresentation or warranty, expressed or implied, as to the accuracy or completeness of the Evaluation Materials, and none of the Company, the\nFinancial Advisor, or any of their respective representatives or agents, nor any of their respective officers, directors, employees, representatives,\nstockholders, owners, affiliates, advisors or agents, will have any liability to you or any other person resulting from the use of Evaluation Materials\nby you or any of your representatives. Furthermore, nothing contained herein shall constitute an obligation on the part of the Company, the Financial\nAdvisor, or any of their respective representatives or agents to provide Evaluation Materials or to update any Evaluation Materials provided\nhereunder. Only those representations or warranties that are made to you in a definitive agreement for the Possible Transaction (“Definitive\nAgreement”) when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such Definitive Agreement, will\nhave any legal effect. For purposes of this agreement, the term “Definitive Agreement” does not include an executed non-binding letter of intent or\nany other non-binding written agreement, nor does it include any oral acceptance of an offer or bid by you.\nYou also acknowledge and agree that no contract or agreement providing for the sale of the Company or any interest in the Company shall be\ndeemed to exist between you and the Company unless and until a Definitive Agreement has been executed and delivered by you and each of the\n4\nother parties thereto, and you hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with the sale of\nthe Company or any interest in the Company unless and until a Definitive Agreement has been executed and delivered by you and each of the other\nparties thereto. You also agree that unless and until a Definitive Agreement between the Company and you with respect to the acquisition of the\nCompany or any interest in the Company has been executed and delivered by you and each of the other parties thereto, there shall not be any legal\nobligation of any kind whatsoever with respect to any such transaction by virtue of this agreement or any other written or oral expression with\nrespect to such transaction except, in the case of this agreement, for the matters specifically agreed to herein.\nYou further understand and agree that (i) the Company and the Financial Advisor shall be free to conduct any process for the sale of the Company or\nany interest in the Company as they in their sole discretion shall determine (including, without limitation, negotiating with any prospective\ncounterparty and entering into a Definitive Agreement without prior notice to you or to any other person), (ii) any procedures relating to such sale\nmay be changed at any time without notice to you or any other person and (iii) you shall not have any claims whatsoever against the Company, the\nFinancial Advisor or any of their respective directors, officers, employees, stockholders, owners, affiliates, agents or representatives arising out of or\nrelating to a Possible Transaction involving the Company. You further understand and agree that the Company reserves the right, in its sole\ndiscretion, to reject any and all proposals made by you or any of your representatives with regard to any Possible Transaction, and to terminate\ndiscussions and negotiations with you at any time. Neither this paragraph nor any other provision in this agreement can be waived or amended\nexcept by written consent of the Company, which consent shall specifically refer to this paragraph (or such provision) and explicitly make such\nwaiver or amendment.\nLegal Remedy\nYou understand and agree that money damages would not be a sufficient remedy for any breach of this agreement by you or your representatives and\nthat the Company will be entitled to specific performance and injunctive relief as remedies for any such breach. Such remedies shall not be deemed\nto be the exclusive remedies for a breach of this agreement by you or your representatives but shall be in addition to all other remedies available at\nlaw or equity. In the event of litigation relating to this agreement, if a court of competent jurisdiction determines that you or your representatives\nhave breached this agreement, then you shall reimburse the Company for its reasonable legal fees and expenses incurred in connection with such\nlitigation, including any appeals therefrom. Similarly, if a court of competent jurisdiction determines that you and/or your representatives did not\nbreach this agreement, then the Company shall reimburse you and/or your representatives for your reasonable legal fees and expenses incurred in\nconnection with such litigation, including any appeals therefrom.\nOther\nThis agreement constitutes the entire agreement between the parties hereto regarding the subject matter hereof. This agreement may be changed only\nby a written agreement signed by the parties hereto or their authorized representatives.\n5\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, you and the Company understand and agree\nthat you and the Company have a commonality of interest with respect to such matters and it is the Company’s and your desire, intention and mutual\nunderstanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or\nits continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided\nthat is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such\nprotection under these privileges, this agreement, and under the joint defense doctrine.\nIf any term or provision of this agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms\nand provisions of this agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.\nThe parties understand and agree that no failure or delay by the other party in exercising any right, power or privilege under this agreement shall\noperate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or future exercise of any right, power or privilege\nhereunder.\nThis agreement shall be governed by and construed in accordance with the laws of the State of New York. You also hereby irrevocably and\nunconditionally consent to submit to the exclusive jurisdiction of the courts of the State of New York and the United States of America, in each case\nlocated in the County of New York, for any actions, suits or proceedings arising out of or relating to this agreement and the transactions\ncontemplated hereby (and you agree not to commence any action, suit or proceeding relating thereto except in such courts, and further agree that\nservice of any process, summons, notice or document by U.S. registered mail to your address set forth above shall be effective service of process for\nany action, suit or proceeding brought against you in any such court). You hereby irrevocably and unconditionally waive any objection to the laying\nof venue of any action, suit or proceeding arising out of this agreement or the transactions contemplated hereby, in the courts of the State of New\nYork or the United States of America, in each case located in the County of New York, and hereby further irrevocably and unconditionally waive and\nagree not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient\nforum.\nThis agreement shall terminate two years after the date hereof.\nIf you are in agreement with the foregoing, please sign and return one copy of this agreement, it being understood that all counterpart copies will\nconstitute but one agreement with respect to the subject matter of this letter.\nVery truly yours,\nORTHOVITA, INC.\nBy: /s/ Antony Koblish\nAntony Koblish,\nPresident and Chief Executive Officer\nAccepted and agreed to as of the date hereof;\nStryker Corporation\nBy: /s/ Bryant Zanko\nBryant Zanko\nVice President, Business Development\n[ORTHOVITA, INC. LETTERHEAD]\nFebruary 25, 2011\nBryant Zanko\nVice President, Business Development\nStryker Corporation\n2725 Fairfield Road\nKalamazoo, MI 49002\nDear Bryant:\nReference is made to that certain letter agreement dated as of January 18, 2011 (the “Agreement”) by and between Orthovita, Inc. (the “Company”)\nand Stryker Corporation (“Stryker”) in connection with Stryker’s consideration of a possible negotiated transaction with the Company. Capitalized\nterms used herein and not otherwise defined herein shall have the meanings given to them in the Agreement.\nIn order for Stryker to receive access to a substantial amount of diligence information regarding the Company as part of the next phase of the process\ncontemplated under the Agreement, the Company requires Stryker to amend the Agreement in order to extend the confidentiality period thereunder\napplicable to trade secrets.\nAccordingly, the sentence on the last page of the Agreement that states, “This agreement shall terminate two years after the date hereof,” is amended\nand restated in its entirety to read as follows:\n“This agreement shall terminate two years after the date hereof, provided that the obligations set forth under Use of Evaluation Materials\ninsofar as they relate to the use and disclosure of a trade secret shall continue for so long as such trade secret continues to be a trade secret as\ndefined under 18 U.S.C. §1839(3)(A), (B) (1996), and only if the Company identified the general subject matter of such trade secret to you in\nwriting prior to disclosure to you and gave you the opportunity to decline receipt of such trade secret. Neither the foregoing nor the restrictions\nin this agreement applicable to trade secrets is intended to preclude you from using residual knowledge retained in intangible form in the\nunaided memories of your directors, employees, contractors and advisors as a result of exposure to the Company’s Evaluation Material. The\nCompany acknowledges that you may have in conception or development technology that may be very similar or even identical to the\nCompany’s trade secrets disclosed as part of the Evaluation Material.”\nExcept as specifically provided herein all other terms and conditions of the Agreement shall remain unchanged and in full force and effect.\nIf you are in agreement with the foregoing, please sign and return one copy of this amendment to the Agreement, it being understood that all\ncounterpart copies will constitute but one agreement with respect to the subject matter of this letter.\nVery truly yours,\nORTHOVITA, INC.\nBy: /s/ Antony Koblish\nAntony Koblish,\nPresident and Chief Executive Officer\nAccepted and agreed to as of the date hereof:\nStryker Corporation\nBy: /s/ Bryant Zanko\nBryant Zanko\nVice President, Business Development\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is made as of April 27, 2011 by and among Stryker Corporation, a Michigan\ncorporation (collectively with its subsidiaries and Affiliates, “Stryker”); King & Spalding LLP (“K&S”) and Lerner, David, Littenberg, Krumholz &\nMentlik LLP (“LDLKM?”), counsel to Stryker (collectively, “the Stryker Advisors”); and Orthovita, Inc., a Pennsylvania corporation (collectively\nwith its subsidiaries and Affiliates, “Orthovita”) (all heretofore named parties are collectively referred to herein as the “Parties”).\nRECITALS\nWHEREAS, Stryker and Orthovita are exploring a possible business relationship, arrangement or transaction with each other (the “Possible\nTransaction”);\nWHEREAS, Stryker and Orthovita entered into a January 18, 2011 letter agreement relating to confidentiality, as amended February 25, 2011\n(the “Existing Confidentiality Agreement”);\nWHEREAS, Stryker has retained the Stryker Advisors to provide legal assistance in connection with the Possible Transaction (the\n“Evaluation”);\nWHEREAS, the Parties wish to facilitate the provision by Orthovita of information and materials to the Stryker Advisors, but also desire to\nensure that appropriate safeguards and restrictions are followed with respect to the transmittal of any such information and materials to the Stryker\nAdvisors.\nNOW, THEREFORE, in consideration of the promises and the mutual covenants contained herein, and for other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:\n1. In order to permit Stryker to conduct the Evaluation, Orthovita or its employees, officers, or other representatives will provide to the Stryker\nAdvisors, orally, in writing, or by other means, the Trade Secret Information (as defined below). The Stryker Advisors agree that they will use the\nTrade Secret Information only for the purposes of the Evaluation and will not share with Stryker or any other person any Trade Secret Information\nexcept in accordance with the terms of this Agreement or as authorized in advance in writing by Orthovita or its representative.\n2. As used in this agreement, the term “Trade Secret Information” means information or materials that have, are related to or reflecting\n(A) collagen processing techniques pertaining to medical grade collagen, Vitagel, Vitastat and other hemostat products, (B) details of the\ncomposition of, exact formulations of raw materials, quality assurance test release criteria and manufacturing processes for Vitoss, Vitoss BA, Vitoss\nFoam Products, Vitoss Flowable Products, Vitoss Elemental, Vitoss BA Bimodal, Vitoss BA2X, Vitagel, Vitastat and BA PEEK, (C) exact method\nof making combeite (heat-treated bioactive glass), (D) sileanation of bioactive\nglass (currently used in Cortoss), (E) details of the Cortoss formulation and manufacturing process.\nTrade Secret Information shall not include, however, information that (i) is or has been made available to Stryker by Orthovita or its representatives\n(provided that this subsection (i) shall not apply to Trade Secret Information made available to Stryker by the Stryker Advisors), (ii) is or becomes\navailable to the public other than as a result of disclosure in breach of this Agreement, or (iii) is or becomes available to Stryker or the Stryker\nAdvisors from a source other than Orthovita or its representatives, provided that, to the best of Stryker’s or a Stryker Advisor’s knowledge, such\nsource is in lawful possession of such information and is not bound by any agreement with Orthovita to keep such information confidential, or\notherwise prohibited from transmitting such information to Stryker or any Stryker Advisor.\n3. Nothing in this Agreement shall (i) prohibit the Stryker Advisors from conducting investigations based on the Trade Secret Information,\nprovided that no source of information under such investigation is known by Stryker or any Stryker Advisor, to the best of its knowledge, to be\nbound by any agreement with Orthovita to keep such information confidential, and otherwise is not prohibited from transmitting such information to\nStryker or any Stryker Advisor, (ii) prohibit the Stryker Advisors from advising Stryker regarding the Stryker Advisors’ opinions based on their\ninvestigations, and the general reasons for its opinions, about any matters for which the Stryker Advisors are engaged to advise Stryker, or\n(iii) require the Stryker Advisors to obtain prior review or approval from Orthovita before rendering such opinions to Stryker.\n4. The Stryker Advisors shall not disclose Trade Secret Information to any third party, including a third party consultant engaged to assist in\nthe Evaluation (a “Consultant”) unless, prior to any such disclosure, such Consultant agrees in writing to be bound by the terms of this Agreement,\nthe Stryker Advisors notify Orthovita of the identity of such Consultant and Orthovita approves in writing the disclosure of Trade Secret Information\nto such Consultant.\n5. To the extent that Stryker inadvertently receives information, whether oral or written, that it reasonably believes constitutes, contains, or\ndiscloses Trade Secret Information, Stryker shall: (i) promptly report such receipt to Orthovita; and (ii) promptly turn over all originals and copies\n(including all electronic copies in any media) of such Trade Secret Information, to the extent it is written, to Orthovita. If confirmed to be Trade\nSecret Information, Stryker agrees to maintain such Trade Secret Information in confidence so long as it remains a trade secret. If not confirmed to\nbe Trade Secret Information, Orthovita shall return all materials turned over by Stryker to the extent that the Evaluation is ongoing.\n6. Upon the request of Orthovita or its representative, and within two (2) weeks after such request (unless another time frame is agreed to in\nwriting by the Parties), the Stryker Advisors shall return all originals and copies of any Trade Secret Information (including all electronic copies in\nany media) to Orthovita and shall destroy all notes, hard copies and electronic copies, that contain or disclose Trade Secret Information, and shall\ncertify as to such destruction to Orthovita in writing.\n7. Each of Stryker and the Stryker Advisors acknowledges that money damages are an inadequate remedy for breach of this Agreement\nbecause of the difficulty of ascertaining the amount of damage that may be suffered in the event that this Agreement is breached and other factors,\nincluding irreparable injury to Orthovita. Therefore, Orthovita shall be entitled to such equitable relief as may be appropriate, including an injunction\nand specific performance, in the event of any breach of the provisions of this Agreement by any other Party, in addition to all other remedies\navailable to Orthovita at law or in equity.\n8.\n(a) This Agreement and all disputes or controversies arising out of or relating to or seeking to enforce this Agreement shall be governed by,\nand construed in accordance with, the internal laws of the State of Delaware, without regard to the laws of any other jurisdiction that\nmight be applied because of the conflicts of laws principles.\n(b) TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, THE PARTIES HERETO\nHEREBY WAIVE AND COVENANT THAT THEY WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR\nOTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT TO ANY CLAIM, CAUSE OF ACTION OR\nSUIT (IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT\nMATTER HEREOF. ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 8(b)\nWITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT\nTO TRIAL BY JURY.\n9. Nothing herein shall preclude the Stryker Advisors from disclosing any Trade Secret Information, to the extent required by applicable law or\nvalid subpoena provided that, with respect to each of the foregoing and: (i) the Stryker Advisors shall notify Orthovita of the existence, terms and\ncircumstances surrounding such disclosure as far in advance as is reasonably practicable and consult with Orthovita on the advisability of taking\nsteps available under applicable law to resist or narrow the scope of any such compelled disclosure, (ii) the Stryker Advisors shall reasonably\ncooperate with Orthovita in taking any such steps to resist or narrow the scope of any such disclosure as may be requested by Orthovita, (iii) the\nStryker Advisors shall exercise their reasonable best efforts to provide such information on a confidential basis or obtain an order or other assurance\nthat confidential treatment will be accorded to such information, and (iv) the Stryker Advisors shall exercise their reasonable best efforts to permit\nOrthovita or its counsel, at Orthovita’s expense, to attend all depositions and other proceedings pertaining to such disclosure.\n10. The Parties hereby agree that this Agreement shall not be construed in any manner to be an obligation to proceed with the Proposed\nTransaction.\n11. Orthovita shall not use the disclosure of the Trade Secret Information to the Stryker Advisors to disqualify the Stryker Advisors from\nrepresenting Stryker in any matter.\n12. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which taken\ntogether shall be deemed to constitute one and the same agreement.\n13. All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in\nwriting and shall be deemed to have been duly given if (i) delivered personally to the recipient, (ii) sent to the recipient by reputable express courier\nservice (charges prepaid) or mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid, or (iii) transmitted by\ntelecopy to the recipient with a confirmation copy to follow the next day to be delivered by overnight carrier. Date of service of such notice shall be\n(A) the date such notice is personally delivered, (B) three days after the date of mailing if sent by certified or registered mail, (C) the next business\nday after the date of delivery to the overnight courier if sent by overnight courier or (D) the next business day after the date of transmittal by\ntelecopy. Such notices, demands and other communications shall be sent to the addresses indicated below or to such other address or to the attention\nof such other person as the recipient Party has specified by prior written notice to the sending Party.\n(a) if to Stryker, to\nStryker Corporation\n325 Corporate Drive\nMahwah, NJ 07430\nAttention: Legal Department, Stryker Orthopaedics\nFacsimile: (201) 831-4704\nwith a copy to:\nKing & Spalding LLP\n1700 Pennsylvania Avenue, NW\nWashington, DC 20006\nAttention: Pamela F. Forrest\nFacsimile: (202) 626-3737\nand to:\nLerner, David, Littenberg, Krumholz & Mentlik LLP\n600 South Avenue West\nWestfield, NJ 07090\nAttention: Keith E. Gilman\nFacsimile: (908) 654-7866\n(b) if to Orthovita, to:\nOrthovita, Inc.\n77 Great Valley Parkway\nMalvern, PA 19355\nAttention: General Counsel\nFacsimile: (610) 640-2603\n14. (a)\n(b)\n()\n(d)\n(e)\nNo failure or delay by any Party in exercising any right, power or privilege hereunder will operate as a wavier thereof, nor will any\nsingle or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder.\nThis Agreement and the Existing Confidentiality Agreement (which shall remain in full force and effect) embody the entire agreement\nand understanding of the Parties with respect to the subject matter hereof and supersede all prior discussions, negotiations, agreements\nand understandings among the Parties with respect to the subject matter hereof and thereof.\nThis Agreement supplements but does not replace or supersede any prior agreements between the parties relating to the exchange of\nconfidential information in connection with the Possible Transaction, including the Existing Confidentiality Agreement.\nThis Agreement may be amended only by a writing signed by all Parties hereto.\nNo Party may assign this Agreement or any of its rights hereunder without the written consent of the other Parties, without the prior\nexpress written approval of the other Parties. This Agreement shall be binding and inure to the benefit of the Parties, and their respective\nsuccessors and assigns.\n15. For purposes of this Agreement, “Affiliate(s)” means, as to any person(s) or entity(ies), that directly or indirectly through on or more intermediaries, controls, is controlled by, or is under common control with, person(s) or entity(ies). Each Party shall cause each of its controlled Affiliates to comply with the terms of this Agreement as if such controlled Affiliate were a Party hereto. 16. If any portion or provision of this Agreement shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of this Agreement, or the application of such portion or provision in circumstances other than those as to which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law.\fIN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above. STRYKER CORPORATION By:\n/s/ Bryant Zanko\nName: Bryant Zanko Title:\nVP, Business Development\nKING & SPALDING LLP By:\n/s/ Pamela F. Forrest\nName: Pamela F. Forrest Title:\nPartner\nORTHOVITA, INC.\nBy: /s/ Antony Koblish\nName: Antony Koblish\nTitle: President and CEO\nLERNER DAVID LITTENBERG\nKRUMHOLZ & MENTLIK LLP\nBy: /s/ Keith E. Gilman\nName: Keith E. Gilman\nTitle: Partner\n[ORTHOVITA, INC. LETTERHEAD]\nMay 8, 2011\nBryant Zanko\nVice President, Business Development\nStryker Corporation\n2725 Fairfield Road\nKalamazoo, MI 49002\nDear Bryant:\nReference is made to that certain letter agreement dated as of January 18, 2011 by and between Orthovita, Inc. (the “Company”) and Stryker\nCorporation (“Stryker”), as amended on February 25, 2011 (the “Agreement”). Capitalized terms used herein and not otherwise defined herein shall\nhave the meanings given to them in the Agreement.\nStryker has requested that Orthovita disclose certain trade secrets to certain of its employees (the “Stryker Trade Secret Recipients” as set forth\nbelow) as part of the evaluation of a possible negotiated transaction between the parties. By execution and delivery of this letter, Stryker agrees that\nthe Stryker Trade Secret Recipients may receive access to the trade secrets described below, which trade secrets are included within the definition of\nEvaluation Materials under the Agreement:\nInformation or materials that have, are related to or reflect processing techniques pertaining to pepsinized, soluable collagen and/or pepsinized,\nsoluable collagen in solution with thrombin.\nThe “Stryker Trade Secret Recipients” are: William Cymbaluk, Vice President of Clinical/Quality/Regulatory Affairs; Anthony Faucette, Sr.\nManager, Sterilization Sciences; Rod Parker, Sr. Clinical Sciences Manager; and Leisel Masson, Sr. Microbiologist.\nStryker further agrees that it shall inform the Stryker Trade Secret Recipients of the confidential nature of the trade secrets described herein and shall\nbe directed by Stryker, and shall have agreed or shall otherwise be bound by an obligation, to treat such information confidential in accordance with\nthe Agreement.\nExcept as specifically provided herein all other terms and conditions of the Agreement shall remain unchanged and in full force and effect.\nIf you are in agreement with the foregoing, please sign and return one copy of this letter.\nVery truly yours,\nORTHOVITA, INC.\nBy: /s/ Antony Koblish\nAntony Koblish,\nPresident and Chief Executive Officer\nAccepted and agreed to as of the date hereof:\nStryker Corporation\nBy: /s/ Bryant Zanko\nBryant Zanko\nVice President, Business Development X-99.(E)(2) 3 dex99e2.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(2)\n[ORTHOVITA LETTERHEAD]\nJanuary 18, 2011\nBryant Zanko\nVice President, Business Development\nStryker Corporation\n2725 Fairfield Road\nKalamazoo, MI 49002\nDear Bryant:\nYou have requested information regarding Orthovita, Inc. (the "Company", "us" or "we") in connection with your consideration of a possible\nnegotiated transaction with the Company (a "Possible Transaction"). For purposes of this agreement, the term "Company" includes the Company\nand its subsidiaries taken as a whole or any business or businesses thereof. In consideration of our furnishing you with the Evaluation Materials (as\ndefined below) you agree as follows:\nConfidentiality. of Evaluation Materials\nYou will treat confidentially any information (whether written or oral) that either we or our financial advisor, J.P. Morgan Securities LLC (the\n"Financial Advisor"), or our other representatives furnish to you in connection with a Possible Transaction involving the Company, whether\nfurnished before or after the date of this agreement and regardless of the manner in which it is furnished, together with analyses, compilations,\nstudies or other documents prepared by you, or by your representatives (as defined hereinafter) which contain or otherwise reflect such information\nor your review of, or interest in, the Company (collectively, the "Evaluation Materials").\nThe term "Evaluation Materials" includes information furnished to you orally or in writing (whatever the form or storage medium) or gathered by\ninspection, and regardless of whether such information is specifically identified as "confidential" including, but not limited to, all conversations,\nmeetings, negotiations, discussions, internal memoranda, documents and notes involving the Company and the Possible Transaction. The term\ndisclosure by you or your representatives, (ii) was or becomes available to you on a non-confidential basis from a source other than the Company\n"Evaluation Materials" does not include information which (i) is or becomes generally available to you or the public other than as a result of a or\nits representatives, provided that to your knowledge, after due inquiry, such source is not prohibited from disclosing such information to you by a\ncontractual, legal or fiduciary obligation to the Company or its representatives or (iii) is independently developed by you without violating your\nobligations hereunder.\nUse of Evaluation Materials\nYou will not use any of the Evaluation Materials for any purpose other than the exclusive purpose of evaluating a Possible Transaction. Except as\nrequired by law, you and your representatives will keep the Evaluation Materials confidential; provided, however, that (i) such information may be\ndisclosed to those of your directors, officers, employees, affiliates, agents and representatives (including attorneys, accountants and financial\nadvisors), lenders and other sources of debt financing (collectively, "your representatives") who need to know such information for the purpose of\nevaluating a Possible Transaction between you and the Company (it being understood that your representatives shall be informed by you of the\nconfidential nature of such information and shall be directed by you to treat such information as confidentia in accordance with this agreement and\nshall be under obligations of confidentiality with respect to such information) and (ii) any other disclosure of such information may only be made if\nthe Company consents in writing prior to any such disclosure. Without limiting the generality of the foregoing, in the event that a Possible\nTransaction is not consummated, neither you nor your representatives shall use any of the Evaluation Materials for any purpose. You will\nbe\nresponsible for any breach of this agreement by you or your representatives.\nYou hereby acknowledge that the Company is a publicly traded company. You further hereby acknowledge that you are aware, and that you will\nadvise your representatives who are informed as to the matters which are the subject of this agreement, that the United States securities laws prohibit\nany person who has received from an issuer material, non-public information from purchasing or selling securities of such issuer or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase\nor sell such securities.\nIf you become aware of any unauthorized disclosure or use of any Evaluation Materials, you hereby covenant to promptly notify the Company.\nMoreover, upon the request of the Company, you shall cooperate in assisting the Company in terminating or preventing any third parties\nfrom\ndisseminating or using the Evaluation Materials.\nIn the event that you or any of your representatives receive a request or are required (by deposition, interrogatory, request for documents, subpoena,\ncivil investigative demand or similar process) to disclose all or any part of the Evaluation Materials, you or your representatives, as the case may be,\nhereby agree to (i) immediately notify the Company of the existence, terms and circumstances surrounding such request, (ii) unless to the extent\nlegally impracticable, consult with the Company on the advisability of taking legally available steps to resist or narrow such request and (iii) unless\nto the extent legally impracticable, afford the Company with the opportunity to seek a protective order or other appropriate remedy. If your or your\nrepresentatives' counsel advises that you or your representatives are legally compelled to disclose the Evaluation Materials to any person, (i) you or\nyour representatives, as the case may be, may, without liability hereunder, disclose to such person only that portion of the Evaluation Materials\nwhich your counsel advised you is legally required to be disclosed. You agree to cooperate with the Company, at the Company's expense, to obtain\nassurance that confidential treatment will be accorded such Evaluation Materials.\n2\nNon-Disclosure\nThe disclosure of your possible interest in a Possible Transaction could have a material adverse effect on the Company and its business if for any\nreason an agreement of purchase and sale is not consummated or a disclosure is made prior to the closing of a Possible Transaction. Accordingly,\nunless required by applicable law or regulatory authority, you agree that prior to the closing of a Possible Transaction, without the prior written\nconsent\nof\nthe\nCompany,\nyou\nwill\nnot,\nand\nyou\nwill\ndirect\nyour\nrepresentatives\nnot\nto,\ndisclose\nto\nany\nperson\nthe\nfact\nthat\nthe\nEvaluation\nMaterials\nhave been made available to you, discussions or negotiations have taken or are taking place concerning a Possible Transaction between the Company\nand you or any of the terms, conditions or other facts with respect to any such Possible Transaction, including the status thereof. The term "person"\nas used in this agreement shall be broadly interpreted to include, without limitation, the media, any corporation or limited liability company, the\nCompany, governmental agency or body, stock exchange, partnership, association or individual.\nOwnership and Return of Evaluation Materials\nAll Evaluation Materials disclosed by or on behalf of the Company shall be and shall remain in the property of the Company. Upon the Company's\nrequest, you shall promptly deliver to the Company or destroy all written Evaluation Materials without retaining, in whole or in part, any copies,\nextracts or other reproductions (whatever the form or storage medium) of such materials, and shall certify the delivery or destruction, as applicable,\nof all such materials in writing to the Company; provided that economic analyses, privileged communication with your counsel and other proprietary\ndocumentation shall not be required to be delivered to the Company but shall be destroyed as set forth in this sentence and provided further that you\nmay retain one copy of the Evaluation Materials in a secure location within your Legal Department. Notwithstanding the return or destruction of the\nEvaluation Materials, you and your representatives will continue to be bound by your obligations of confidentiality and other obligations hereunder.\nNo Unauthorized Contact or Solicitation\nDuring the course of your evaluation, all inquiries and other communications are to be made directly to the Financial Advisor or employees or\nrepresentatives of the Company specified by the Financial Advisor. Accordingly, except as set forth in the preceding sentence, you agree not to\ndirectly or indirectly contact or communicate with any executive or other employee of the Company (in their capacities as officers or employees of\nthe Company) concerning a Possible Transaction, or to seek any information in connection therewith from such person, without the express written\nconsent of the Financial Advisor. You also agree not to discuss with or offer to any third party any equity participation in a Possible Transaction or\nany other form of joint acquisition by you and such third party without the prior written consent of the Company.\nWithout the Company's prior written consent, you will not for a period of eighteen months after the date of this agreement directly or indirectly\nsolicit for employment any person who is now employed by the Company in an executive-level position, or any person who is now employed by the\nCompany in a management-level position at the Company's headquarters in Malvern, Pennsylvania, provided that you are not prohibited from\nemploying any such person who contacts you on his or her own initiative and without any direct or indirect solicitation by you\n3\nand the term "solicit for employment" shall not be deemed to include general solicitations of employment not specifically directed toward employees\nof the Company.\nStandstill\nYou agree that until eighteen months after the date of this agreement, you will not without the prior approval of the Board of Directors of the\nCompany (i) acquire or make any proposal to acquire any securities or property of the Company or to acquire any ability to exercise voting\nor\ndispositive power with respect to any securities of the Company, (ii) propose to enter into any merger or business combination involving the\nCompany or purchase a material portion of the assets of the Company, (iii) make or participate in any solicitation of proxies to vote, or seek to advise\nor influence any person with respect to the voting of any securities of the Company, (iv) form, join or participate in a "group" (within the meaning of\nSection 13(d)(3) of the Securities Exchange Act of 1934, as amended), with respect to any voting securities of the Company, (v) otherwise act\nor\nseek to control or influence the management, Board of Directors or policies of the Company, (vi) disclose any intention, plan or arrangement\ninconsistent with the foregoing or (vii) take any action which might require the Company to make a public announcement regarding the possibility of\na business combination or merger. You also agree during such period not to request the Company (or its directors, officers, employees, agents\nor\nrepresentatives) to amend or waive any provision of this paragraph unless specifically invited to do so by the Board of Directors of the Company.\nNotwithstanding the restrictions in this paragraph, after the Company has announced that it has entered into a definitive written agreement with\na\nthird party with respect to a business combination transaction that, if consummated, would result in a transfer of corporate control of the Company,\nyou may make an acquisition proposal to the Company's Board of Directors.\nNo Representation or Warranty.\nYou acknowledge and agree that none of the Company, the Financial Advisor, or any of their respective representatives or agents is making\nany\nrepresentation or warranty, expressed or implied, as to the accuracy or completeness of the Evaluation Materials, and none of the Company,\nthe\nFinancial Advisor, or any of their respective representatives or agents, nor any of their respective officers, directors, employees, representatives,\nstockholders, owners, affiliates, advisors or agents, will have any liability to you or any other person resulting from the use of Evaluation Materials\nby you or any of your representatives. Furthermore, nothing contained herein shall constitute an obligation on the part of the Company, the Financial\nAdvisor,\nor any of their respective representatives or agents to provide Evaluation Materials or to update any Evaluation Materials provided\nhereunder. Only those representations or warranties that are made to you in a definitive agreement for the Possible Transaction ("Definitive\nAgreement") when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such Definitive Agreement,\nwill\nhave any legal effect. For purposes of this agreement, the term "Definitive Agreement" does not include an executed non-binding letter of intent or\nany other non-binding written agreement, nor does it include any oral acceptance of an offer or bid by you\nYou also acknowledge and agree that no contract or agreement providing for the sale of the Company or any interest in the Company shall be\ndeemed to exist between you and the Company unless and until a Definitive Agreement has been executed and delivered by you and each of the\n4\nother parties thereto, and you hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with the sale of\nthe Company or any interest in the Company unless and until a Definitive Agreement has been executed and delivered by you and each of the other\nparties thereto. You also agree that unless and until a Definitive Agreement between the Company and you with respect to the acquisition of the\nCompany or any interest in the Company has been executed and delivered by you and each of the other parties thereto, there shall not be any legal\nobligation of any kind whatsoever with respect to any such transaction by virtue of this agreement or any other written or oral expression with\nrespect to such transaction except, in the case of this agreement, for the matters specifically agreed to herein.\nYou further understand and agree that (i) the Company and the Financial Advisor shall be free to conduct any process for the sale of the Company or\nany interest in the Company as they in their sole discretion shall determine (including, without limitation, negotiating with any prospective\ncounterparty and entering into a Definitive Agreement without prior notice to you or to any other person), (ii) any procedures relating to such sale\nmay be changed at any time without notice to you or any other person and (iii) you shall not have any claims whatsoever against the Company, the\nFinancial Advisor or any of their respective directors, officers, employees, stockholders, owners, affiliates, agents or representatives arising out of\nor\nrelating to a Possible Transaction involving the Company. You further understand and agree that the Company reserves the right, in its sole\ndiscretion, to reject any and all proposals made by you or any of your representatives with regard to any Possible Transaction, and to terminate\ndiscussions and negotiations with you at any time. Neither this paragraph nor any other provision in this agreement can be waived or amended\nexcept by written consent of the Company, which consent shall specifically refer to this paragraph (or such provision) and explicitly make such\nwaiver or amendment.\nLegal Remedy.\nYou understand and agree that money damages would not be a sufficient remedy for any breach of this agreement by you or your representatives and\nthat the Company will be entitled to specific performance and injunctive relief as remedies for any such breach. Such remedies shall not be deemed\nto\nbe the exclusive remedies for a breach of this agreement by you or your representatives but shall be in addition to all other remedies available at\nlaw or equity. In the event of litigation relating to this agreement, if a court of competent jurisdiction determines that you or your representatives\nhave breached this agreement, then you shall reimburse the Company for its reasonable legal fees and expenses incurred in connection with such\nlitigation, including any appeals therefrom. Similarly, if a court of competent jurisdiction determines that you and/or your representatives did not\nbreach this agreement, then the Company shall reimburse you and/or your representatives for your reasonable legal fees and expenses incurred\nin\nconnection with such litigation, including any appeals therefrom.\nOther\nThis agreement constitutes the entire agreement between the parties hereto regarding the subject matter hereof. This agreement may be changed only\nby a written agreement signed by the parties hereto or their authorized representatives.\n5\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, you and the Company understand and agree\nthat you and the Company have a commonality of interest with respect to such matters and it is the Company's and your desire, intention and mutual\nunderstanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or\nits continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided\nthat is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such\nprotection under these privileges, this agreement, and under the joint defense doctrine.\nIf any term or provision of this agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms\nand provisions of this agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.\nThe parties understand and agree that no failure or delay by the other party in exercising any right, power or privilege under this agreement\nshall\noperate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or future exercise of any right, power or privilege\nhereunder.\nThis agreement shall be governed by and construed in accordance with the laws of the State of New York. You also hereby irrevocably and\nunconditionally consent to submit to the exclusive jurisdiction of the courts of the State of New York and the United States of America, in each case\nlocated in the County of New York, for any actions, suits or proceedings arising out of or relating to this agreement and the transactions\ncontemplated hereby (and you agree not to commence any action, suit or proceeding relating thereto except in such courts, and further agree that\nservice of any process, summons, notice or document by U.S. registered mail to your address set forth above shall be effective service of process\nfor\nany\naction, suit or proceeding brought against you in any such court). You hereby irrevocably and unconditionally waive any objection to the laying\nof venue of any action, suit or proceeding arising out of this agreement or the transactions contemplated hereby, in the courts of the State of New\nYork or the United States of America, in each case located in the County of New York, and hereby further irrevocably and unconditionally waive\nand\nagree not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient\nforum.\nThis agreement shall terminate two years after the date hereof.\n6\nIf you are in agreement with the foregoing, please sign and return one copy of this agreement, it being understood that all counterpart copies will\nconstitute but one agreement with respect to the subject matter of this letter.\nVery truly yours,\nORTHOVITA, INC.\nBy: /s/ Antony Koblish\nAntony Koblish,\nPresident and Chief Executive Officer\nAccepted and agreed to as of the date hereof;\nStryker Corporation\nBy: /s/ Bryant Zanko\nBryant Zanko\nVice President, Business Development\n7\n[ORTHOVITA, INC. LETTERHEAD]\nFebruary 25, 2011\nBryant Zanko\nVice President, Business Development\nStryker Corporation\n2725 Fairfield Road\nKalamazoo, MI 49002\nDear Bryant:\nReference is made to that certain letter agreement dated as of January 18, 2011 (the "Agreement") by and between Orthovita, Inc. (the "Company")\nand Stryker Corporation ("Stryker") in connection with Stryker's consideration of a possible negotiated transaction with the Company. Capitalized\nterms used herein and not otherwise defined herein shall have the meanings given to them in the Agreement.\nIn order for Stryker to receive access to a substantial amount of diligence information regarding the Company as part of the next phase of the process\ncontemplated under the Agreement, the Company requires Stryker to amend the Agreement in order to extend the confidentiality period thereunder\napplicable to trade secrets.\nAccordingly, the sentence on the last page of the Agreement that states, "This agreement shall terminate two years after the date hereof," is amended\nand restated in its entirety to read as follows:\n"This agreement shall terminate two years after the date hereof, provided that the obligations set forth under Use of Evaluation Materials\ninsofar as they relate to the use and disclosure of a trade secret shall continue for SO long as such trade secret continues to be a trade secret as\ndefined under 18 U.S.C. $1839(3)(A), (B) (1996), and only if the Company identified the general subject matter of such trade secret to you in\nwriting prior to disclosure to you and gave you the opportunity to decline receipt of such trade secret. Neither the foregoing nor the restrictions\nin this agreement applicable to trade secrets is intended to preclude you from using residual knowledge retained in intangible form in the\nunaided memories of your directors, employees, contractors and advisors as a result of exposure to the Company's Evaluation Material. The\nCompany acknowledges that you may have in conception or development technology that may be very similar or even identical to the\nCompany's trade secrets disclosed as part of the Evaluation Material."\nExcept as specifically provided herein all other terms and conditions of the Agreement shall remain unchanged and in full force and effect.\nIf\nyou are in agreement with the foregoing, please sign and return one copy of this amendment to the Agreement, it being understood that all\ncounterpart copies will constitute but one agreement with respect to the subject matter of this letter.\nVery truly yours,\nORTHOVITA, INC.\nBy: /s/ Antony Koblish\nAntony Koblish,\nPresident and Chief Executive Officer\nAccepted and agreed to as of the date hereof:\nStryker Corporation\nBy: /s/ Bryant Zanko\nBryant Zanko\nVice President, Business Development\n2\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT ("Agreement") is made as of April 27, 2011 by and among Stryker Corporation, a Michigan\ncorporation (collectively with its subsidiaries and Affiliates, "Stryker"); King & Spalding LLP ("K&S") and Lerner, David, Littenberg, Krumholz\n&\nMentlik LLP ("LDLKM"), counsel to Stryker (collectively, "the Stryker Advisors"); and Orthovita, Inc., a Pennsylvania corporation (collectively\nwith its subsidiaries and Affiliates, "Orthovita") (all heretofore named parties are collectively referred to herein as the "Parties").\nRECITALS\nWHEREAS, Stryker and Orthovita are exploring a possible business relationship, arrangement or transaction with each other (the "Possible\nTransaction");\nWHEREAS, Stryker and Orthovita entered into a January 18, 2011 letter agreement relating to confidentiality, as amended February 25, 2011\n(the "Existing Confidentiality Agreement");\nWHEREAS, Stryker has retained the Stryker Advisors to provide legal assistance in connection with the Possible Transaction (the\n"Evaluation");\nWHEREAS, the Parties wish to facilitate the provision by Orthovita of information and materials to the Stryker Advisors, but also desire to\nensure that appropriate safeguards and restrictions are followed with respect to the transmittal of any such information and materials to the Stryker\nAdvisors.\nNOW, THEREFORE, in consideration of the promises and the mutual covenants contained herein, and for other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:\n1. In order to permit Stryker to conduct the Evaluation, Orthovita or its employees, officers, or other representatives will provide to the Stryker\nAdvisors, orally, in writing, or by other means, the Trade Secret Information (as defined below). The Stryker Advisors agree that they will use the\nTrade Secret Information only for the purposes of the Evaluation and will not share with Stryker or any other person any Trade Secret Information\nexcept in accordance with the terms of this Agreement or as authorized in advance in writing by Orthovita or its representative.\n2. As used in this agreement, the term "Trade Secret Information" means information or materials that have, are related to or reflecting\n(A)\ncollagen processing techniques pertaining to medical grade collagen, Vitagel, Vitastat and other hemostat products, (B) details of the\ncomposition of, exact formulations of raw materials, quality assurance test release criteria and manufacturing processes for Vitoss, Vitoss BA, Vitoss\nFoam Products, Vitoss Flowable Products, Vitoss Elemental, Vitoss BA Bimodal, Vitoss BA2X, Vitagel, Vitastat and BA PEEK, (C) exact method\nof making combeite (heat-treated bioactive glass), (D) sileanation of bioactive\nglass (currently used in Cortoss), (E) details of the Cortoss formulation and manufacturing process.\nTrade Secret Information shall not include, however, information that (i) is or has been made available to Stryker by Orthovita or its representatives\n(provided that this subsection (i) shall not apply to Trade Secret Information made available to Stryker by the Stryker Advisors), (ii) is or becomes\navailable to the public other than as a result of disclosure in breach of this Agreement, or (iii) is or becomes available to Stryker or the Stryker\nAdvisors\nfrom\na\nsource\nother\nthan\nOrthovita\nor\nits\nrepresentatives,\nprovided\nthat,\nto\nthe\nbest\nof\nStryker's\nor\na\nStryker\nAdvisor's\nknowledge,\nsuch\nsource is in lawful possession of such information and is not bound by any agreement with Orthovita to keep such information confidential,\nor\notherwise prohibited from transmitting such information to Stryker or any Stryker Advisor.\n3. Nothing in this Agreement shall (i) prohibit the Stryker Advisors from conducting investigations based on the Trade Secret Information,\nprovided that no source of information under such investigation is known by Stryker or any Stryker Advisor, to the best of its knowledge, to be\nbound\nby\nany\nagreement with Orthovita to keep such information confidential, and otherwise is not prohibited from transmitting such information\nto\nStryker or any Stryker Advisor, (ii) prohibit the Stryker Advisors from advising Stryker regarding the Stryker Advisors' opinions based on their\ninvestigations, and the general reasons for its opinions, about any matters for which the Stryker Advisors are engaged to advise Stryker, or\n(iii) require the Stryker Advisors to obtain prior review or approval from Orthovita before rendering such opinions to Stryker.\n4. The Stryker Advisors shall not disclose Trade Secret Information to any third party, including a third party consultant engaged to assist in\nthe Evaluation (a "Consultant") unless, prior to any such disclosure, such Consultant agrees in writing to be bound by the terms of this Agreement,\nthe Stryker Advisors notify Orthovita of the identity of such Consultant and Orthovita approves in writing the disclosure of Trade Secret Information\nto such Consultant.\n5. To the extent that Stryker inadvertently receives information, whether oral or written, that it reasonably believes constitutes, contains, or\ndiscloses Trade Secret Information, Stryker shall: (i) promptly report such receipt to Orthovita; and (ii) promptly turn over all originals and copies\n(including all electronic copies in any media) of such Trade Secret Information, to the extent it is written, to Orthovita. If confirmed to be Trade\nSecret Information, Stryker agrees to maintain such Trade Secret Information in confidence so long as it remains a trade secret. If not confirmed to\nbe Trade Secret Information, Orthovita shall return all materials turned over by Stryker to the extent that the Evaluation is ongoing.\n6. Upon the request of Orthovita or its representative, and within two (2) weeks after such request (unless another time frame is agreed to\nin\nwriting by the Parties), the Stryker Advisors shall return all originals and copies of any Trade Secret Information (including all electronic copies in\nany media) to Orthovita and shall destroy all notes, hard copies and electronic copies, that contain or disclose Trade Secret Information, and shall\ncertify as to such destruction to Orthovita in writing.\n2\n7. Each of Stryker and the Stryker Advisors acknowledges that money damages are an inadequate remedy for breach of this Agreement\nbecause of the difficulty of ascertaining the amount of damage that may be suffered in the event that this Agreement is breached and other factors,\nincluding irreparable injury to Orthovita. Therefore, Orthovita shall be entitled to such equitable relief as may be appropriate, including an injunction\nand specific performance, in the event of any breach of the provisions of this Agreement by any other Party, in addition to all other remedies\navailable to Orthovita at law or in equity.\n8.\n(a)\nThis Agreement and all disputes or controversies arising out of or relating to or seeking to enforce this Agreement shall be governed by,\nand construed in accordance with, the internal laws of the State of Delaware, without regard to the laws of any other jurisdiction that\nmight be applied because of the conflicts of laws principles.\n(b)\nTO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, THE PARTIES HERETO\nHEREBY WAIVE AND COVENANT THAT THEY WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR\nOTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT TO ANY CLAIM, CAUSE OF ACTION OR\nSUIT (IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT\nMATTER HEREOF. ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 8(b)\nWITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT\nTO TRIAL BY JURY.\n9. Nothing herein shall preclude the Stryker Advisors from disclosing any Trade Secret Information, to the extent required by applicable law\nor\nvalid\nsubpoena\nprovided\nthat,\nwith\nrespect\nto\neach\nof\nthe\nforegoing\nand:\n(i)\nthe\nStryker\nAdvisors\nshall\nnotify\nOrthovita\nof\nthe\nexistence,\nterms\nand\ncircumstances surrounding such disclosure as far in advance as is reasonably practicable and consult with Orthovita on the advisability of taking\nsteps available under applicable law to resist or narrow the scope of any such compelled disclosure, (ii) the Stryker Advisors shall reasonably\ncooperate with Orthovita in taking any such steps to resist or narrow the scope of any such disclosure as may be requested by Orthovita, (iii) the\nStryker Advisors shall exercise their reasonable best efforts to provide such information on a confidential basis or obtain an order or other assurance\nthat confidential treatment will be accorded to such information, and (iv) the Stryker Advisors shall exercise their reasonable best efforts to permit\nOrthovita or its counsel, at Orthovita's expense, to attend all depositions and other proceedings pertaining to such disclosure.\n10. The Parties hereby agree that this Agreement shall not be construed in any manner to be an obligation to proceed with the Proposed\nTransaction.\n11. Orthovita shall not use the disclosure of the Trade Secret Information to the Stryker Advisors to disqualify the Stryker Advisors from\nrepresenting Stryker in any matter.\n3\n12. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which taken\ntogether shall be deemed to constitute one and the same agreement.\n13. All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in\nwriting and shall be deemed to have been duly given if (i) delivered personally to the recipient, (ii) sent to the recipient by reputable express courier\nservice\n(charges prepaid) or mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid, or (iii) transmitted by\ntelecopy to the recipient with a confirmation copy to follow the next day to be delivered by overnight carrier. Date of service of such notice shall be\n(A) the date such notice is personally delivered, (B) three days after the date of mailing if sent by certified or registered mail, (C) the next business\nday after the date of delivery to the overnight courier if sent by overnight courier or (D) the next business day after the date of transmittal by\ntelecopy. Such notices, demands and other communications shall be sent to the addresses indicated below or to such other address or to the attention\nof such other person as the recipient Party has specified by prior written notice to the sending Party.\n(a)\nif to Stryker, to\nStryker Corporation\n325 Corporate Drive\nMahwah, NJ 07430\nAttention: Legal Department, Stryker Orthopaedics\nFacsimile: (201) 831-4704\nwith a copy to:\nKing & Spalding LLP\n1700 Pennsylvania Avenue, NW\nWashington, DC 20006\nAttention: Pamela F. Forrest\nFacsimile: (202) 626-3737\nand to:\nLerner, David, Littenberg, Krumholz & Mentlik LLP\n600 South Avenue West\nWestfield, NJ 07090\nAttention: Keith E. Gilman\nFacsimile: (908) 654-7866\n(b)\nif to Orthovita, to:\nOrthovita, Inc.\n77 Great Valley Parkway\nMalvern, PA 19355\nAttention: General Counsel\nFacsimile: (610) 640-2603\n4\n14.\n(a)\nNo failure or delay by any Party in exercising any right, power or privilege hereunder will operate as a wavier thereof, nor will any\nsingle or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder.\n(b)\nThis Agreement and the Existing Confidentiality Agreement (which shall remain in full force and effect) embody the entire agreement\nand understanding of the Parties with respect to the subject matter hereof and supersede all prior discussions, negotiations, agreements\nand understandings among the Parties with respect to the subject matter hereof and thereof.\n(c) This Agreement supplements but does not replace or supersede any prior agreements between the parties relating to the exchange of\nconfidential information in connection with the Possible Transaction, including the Existing Confidentiality Agreement.\n(d) This Agreement may be amended only by a writing signed by all Parties hereto.\n(e) No Party may assign this Agreement or any of its rights hereunder without the written consent of the other Parties, without the prior\nexpress written approval of the other Parties. This Agreement shall be binding and inure to the benefit of the Parties, and their respective\nsuccessors and assigns.\n15. For purposes of this Agreement, "Affiliate(s)" means, as to any person(s) or entity(ies), that directly or indirectly through on or more\nintermediaries, controls, is controlled by, or is under common control with, person(s) or entity(ies). Each Party shall cause each of its controlled\nAffiliates to comply with the terms of this Agreement as if such controlled Affiliate were a Party hereto.\n16. If any portion or provision of this Agreement shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction,\nthen the remainder of this Agreement, or the application of such portion or provision in circumstances other than those as to which it is SO declared\nillegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest\nextent permitted by applicable law.\n5\nIN\nWITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above.\nSTRYKER CORPORATION\nORTHOVITA, INC.\nBy:\n/s/ Bryant Zanko\nBy:\n/s/ Antony Koblish\nName: Bryant Zanko\nName: Antony Koblish\nTitle: VP, Business Development\nTitle: President and CEO\nKING & SPALDING LLP\nLERNER DAVID LITTENBERG\nKRUMHOLZ & MENTLIK LLP\nBy:\n/s/ Pamela F. Forrest\nBy:\n/s/ Keith E. Gilman\nName: Pamela F. Forrest\nName: Keith E. Gilman\nTitle: Partner\nTitle: Partner\n6\n[ORTHOVITA, INC. LETTERHEAD]\nMay 8, 2011\nBryant Zanko\nVice President, Business Development\nStryker Corporation\n2725 Fairfield Road\nKalamazoo, MI 49002\nDear Bryant:\nReference is made to that certain letter agreement dated as of January 18, 2011 by and between Orthovita, Inc. (the "Company") and Stryker\nCorporation ("Stryker"), as amended on February 25, 2011 (the "Agreement"). Capitalized terms used herein and not otherwise defined herein shall\nhave the meanings given to them in the Agreement.\nStryker has requested that Orthovita disclose certain trade secrets to certain of its employees (the "Stryker Trade Secret Recipients" as set forth\nbelow) as part of the evaluation of a possible negotiated transaction between the parties. By execution and delivery of this letter, Stryker agrees that\nthe Stryker Trade Secret Recipients may receive access to the trade secrets described below, which trade secrets are included within the definition\nof\nEvaluation Materials under the Agreement:\nInformation or materials that have, are related to or reflect processing techniques pertaining to pepsinized, soluable collagen and/or pepsinized,\nsoluable collagen in solution with thrombin.\nThe "Stryker Trade Secret Recipients" are: William Cymbaluk, Vice President of Clinical/Quality/Regulatory Affairs; Anthony Faucette, Sr.\nManager, Sterilization Sciences; Rod Parker, Sr. Clinical Sciences Manager; and Leisel Masson, Sr. Microbiologist.\nStryker further agrees that it shall inform the Stryker Trade Secret Recipients of the confidential nature of the trade secrets described herein and shall\nbe directed by Stryker, and shall have agreed or shall otherwise be bound by an obligation, to treat such information confidential in accordance with\nthe Agreement.\nExcept as specifically provided herein all other terms and conditions of the Agreement shall remain unchanged and in full force and effect.\nIf you are in agreement with the foregoing, please sign and return one copy of this letter.\nVery truly yours,\nORTHOVITA, INC.\nBy: /s/ Antony Koblish\nAntony Koblish,\nPresident and Chief Executive Officer\nAccepted and agreed to as of the date hereof:\nStryker Corporation\nBy: /s/ Bryant Zanko\nBryant Zanko\nVice President, Business Development\n2 EX-99.(E)(2) 3 dex99e2.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(2)\n[ORTHOVITA LETTERHEAD]\nJanuary 18, 2011\nBryant Zanko\nVice President, Business Development\nStryker Corporation\n2725 Fairfield Road\nKalamazoo, MI 49002\nDear Bryant:\nYou have requested information regarding Orthovita, Inc. (the “Company”, “us” or “we”) in connection with your consideration of a possible\nnegotiated transaction with the Company (a “Possible Transaction”). For purposes of this agreement, the term “Company” includes the Company\nand its subsidiaries taken as a whole or any business or businesses thereof. In consideration of our furnishing you with the Evaluation Materials (as\ndefined below) you agree as follows:\nConfidentiality of Evaluation Materials\nYou will treat confidentially any information (whether written or oral) that either we or our financial advisor, J.P. Morgan Securities LLC (the\n“Financial Advisor”), or our other representatives furnish to you in connection with a Possible Transaction involving the Company, whether\nfurnished before or after the date of this agreement and regardless of the manner in which it is furnished, together with analyses, compilations,\nstudies or other documents prepared by you, or by your representatives (as defined hereinafter) which contain or otherwise reflect such information\nor your review of, or interest in, the Company (collectively, the “Evaluation Materials”).\nThe term “Evaluation Materials” includes information furnished to you orally or in writing (whatever the form or storage medium) or gathered by\ninspection, and regardless of whether such information is specifically identified as “confidential” including, but not limited to, all conversations,\nmeetings, negotiations, discussions, internal memoranda, documents and notes involving the Company and the Possible Transaction. The term\n“Evaluation Materials” does not include information which (i) is or becomes generally available to you or the public other than as a result of a\ndisclosure by you or your representatives, (ii) was or becomes available to you on a non-confidential basis from a source other than the Company or\nits representatives, provided that to your knowledge, after due inquiry, such source is not prohibited from disclosing such information to you by a\ncontractual, legal or fiduciary obligation to the Company or its representatives or (iii) is independently developed by you without violating your\nobligations hereunder.\nUse of Evaluation Materials\nYou will not use any of the Evaluation Materials for any purpose other than the exclusive purpose of evaluating a Possible Transaction. Except as\nrequired by law, you and your representatives will keep the Evaluation Materials confidential; provided, however, that (i) such information may be\ndisclosed to those of your directors, officers, employees, affiliates, agents and representatives (including attorneys, accountants and financial\nadvisors), lenders and other sources of debt financing (collectively, “your representatives”) who need to know such information for the purpose of\nevaluating a Possible Transaction between you and the Company (it being understood that your representatives shall be informed by you of the\nconfidential nature of such information and shall be directed by you to treat such information as confidential in accordance with this agreement and\nshall be under obligations of confidentiality with respect to such information) and (ii) any other disclosure of such information may only be made if\nthe Company consents in writing prior to any such disclosure. Without limiting the generality of the foregoing, in the event that a Possible\nTransaction is not consummated, neither you nor your representatives shall use any of the Evaluation Materials for any purpose. You will be\nresponsible for any breach of this agreement by you or your representatives.\nYou hereby acknowledge that the Company is a publicly traded company. You further hereby acknowledge that you are aware, and that you will\nadvise your representatives who are informed as to the matters which are the subject of this agreement, that the United States securities laws prohibit\nany person who has received from an issuer material, non-public information from purchasing or selling securities of such issuer or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase\nor sell such securities.\nIf you become aware of any unauthorized disclosure or use of any Evaluation Materials, you hereby covenant to promptly notify the Company.\nMoreover, upon the request of the Company, you shall cooperate in assisting the Company in terminating or preventing any third parties from\ndisseminating or using the Evaluation Materials.\nIn the event that you or any of your representatives receive a request or are required (by deposition, interrogatory, request for documents, subpoena,\ncivil investigative demand or similar process) to disclose all or any part of the Evaluation Materials, you or your representatives, as the case may be,\nhereby agree to (i) immediately notify the Company of the existence, terms and circumstances surrounding such request, (ii) unless to the extent\nlegally impracticable, consult with the Company on the advisability of taking legally available steps to resist or narrow such request and (iii) unless\nto the extent legally impracticable, afford the Company with the opportunity to seek a protective order or other appropriate remedy. If your or your\nrepresentatives’ counsel advises that you or your representatives are legally compelled to disclose the Evaluation Materials to any person, (i) you or\nyour representatives, as the case may be, may, without liability hereunder, disclose to such person only that portion of the Evaluation Materials\nwhich your counsel advised you is legally required to be disclosed. You agree to cooperate with the Company, at the Company’s expense, to obtain\nassurance that confidential treatment will be accorded such Evaluation Materials.\n2\nNon-Disclosure\nThe disclosure of your possible interest in a Possible Transaction could have a material adverse effect on the Company and its business if for any\nreason an agreement of purchase and sale is not consummated or a disclosure is made prior to the closing of a Possible Transaction. Accordingly,\nunless required by applicable law or regulatory authority, you agree that prior to the closing of a Possible Transaction, without the prior written\nconsent of the Company, you will not, and you will direct your representatives not to, disclose to any person the fact that the Evaluation Materials\nhave been made available to you, discussions or negotiations have taken or are taking place concerning a Possible Transaction between the Company\nand you or any of the terms, conditions or other facts with respect to any such Possible Transaction, including the status thereof. The term “person”\nas used in this agreement shall be broadly interpreted to include, without limitation, the media, any corporation or limited liability company, the\nCompany, governmental agency or body, stock exchange, partnership, association or individual.\nOwnership and Return of Evaluation Materials\nAll Evaluation Materials disclosed by or on behalf of the Company shall be and shall remain in the property of the Company. Upon the Company’s\nrequest, you shall promptly deliver to the Company or destroy all written Evaluation Materials without retaining, in whole or in part, any copies,\nextracts or other reproductions (whatever the form or storage medium) of such materials, and shall certify the delivery or destruction, as applicable,\nof all such materials in writing to the Company; provided that economic analyses, privileged communication with your counsel and other proprietary\ndocumentation shall not be required to be delivered to the Company but shall be destroyed as set forth in this sentence and provided further that you\nmay retain one copy of the Evaluation Materials in a secure location within your Legal Department. Notwithstanding the return or destruction of the\nEvaluation Materials, you and your representatives will continue to be bound by your obligations of confidentiality and other obligations hereunder.\nNo Unauthorized Contact or Solicitation\nDuring the course of your evaluation, all inquiries and other communications are to be made directly to the Financial Advisor or employees or\nrepresentatives of the Company specified by the Financial Advisor. Accordingly, except as set forth in the preceding sentence, you agree not to\ndirectly or indirectly contact or communicate with any executive or other employee of the Company (in their capacities as officers or employees of\nthe Company) concerning a Possible Transaction, or to seek any information in connection therewith from such person, without the express written\nconsent of the Financial Advisor. You also agree not to discuss with or offer to any third party any equity participation in a Possible Transaction or\nany other form of joint acquisition by you and such third party without the prior written consent of the Company.\nWithout the Company’s prior written consent, you will not for a period of eighteen months after the date of this agreement directly or indirectly\nsolicit for employment any person who is now employed by the Company in an executive-level position, or any person who is now employed by the\nCompany in a management-level position at the Company’s headquarters in Malvern, Pennsylvania, provided that you are not prohibited from\nemploying any such person who contacts you on his or her own initiative and without any direct or indirect solicitation by you\n3\nand the term “solicit for employment” shall not be deemed to include general solicitations of employment not specifically directed toward employees\nof the Company.\nStandstill\nYou agree that until eighteen months after the date of this agreement, you will not without the prior approval of the Board of Directors of the\nCompany (i) acquire or make any proposal to acquire any securities or property of the Company or to acquire any ability to exercise voting or\ndispositive power with respect to any securities of the Company, (ii) propose to enter into any merger or business combination involving the\nCompany or purchase a material portion of the assets of the Company, (iii) make or participate in any solicitation of proxies to vote, or seek to advise\nor influence any person with respect to the voting of any securities of the Company, (iv) form, join or participate in a “group” (within the meaning of\nSection 13(d)(3) of the Securities Exchange Act of 1934, as amended), with respect to any voting securities of the Company, (v) otherwise act or\nseek to control or influence the management, Board of Directors or policies of the Company, (vi) disclose any intention, plan or arrangement\ninconsistent with the foregoing or (vii) take any action which might require the Company to make a public announcement regarding the possibility of\na business combination or merger. You also agree during such period not to request the Company (or its directors, officers, employees, agents or\nrepresentatives) to amend or waive any provision of this paragraph unless specifically invited to do so by the Board of Directors of the Company.\nNotwithstanding the restrictions in this paragraph, after the Company has announced that it has entered into a definitive written agreement with a\nthird party with respect to a business combination transaction that, if consummated, would result in a transfer of corporate control of the Company,\nyou may make an acquisition proposal to the Company’s Board of Directors.\nNo Representation or Warranty\nYou acknowledge and agree that none of the Company, the Financial Advisor, or any of their respective representatives or agents is making any\nrepresentation or warranty, expressed or implied, as to the accuracy or completeness of the Evaluation Materials, and none of the Company, the\nFinancial Advisor, or any of their respective representatives or agents, nor any of their respective officers, directors, employees, representatives,\nstockholders, owners, affiliates, advisors or agents, will have any liability to you or any other person resulting from the use of Evaluation Materials\nby you or any of your representatives. Furthermore, nothing contained herein shall constitute an obligation on the part of the Company, the Financial\nAdvisor, or any of their respective representatives or agents to provide Evaluation Materials or to update any Evaluation Materials provided\nhereunder. Only those representations or warranties that are made to you in a definitive agreement for the Possible Transaction (“Definitive\nAgreement”) when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such Definitive Agreement, will\nhave any legal effect. For purposes of this agreement, the term “Definitive Agreement” does not include an executed non-binding letter of intent or\nany other non-binding written agreement, nor does it include any oral acceptance of an offer or bid by you.\nYou also acknowledge and agree that no contract or agreement providing for the sale of the Company or any interest in the Company shall be\ndeemed to exist between you and the Company unless and until a Definitive Agreement has been executed and delivered by you and each of the\n4\nother parties thereto, and you hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with the sale of\nthe Company or any interest in the Company unless and until a Definitive Agreement has been executed and delivered by you and each of the other\nparties thereto. You also agree that unless and until a Definitive Agreement between the Company and you with respect to the acquisition of the\nCompany or any interest in the Company has been executed and delivered by you and each of the other parties thereto, there shall not be any legal\nobligation of any kind whatsoever with respect to any such transaction by virtue of this agreement or any other written or oral expression with\nrespect to such transaction except, in the case of this agreement, for the matters specifically agreed to herein.\nYou further understand and agree that (i) the Company and the Financial Advisor shall be free to conduct any process for the sale of the Company or\nany interest in the Company as they in their sole discretion shall determine (including, without limitation, negotiating with any prospective\ncounterparty and entering into a Definitive Agreement without prior notice to you or to any other person), (ii) any procedures relating to such sale\nmay be changed at any time without notice to you or any other person and (iii) you shall not have any claims whatsoever against the Company, the\nFinancial Advisor or any of their respective directors, officers, employees, stockholders, owners, affiliates, agents or representatives arising out of or\nrelating to a Possible Transaction involving the Company. You further understand and agree that the Company reserves the right, in its sole\ndiscretion, to reject any and all proposals made by you or any of your representatives with regard to any Possible Transaction, and to terminate\ndiscussions and negotiations with you at any time. Neither this paragraph nor any other provision in this agreement can be waived or amended\nexcept by written consent of the Company, which consent shall specifically refer to this paragraph (or such provision) and explicitly make such\nwaiver or amendment.\nLegal Remedy\nYou understand and agree that money damages would not be a sufficient remedy for any breach of this agreement by you or your representatives and\nthat the Company will be entitled to specific performance and injunctive relief as remedies for any such breach. Such remedies shall not be deemed\nto be the exclusive remedies for a breach of this agreement by you or your representatives but shall be in addition to all other remedies available at\nlaw or equity. In the event of litigation relating to this agreement, if a court of competent jurisdiction determines that you or your representatives\nhave breached this agreement, then you shall reimburse the Company for its reasonable legal fees and expenses incurred in connection with such\nlitigation, including any appeals therefrom. Similarly, if a court of competent jurisdiction determines that you and/or your representatives did not\nbreach this agreement, then the Company shall reimburse you and/or your representatives for your reasonable legal fees and expenses incurred in\nconnection with such litigation, including any appeals therefrom.\nOther\nThis agreement constitutes the entire agreement between the parties hereto regarding the subject matter hereof. This agreement may be changed only\nby a written agreement signed by the parties hereto or their authorized representatives.\n5\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, you and the Company understand and agree\nthat you and the Company have a commonality of interest with respect to such matters and it is the Company’s and your desire, intention and mutual\nunderstanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or\nits continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided\nthat is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such\nprotection under these privileges, this agreement, and under the joint defense doctrine.\nIf any term or provision of this agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms\nand provisions of this agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.\nThe parties understand and agree that no failure or delay by the other party in exercising any right, power or privilege under this agreement shall\noperate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or future exercise of any right, power or privilege\nhereunder.\nThis agreement shall be governed by and construed in accordance with the laws of the State of New York. You also hereby irrevocably and\nunconditionally consent to submit to the exclusive jurisdiction of the courts of the State of New York and the United States of America, in each case\nlocated in the County of New York, for any actions, suits or proceedings arising out of or relating to this agreement and the transactions\ncontemplated hereby (and you agree not to commence any action, suit or proceeding relating thereto except in such courts, and further agree that\nservice of any process, summons, notice or document by U.S . registered mail to your address set forth above shall be effective service of process for\nany action, suit or proceeding brought against you in any such court). You hereby irrevocably and unconditionally waive any objection to the laying\nof venue of any action, suit or proceeding arising out of this agreement or the transactions contemplated hereby, in the courts of the State of New\nYork or the United States of America, in each case located in the County of New York, and hereby further irrevocably and unconditionally waive and\nagree not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient\nforum.\nThis agreement shall terminate two years after the date hereof.\n6\nIf you are in agreement with the foregoing, please sign and return one copy of this agreement, it being understood that all counterpart copies will\nconstitute but one agreement with respect to the subject matter of this letter.\nVery truly yours,\nORTHOVITA, INC.\nBy: /s/ Antony Koblish\nAntony Koblish,\nPresident and Chief Executive Officer\nAccepted and agreed to as of the date hereof;\nStryker Corporation\nBy: /s/ Bryant Zanko\nBryant Zanko\nVice President, Business Development\n7\n[ORTHOVITA, INC. LETTERHEAD]\nFebruary 25, 2011\nBryant Zanko\nVice President, Business Development\nStryker Corporation\n2725 Fairfield Road\nKalamazoo, MI 49002\nDear Bryant:\nReference is made to that certain letter agreement dated as of January 18, 2011 (the “Agreement”) by and between Orthovita, Inc. (the “Company”)\nand Stryker Corporation (“Stryker”) in connection with Stryker’s consideration of a possible negotiated transaction with the Company. Capitalized\nterms used herein and not otherwise defined herein shall have the meanings given to them in the Agreement.\nIn order for Stryker to receive access to a substantial amount of diligence information regarding the Company as part of the next phase of the process\ncontemplated under the Agreement, the Company requires Stryker to amend the Agreement in order to extend the confidentiality period thereunder\napplicable to trade secrets.\nAccordingly, the sentence on the last page of the Agreement that states, “This agreement shall terminate two years after the date hereof,” is amended\nand restated in its entirety to read as follows:\n“This agreement shall terminate two years after the date hereof, provided that the obligations set forth under Use of Evaluation Materials\ninsofar as they relate to the use and disclosure of a trade secret shall continue for so long as such trade secret continues to be a trade secret as\ndefined under 18 U.S.C . §1839(3)(A), (B) (1996), and only if the Company identified the general subject matter of such trade secret to you in\nwriting prior to disclosure to you and gave you the opportunity to decline receipt of such trade secret. Neither the foregoing nor the restrictions\nin this agreement applicable to trade secrets is intended to preclude you from using residual knowledge retained in intangible form in the\nunaided memories of your directors, employees, contractors and advisors as a result of exposure to the Company’s Evaluation Material. The\nCompany acknowledges that you may have in conception or development technology that may be very similar or even identical to the\nCompany’s trade secrets disclosed as part of the Evaluation Material.”\nExcept as specifically provided herein all other terms and conditions of the Agreement shall remain unchanged and in full force and effect.\nIf you are in agreement with the foregoing, please sign and return one copy of this amendment to the Agreement, it being understood that all\ncounterpart copies will constitute but one agreement with respect to the subject matter of this letter.\nVery truly yours,\nORTHOVITA, INC.\nBy: /s/ Antony Koblish\nAntony Koblish,\nPresident and Chief Executive Officer\nAccepted and agreed to as of the date hereof:\nStryker Corporation\nBy: /s/ Bryant Zanko\nBryant Zanko\nVice President, Business Development\n2\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is made as of April 27, 2011 by and among Stryker Corporation, a Michigan\ncorporation (collectively with its subsidiaries and Affiliates, “Stryker”); King & Spalding LLP (“K&S”) and Lerner, David, Littenberg, Krumholz &\nMentlik LLP (“LDLKM”), counsel to Stryker (collectively, “the Stryker Advisors”); and Orthovita, Inc., a Pennsylvania corporation (collectively\nwith its subsidiaries and Affiliates, “Orthovita”) (all heretofore named parties are collectively referred to herein as the “Parties”).\nRECITALS\nWHEREAS, Stryker and Orthovita are exploring a possible business relationship, arrangement or transaction with each other (the “Possible\nTransaction”);\nWHEREAS, Stryker and Orthovita entered into a January 18, 2011 letter agreement relating to confidentiality, as amended February 25, 2011\n(the “Existing Confidentiality Agreement”);\nWHEREAS, Stryker has retained the Stryker Advisors to provide legal assistance in connection with the Possible Transaction (the\n“Evaluation”);\nWHEREAS, the Parties wish to facilitate the provision by Orthovita of information and materials to the Stryker Advisors, but also desire to\nensure that appropriate safeguards and restrictions are followed with respect to the transmittal of any such information and materials to the Stryker\nAdvisors.\nNOW, THEREFORE, in consideration of the promises and the mutual covenants contained herein, and for other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:\n1. In order to permit Stryker to conduct the Evaluation, Orthovita or its employees, officers, or other representatives will provide to the Stryker\nAdvisors, orally, in writing, or by other means, the Trade Secret Information (as defined below). The Stryker Advisors agree that they will use the\nTrade Secret Information only for the purposes of the Evaluation and will not share with Stryker or any other person any Trade Secret Information\nexcept in accordance with the terms of this Agreement or as authorized in advance in writing by Orthovita or its representative.\n2. As used in this agreement, the term “Trade Secret Information” means information or materials that have, are related to or reflecting\n(A) collagen processing techniques pertaining to medical grade collagen, Vitagel, Vitastat and other hemostat products, (B) details of the\ncomposition of, exact formulations of raw materials, quality assurance test release criteria and manufacturing processes for Vitoss, Vitoss BA, Vitoss\nFoam Products, Vitoss Flowable Products, Vitoss Elemental, Vitoss BA Bimodal, Vitoss BA2X, Vitagel, Vitastat and BA PEEK, (C) exact method\nof making combeite (heat-treated bioactive glass), (D) sileanation of bioactive\nglass (currently used in Cortoss), (E) details of the Cortoss formulation and manufacturing process.\nTrade Secret Information shall not include, however, information that (i) is or has been made available to Stryker by Orthovita or its representatives\n(provided that this subsection (i) shall not apply to Trade Secret Information made available to Stryker by the Stryker Advisors), (ii) is or becomes\navailable to the public other than as a result of disclosure in breach of this Agreement, or (iii) is or becomes available to Stryker or the Stryker\nAdvisors from a source other than Orthovita or its representatives, provided that, to the best of Stryker’s or a Stryker Advisor’s knowledge, such\nsource is in lawful possession of such information and is not bound by any agreement with Orthovita to keep such information confidential, or\notherwise prohibited from transmitting such information to Stryker or any Stryker Advisor.\n3. Nothing in this Agreement shall (i) prohibit the Stryker Advisors from conducting investigations based on the Trade Secret Information,\nprovided that no source of information under such investigation is known by Stryker or any Stryker Advisor, to the best of its knowledge, to be\nbound by any agreement with Orthovita to keep such information confidential, and otherwise is not prohibited from transmitting such information to\nStryker or any Stryker Advisor, (ii) prohibit the Stryker Advisors from advising Stryker regarding the Stryker Advisors’ opinions based on their\ninvestigations, and the general reasons for its opinions, about any matters for which the Stryker Advisors are engaged to advise Stryker, or\n(iii) require the Stryker Advisors to obtain prior review or approval from Orthovita before rendering such opinions to Stryker.\n4. The Stryker Advisors shall not disclose Trade Secret Information to any third party, including a third party consultant engaged to assist in\nthe Evaluation (a “Consultant”) unless, prior to any such disclosure, such Consultant agrees in writing to be bound by the terms of this Agreement,\nthe Stryker Advisors notify Orthovita of the identity of such Consultant and Orthovita approves in writing the disclosure of Trade Secret Information\nto such Consultant.\n5. To the extent that Stryker inadvertently receives information, whether oral or written, that it reasonably believes constitutes, contains, or\ndiscloses Trade Secret Information, Stryker shall: (i) promptly report such receipt to Orthovita; and (ii) promptly turn over all originals and copies\n(including all electronic copies in any media) of such Trade Secret Information, to the extent it is written, to Orthovita. If confirmed to be Trade\nSecret Information, Stryker agrees to maintain such Trade Secret Information in confidence so long as it remains a trade secret. If not confirmed to\nbe Trade Secret Information, Orthovita shall return all materials turned over by Stryker to the extent that the Evaluation is ongoing.\n6. Upon the request of Orthovita or its representative, and within two (2) weeks after such request (unless another time frame is agreed to in\nwriting by the Parties), the Stryker Advisors shall return all originals and copies of any Trade Secret Information (including all electronic copies in\nany media) to Orthovita and shall destroy all notes, hard copies and electronic copies, that contain or disclose Trade Secret Information, and shall\ncertify as to such destruction to Orthovita in writing.\n2\n7. Each of Stryker and the Stryker Advisors acknowledges that money damages are an inadequate remedy for breach of this Agreement\nbecause of the difficulty of ascertaining the amount of damage that may be suffered in the event that this Agreement is breached and other factors,\nincluding irreparable injury to Orthovita. Therefore, Orthovita shall be entitled to such equitable relief as may be appropriate, including an injunction\nand specific performance, in the event of any breach of the provisions of this Agreement by any other Party, in addition to all other remedies\navailable to Orthovita at law or in equity.\n8.\n(a) This Agreement and all disputes or controversies arising out of or relating to or seeking to enforce this Agreement shall be governed by,\nand construed in accordance with, the internal laws of the State of Delaware, without regard to the laws of any other jurisdiction that\nmight be applied because of the conflicts of laws principles.\n(b) TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, THE PARTIES HERETO\nHEREBY WAIVE AND COVENANT THAT THEY WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR\nOTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT TO ANY CLAIM, CAUSE OF ACTION OR\nSUIT (IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT\nMATTER HEREOF. ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 8(b)\nWITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT\nTO TRIAL BY JURY.\n9. Nothing herein shall preclude the Stryker Advisors from disclosing any Trade Secret Information, to the extent required by applicable law or\nvalid subpoena provided that, with respect to each of the foregoing and: (i) the Stryker Advisors shall notify Orthovita of the existence, terms and\ncircumstances surrounding such disclosure as far in advance as is reasonably practicable and consult with Orthovita on the advisability of taking\nsteps available under applicable law to resist or narrow the scope of any such compelled disclosure, (ii) the Stryker Advisors shall reasonably\ncooperate with Orthovita in taking any such steps to resist or narrow the scope of any such disclosure as may be requested by Orthovita, (iii) the\nStryker Advisors shall exercise their reasonable best efforts to provide such information on a confidential basis or obtain an order or other assurance\nthat confidential treatment will be accorded to such information, and (iv) the Stryker Advisors shall exercise their reasonable best efforts to permit\nOrthovita or its counsel, at Orthovita’s expense, to attend all depositions and other proceedings pertaining to such disclosure.\n10. The Parties hereby agree that this Agreement shall not be construed in any manner to be an obligation to proceed with the Proposed\nTransaction.\n11. Orthovita shall not use the disclosure of the Trade Secret Information to the Stryker Advisors to disqualify the Stryker Advisors from\nrepresenting Stryker in any matter.\n3\n12. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which taken\ntogether shall be deemed to constitute one and the same agreement.\n13. All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in\nwriting and shall be deemed to have been duly given if (i) delivered personally to the recipient, (ii) sent to the recipient by reputable express courier\nservice (charges prepaid) or mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid, or (iii) transmitted by\ntelecopy to the recipient with a confirmation copy to follow the next day to be delivered by overnight carrier. Date of service of such notice shall be\n(A) the date such notice is personally delivered, (B) three days after the date of mailing if sent by certified or registered mail, (C) the next business\nday after the date of delivery to the overnight courier if sent by overnight courier or (D) the next business day after the date of transmittal by\ntelecopy. Such notices, demands and other communications shall be sent to the addresses indicated below or to such other address or to the attention\nof such other person as the recipient Party has specified by prior written notice to the sending Party.\n(a) if to Stryker, to\nStryker Corporation\n325 Corporate Drive\nMahwah, NJ 07430\nAttention: Legal Department, Stryker Orthopaedics\nFacsimile: (201) 831-4704\nwith a copy to:\nKing & Spalding LLP\n1700 Pennsylvania Avenue, NW\nWashington, DC 20006\nAttention: Pamela F. Forrest\nFacsimile: (202) 626-3737\nand to:\nLerner, David, Littenberg, Krumholz & Mentlik LLP\n600 South Avenue West\nWestfield, NJ 07090\nAttention: Keith E. Gilman\nFacsimile: (908) 654-7866\n(b) if to Orthovita, to:\nOrthovita, Inc.\n77 Great Valley Parkway\nMalvern, PA 19355\nAttention: General Counsel\nFacsimile: (610) 640-2603\n4\n14.\n(a) No failure or delay by any Party in exercising any right, power or privilege hereunder will operate as a wavier thereof, nor will any\nsingle or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder.\n(b) This Agreement and the Existing Confidentiality Agreement (which shall remain in full force and effect) embody the entire agreement\nand understanding of the Parties with respect to the subject matter hereof and supersede all prior discussions, negotiations, agreements\nand understandings among the Parties with respect to the subject matter hereof and thereof.\n(c) This Agreement supplements but does not replace or supersede any prior agreements between the parties relating to the exchange of\nconfidential information in connection with the Possible Transaction, including the Existing Confidentiality Agreement.\n(d) This Agreement may be amended only by a writing signed by all Parties hereto.\n(e) No Party may assign this Agreement or any of its rights hereunder without the written consent of the other Parties, without the prior\nexpress written approval of the other Parties. This Agreement shall be binding and inure to the benefit of the Parties, and their respective\nsuccessors and assigns.\n15. For purposes of this Agreement, “Affiliate(s)” means, as to any person(s) or entity(ies), that directly or indirectly through on or more\nintermediaries, controls, is controlled by, or is under common control with, person(s) or entity(ies). Each Party shall cause each of its controlled\nAffiliates to comply with the terms of this Agreement as if such controlled Affiliate were a Party hereto.\n16. If any portion or provision of this Agreement shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction,\nthen the remainder of this Agreement, or the application of such portion or provision in circumstances other than those as to which it is so declared\nillegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest\nextent permitted by applicable law.\n5\nIN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above.\nSTRYKER CORPORATION\nORTHOVITA, INC.\nBy: /s/ Bryant Zanko\nBy: /s/ Antony Koblish\nName: Bryant Zanko\nName: Antony Koblish\nTitle: VP, Business Development\nTitle: President and CEO\nKING & SPALDING LLP\nLERNER DAVID LITTENBERG\nKRUMHOLZ & MENTLIK LLP\nBy: /s/ Pamela F. Forrest\nBy: /s/ Keith E. Gilman\nName: Pamela F. Forrest\nName: Keith E. Gilman\nTitle: Partner\nTitle: Partner\n6\n[ORTHOVITA, INC. LETTERHEAD]\nMay 8, 2011\nBryant Zanko\nVice President, Business Development\nStryker Corporation\n2725 Fairfield Road\nKalamazoo, MI 49002\nDear Bryant:\nReference is made to that certain letter agreement dated as of January 18, 2011 by and between Orthovita, Inc. (the “Company”) and Stryker\nCorporation (“Stryker”), as amended on February 25, 2011 (the “Agreement”). Capitalized terms used herein and not otherwise defined herein shall\nhave the meanings given to them in the Agreement.\nStryker has requested that Orthovita disclose certain trade secrets to certain of its employees (the “Stryker Trade Secret Recipients” as set forth\nbelow) as part of the evaluation of a possible negotiated transaction between the parties. By execution and delivery of this letter, Stryker agrees that\nthe Stryker Trade Secret Recipients may receive access to the trade secrets described below, which trade secrets are included within the definition of\nEvaluation Materials under the Agreement:\nInformation or materials that have, are related to or reflect processing techniques pertaining to pepsinized, soluable collagen and/or pepsinized,\nsoluable collagen in solution with thrombin.\nThe “Stryker Trade Secret Recipients” are: William Cymbaluk, Vice President of Clinical/Quality/Regulatory Affairs; Anthony Faucette, Sr.\nManager, Sterilization Sciences; Rod Parker, Sr. Clinical Sciences Manager; and Leisel Masson, Sr. Microbiologist.\nStryker further agrees that it shall inform the Stryker Trade Secret Recipients of the confidential nature of the trade secrets described herein and shall\nbe directed by Stryker, and shall have agreed or shall otherwise be bound by an obligation, to treat such information confidential in accordance with\nthe Agreement.\nExcept as specifically provided herein all other terms and conditions of the Agreement shall remain unchanged and in full force and effect.\nIf you are in agreement with the foregoing, please sign and return one copy of this letter.\nVery truly yours,\nORTHOVITA, INC.\nBy: /s/ Antony Koblish\nAntony Koblish,\nPresident and Chief Executive Officer\nAccepted and agreed to as of the date hereof:\nStryker Corporation\nBy: /s/ Bryant Zanko\nBryant Zanko\nVice President, Business Development\n2 f4c39490e63ee60b91f354c6b00a413b.pdf effective_date jurisdiction party term EX-99.(D)(3) 10 d802321dex99d3.htm EX-99.(D)(3)\nExhibit (d)(3)\nLOGO\nNONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (“Agreement”), effective as of the last date of signature below (the “Effective Date”), is made by and between Alder\nBioPharmaceuticals, Inc., a Delaware corporation (together with its subsidiaries, “Discloser”), and the entity identified below (together with its\nsubsidiaries “Recipient”).\n1. Purpose. Discloser and Recipient wish to explore a possible business opportunity of mutual interest regarding commercial partnership for\neptinezumab (the “Compound”) outside of the United States (the “Relationship”) in connection with which Discloser will disclose its Confidential\nInformation (as defined below) to the Recipient. This Agreement is intended to allow the parties to discuss and evaluate the Relationship while\nprotecting the Discloser’s Confidential Information against unauthorized use or disclosure.\n2. Definition of Confidential Information.\n2.1 Confidential Information. “Confidential Information” means all information that is disclosed by the Discloser to the Recipient in whatever\nform it may take, whether computerized, oral, written, graphic, photographic, recorded or other, which (a) is designated in writing to be confidential or\nproprietary, or (b) if given orally, is confirmed in writing as confidential or proprietary within a reasonable time (not to exceed thirty days) after the oral\ndisclosure, or (c) is treated by the Discloser as confidential or proprietary and which a reasonable person would recognize to be confidential or\nproprietary from its nature or the manner of its disclosure. Confidential information may include patents, patent applications, research, product plans,\nproducts, developments, inventions, processes, designs, drawings, engineering, formulae, markets, software (including source and object code),\nhardware configuration, computer programs, algorithms, regulatory information, medical reports, clinical data and analysis, reagents, cell lines,\nbiological materials, chemical formulas, business plans, agreements with third parties, services, customers, marketing or finances of the Discloser and\ndata and information that a third person has disclosed to the Discloser in confidence, which the Discloser is permitted to disclose to the Recipient under\nthis Agreement.\n2.2 Limitation on Confidential Information Disclosed. The parties agree that the Confidential Information initially disclosed by the Discloser\nunder this Agreement will consist substantially of empirical results and data related to the biological, pharmacological and/or clinical activities of the\nCompound and regulatory and/or commercial strategies related to the Compound. The parties further agree that the Confidential Information will\nspecifically not include; (a) any chemical structures, formula, amino acid or nucleic acid sequence for active pharmaceutical ingredients, other than the\nCompound; (b) information about IP strategies and unpublished patents, other than for the Compound; and (c) speculations regarding functionality or\nsuitability for active pharmaceutical ingredients, except for the treatment of migraine and other pain indications with the Compound. Such information\n((a) – (c) above) shall only be considered Confidential Information and thereby subject to the terms and conditions of this Agreement if the Recipient\nhas in advance specifically accepted and confirmed in writing to the Discloser its interest in receiving such information.\n2.3 Confidentiality of Discussions and Agreement. The fact that the parties have discussions regarding the Relationship and this Agreement,\nincluding its terms and conditions, shall be deemed Confidential Information of each party.\n2.4 Exceptions. For the purposes of this Agreement, “Confidential Information” of the Discloser does not include any information that the\nRecipient can prove: (a) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Recipient; (b) was\nknown to the Recipient, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (c) is disclosed to\nthe Recipient by a third person who is – to the Recipient’s reasonable knowledge - not under any obligation of confidentiality to the Discloser; or (d) is\nindependently developed by or for the Recipient without the benefit of the Confidential Information of the Discloser.\nMCDA\nPage1of5\nCONFIDENTIAL\n3. Recipient Obligations. The Recipient agrees that it shall (a) not use any of the Discloser’s Confidential Information for the Recipient’s own use or\nfor any purpose other than to carry out discussions concerning, and the undertaking of, the Relationship; (b) not disclose or permit disclosure of any of\nthe Discloser’s Confidential Information to third parties or to employees of the Recipient, other than those directors, officers, employees, consultants and\nagents who are required to have the information in order to carry out the discussions regarding the Relationship and who are bound by obligations of\nconfidentiality at least as restrictive as those set forth in this Agreement; and (c) take all reasonable measures to protect the secrecy of and avoid\ndisclosure or use of the Discloser’s Confidential Information in order to prevent it from falling into the public domain or the possession of persons other\nthan those persons authorized under this Agreement to have any such information. Such measures shall include, but not be limited to, the highest degree\nof care that the Recipient utilizes to protect its own Confidential Information of a similar nature, which shall be no less than an ordinary pharmaceutical\ncompany would use to protect its own confidential information. The Recipient further agrees to notify the Discloser in writing of any actual or suspected\nmisuse, misappropriation or unauthorized disclosure of the Discloser’s Confidential Information which may come to the Recipient’s attention.\n4. Legally Required Disclosure. The Recipient may disclose the Discloser’s Confidential Information pursuant to the order or requirement of a court of\ncompetent jurisdiction, administrative agency, or other governmental body; provided, however, that the Recipient without undue delay shall provide\nnotice of such court order or requirement to the Discloser to enable the Discloser to seek a protective order or otherwise prevent or restrict such\ndisclosure. In the event of a limited disclosure of the Discloser’s Confidential Information as set forth in this Section, the Recipient shall continue to\ntreat such information as the Discloser’s Confidential Information for all other purposes and subject to the other terms and conditions of this Agreement.\n5. Destruction of Materials. Any materials or documents that have been furnished by the Discloser to the Recipient in connection with the Relationship\nshall be promptly destroyed by the Recipient, which destruction shall be certified in writing by Recipient, as well as all copies of such documentation,\nwithin ten days after (a) the Relationship has been rejected or concluded or (b) the written request of the Discloser; except the Recipient may keep one\ncopy of any such information for legal record-keeping purposes and shall not be required to erase electronic back-up files made in the ordinary course of\nbusiness provided that such electronic back-up files are not accessed or used for any purpose.\n6. No Rights Granted. All Confidential Information of the Discloser disclosed under this Agreement shall remain the sole property of the Discloser.\nNothing in this Agreement shall be construed as granting the Recipient any rights under any patent, copyright or other intellectual property right of the\nDiscloser, nor shall this Agreement grant the Recipient any rights in or to the Discloser’s Confidential Information other than the limited right to review\nsuch Confidential Information solely for the purpose of determining whether to enter into the Relationship.\n7. Term. This Agreement will be effective for a period of one (1) year after the Effective Date unless earlier terminated by a party upon thirty (30) days’\nprior written notice to the other party. The restrictions on use and disclosure of the Discloser’s Confidential Information by the Recipient shall survive\nany expiration or termination of this Agreement and shall continue in full force and effect for a period of five (5) years thereafter. Each party’s\nobligations under this Agreement shall be binding upon such party’s heirs, successors and assigns.\nMCDA\nPage2of5\nCONFIDENTIAL\n8. Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and\nassigns of the parties, provided that the Discloser’s Confidential Information may not be assigned by the Recipient without the prior written consent of\nthe Discloser. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective\nsuccessors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this\nAgreement.\n9. Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such\nprovision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (a) such\nprovision shall be excluded from this Agreement, (b) the balance of the Agreement shall be interpreted as if such provision were so excluded and (c) the\nbalance of the Agreement shall be enforceable in accordance with its terms.\n10. Independent Contractors. Discloser and Recipient are independent contractors, and nothing contained in this Agreement shall be construed to\nconstitute Discloser and Recipient as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking.\n11. Governing Law; Jurisdiction. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall\nbe governed, construed and interpreted in accordance with the laws of the State of Washington, without giving effect to principles of conflicts of law.\nEach of the parties hereto consents to the exclusive jurisdiction and venue of the courts of King County, Washington. The prevailing party shall be\nentitled to recover the reasonable attorneys’ fees and costs incurred by the prevailing party in any action brought to enforce any right arising under this\nAgreement.\n12. Remedies. Discloser and Recipient each agree that its obligations set forth in this Agreement are necessary and reasonable in order to protect the\nDiscloser and its business. Discloser and Recipient each expressly agree that due to the unique nature of the Discloser’s Confidential Information,\nmonetary damages would be inadequate to compensate the Discloser for any breach by the Recipient of its covenants and agreements set forth in this\nAgreement. Accordingly, Discloser and Recipient each agree and acknowledge that any such violation or threatened violation shall cause irreparable\ninjury to the Discloser and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the Discloser shall be entitled to\nobtain injunctive relief (subject to all ordinary requirements for granting such injunctive relief under applicable law being met) against the threatened\nbreach of this Agreement or the continuation of any such breach by the Recipient.\n13. Standstill Provision. Commencing on the Effective Date and for three (3) years thereafter, (the “Standstill Period”), neither Company nor any of\nCompany’s affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will, directly or\nindirectly (i) acquire, offer to acquire, agree to acquire or make a proposal to acquire, by purchase or otherwise, “beneficial ownership” (as defined in\nSection 13(d) of the Exchange Act) of any equity securities or assets, or rights or options to acquire any such securities or assets (through purchase,\nexchange, conversion or otherwise), of Discloser, including derivative securities representing the right to vote or economic benefits of any such\nsecurities; (ii) make, effect or commence any tender or exchange offer, merger or other business combination involving Discloser; (iii) consummate or\ncommence any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Discloser; (iv) make, or in any\nway participate in, any “solicitation” of proxies to vote or consent, or seek to advise or influence any person with respect to the voting of, any voting\nsecurities of Discloser or be or become a “participant” in any “election contest” with respect to Discloser (all within the meaning of Section 14 of the\nExchange Act); (v) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to, or\notherwise act in concert with any person in respect of, any voting equity securities of Discloser; (vi) otherwise act, alone or in concert with others, to\nseek representation on or to control or\nMCDA\nPage3of5\nCONFIDENTIAL\ninfluence the management, board of directors or policies of Discloser or any subsidiary; (vii) negotiate with or provide any information to any person\n(other than the Recipient’s Representatives in accordance with this Agreement) with respect to, or make any statement or proposal to any person (other\nthan the Recipient’s Representatives in accordance with this Agreement) with respect to, or make any public announcement or proposal or offer\nwhatsoever with respect to, or act as a financing source for or otherwise invest in any other persons in connection with, or otherwise solicit, seek or offer\nto effect any transactions or actions described in the foregoing clauses (i) through (vi), or make any other proposal or statement inconsistent with the\nterms of this Agreement or that otherwise could reasonably be expected to result in a public announcement regarding any such transactions or actions; or\n(viii) advise, assist, induce, or encourage any other persons in connection with any of the foregoing; unless and until, in the case of each of the foregoing\nclauses (i) through (viii), the Recipient has received the prior written invitation or approval of Discloser’s board of directors to do so. The Recipient also\nagrees that during the Standstill Period it will not request that Discloser or any of its Representatives amend or waive any provision of this Section 14\n(including this sentence). The Recipient hereby confirms that, as of the date hereof and except as disclosed to Discloser in writing prior to the date\nhereof, the Recipient does not have, directly or indirectly, beneficial ownership of equity securities, or rights or options to own or acquire any such\nsecurities (through purchase, exchange, conversion or otherwise), of Discloser. The expiration of the Standstill Period will not terminate or otherwise\naffect any of the other provisions of this Agreement. As used in this Section 14, “Representatives” means (x) subsidiaries and other affiliates,\n(y) Recipient’s directors, officers, employees, agents, representatives, accountants, attorneys and advisors, and (z) the directors, officers, employees,\npartners, agents, representatives, accountants, attorneys and advisors of Recipient’s subsidiaries and other affiliates.\n14. Amendment and Waiver. Any term of this Agreement may be amended with the written consent of Discloser and Recipient. Any amendment or\nwaiver effected in accordance with this Section shall be binding upon the parties and their respective successors and assigns. Failure to enforce any\nprovision of this Agreement by a party shall not constitute a waiver of any term hereof by such party.\n15. Entire Agreement. This Agreement is the product of both of the parties hereto, and constitutes the entire agreement between such parties pertaining\nto the subject matter hereof, and merges all prior negotiations and drafts of the parties with regard to the transactions contemplated herein. All other\nwritten or oral agreements existing between the parties hereto regarding such transactions are expressly canceled.\n16. Personal data. The parties may, as part of their contractual relationship and to perform their respective obligations under the Agreement, share\npersonal data about certain employees engaged by the parties, as applicable, who are working to fulfil the Agreement (hereinafter “Employees”).\nWithout otherwise limiting the parties’ rights and obligations related to personal data set out in this Agreement, each party acknowledges and agrees that\nit will, on behalf of the other party, provide its own Employees with information about the other party’s collection and processing of the employees’\npersonal data. Such information must comply with applicable data protection laws, including – to the extent applicable – Article 13 and 14 of Regulation\n(EU) 2016/679 of 27 April 2016 (the General Data Protection Regulation).\n17. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together\nshall constitute one instrument. Any signature page delivered by facsimile or electronic image transmission shall be binding to the same extent as an\noriginal signature page.\n[Signature page follows]\nMCDA\nPage4of5\nCONFIDENTIAL\nThe parties have executed this Agreement by their respective duly authorized representatives as of the dates set forth below.\nAlder BioPharmaceuticals, Inc.\nH. Lundbeck A/S\nBy:\n/s/ James B. Bucher, J.D .\nBy:\n/s/ Thomas B Riisager\nName:\nJames B. Bucher, J.D .\nName:\nThomas B Riisager\nTitle:\nSenior Vice President & General Counsel\nTitle:\nVP Corporate Business Development\nAddress: 11804 North Creek Parkway South\nAddress: Ottiliavej 9\nBothell, WA 98011\n2500 Valby\nU.S.A .\nDenmark\nMCDA\nPage5of5\nCONFIDENTIAL EX-99.(D)(3) 10 d802321dex99d3.htm EX-99.(D)(3)\nExhibit (d)(3)\nl#.LOGO\nNONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (“Agreement”), effective as of the last date of signature below (the “Effective Date”), is made by and between Alder\nBioPharmaceuticals, Inc., a Delaware corporation (together with its subsidiaries, “Discloser”), and the entity identified below (together with its\nsubsidiaries “Recipient”).\n1. Purpose. Discloser and Recipient wish to explore a possible business opportunity of mutual interest regarding commercial partnership for\neptinezumab (the “Compound”) outside of the United States (the “Relationship™) in connection with which Discloser will disclose its Confidential\nInformation (as defined below) to the Recipient. This Agreement is intended to allow the parties to discuss and evaluate the Relationship while\nprotecting the Discloser’s Confidential Information against unauthorized use or disclosure.\n2. Definition of Confidential Information.\n2.1 Confidential Information. “Confidential Information” means all information that is disclosed by the Discloser to the Recipient in whatever\nform it may take, whether computerized, oral, written, graphic, photographic, recorded or other, which (a) is designated in writing to be confidential or\nproprietary, or (b) if given orally, is confirmed in writing as confidential or proprietary within a reasonable time (not to exceed thirty days) after the oral\ndisclosure, or (c) is treated by the Discloser as confidential or proprietary and which a reasonable person would recognize to be confidential or\nproprietary from its nature or the manner of its disclosure. Confidential information may include patents, patent applications, research, product plans,\nproducts, developments, inventions, processes, designs, drawings, engineering, formulae, markets, software (including source and object code),\nhardware configuration, computer programs, algorithms, regulatory information, medical reports, clinical data and analysis, reagents, cell lines,\nbiological materials, chemical formulas, business plans, agreements with third parties, services, customers, marketing or finances of the Discloser and\ndata and information that a third person has disclosed to the Discloser in confidence, which the Discloser is permitted to disclose to the Recipient under\nthis Agreement.\n2.2 Limitation on Confidential Information Disclosed. The parties agree that the Confidential Information initially disclosed by the Discloser\nunder this Agreement will consist substantially of empirical results and data related to the biological, pharmacological and/or clinical activities of the\nCompound and regulatory and/or commercial strategies related to the Compound. The parties further agree that the Confidential Information will\nspecifically not include; (a) any chemical structures, formula, amino acid or nucleic acid sequence for active pharmaceutical ingredients, other than the\nCompound; (b) information about IP strategies and unpublished patents, other than for the Compound; and (c) speculations regarding functionality or\nsuitability for active pharmaceutical ingredients, except for the treatment of migraine and other pain indications with the Compound. Such information\n((@) — (c) above) shall only be considered Confidential Information and thereby subject to the terms and conditions of this Agreement if the Recipient\nhas in advance specifically accepted and confirmed in writing to the Discloser its interest in receiving such information.\n2.3 Confidentiality of Discussions and Agreement. The fact that the parties have discussions regarding the Relationship and this Agreement,\nincluding its terms and conditions, shall be deemed Confidential Information of each party.\n \n2.4 Exceptions. For the purposes of this Agreement, “Confidential Information” of the Discloser does not include any information that the\nRecipient can prove: (a) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Recipient; (b) was\nknown to the Recipient, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (c) is disclosed to\nthe Recipient by a third person who is — to the Recipient’s reasonable knowledge - not under any obligation of confidentiality to the Discloser; or (d) is\nindependently developed by or for the Recipient without the benefit of the Confidential Information of the Discloser.\nMCDA Page 1 of 5 CONFIDENTIAL\n3. Recipient Obligations. The Recipient agrees that it shall (a) not use any of the Discloser’s Confidential Information for the Recipient’s own use or\nfor any purpose other than to carry out discussions concerning, and the undertaking of, the Relationship; (b) not disclose or permit disclosure of any of\nthe Discloser’s Confidential Information to third parties or to employees of the Recipient, other than those directors, officers, employees, consultants and\nagents who are required to have the information in order to carry out the discussions regarding the Relationship and who are bound by obligations of\nconfidentiality at least as restrictive as those set forth in this Agreement; and (c) take all reasonable measures to protect the secrecy of and avoid\ndisclosure or use of the Discloser’s Confidential Information in order to prevent it from falling into the public domain or the possession of persons other\nthan those persons authorized under this Agreement to have any such information. Such measures shall include, but not be limited to, the highest degree\nof care that the Recipient utilizes to protect its own Confidential Information of a similar nature, which shall be no less than an ordinary pharmaceutical\ncompany would use to protect its own confidential information. The Recipient further agrees to notify the Discloser in writing of any actual or suspected\nmisuse, misappropriation or unauthorized disclosure of the Discloser’s Confidential Information which may come to the Recipient’s attention.\n \n4. Legally Required Disclosure. The Recipient may disclose the Discloser’s Confidential Information pursuant to the order or requirement of a court of\ncompetent jurisdiction, administrative agency, or other governmental body; provided, however, that the Recipient without undue delay shall provide\nnotice of such court order or requirement to the Discloser to enable the Discloser to seek a protective order or otherwise prevent or restrict such\ndisclosure. In the event of a limited disclosure of the Discloser’s Confidential Information as set forth in this Section, the Recipient shall continue to\ntreat such information as the Discloser’s Confidential Information for all other purposes and subject to the other terms and conditions of this Agreement.\n5. Destruction of Materials. Any materials or documents that have been furnished by the Discloser to the Recipient in connection with the Relationship\nshall be promptly destroyed by the Recipient, which destruction shall be certified in writing by Recipient, as well as all copies of such documentation,\nwithin ten days after (a) the Relationship has been rejected or concluded or (b) the written request of the Discloser; except the Recipient may keep one\ncopy of any such information for legal record-keeping purposes and shall not be required to erase electronic back-up files made in the ordinary course of\nbusiness provided that such electronic back-up files are not accessed or used for any purpose.\n6. No Rights Granted. All Confidential Information of the Discloser disclosed under this Agreement shall remain the sole property of the Discloser.\nNothing in this Agreement shall be construed as granting the Recipient any rights under any patent, copyright or other intellectual property right of the\nDiscloser, nor shall this Agreement grant the Recipient any rights in or to the Discloser’s Confidential Information other than the limited right to review\nsuch Confidential Information solely for the purpose of determining whether to enter into the Relationship.\n7. Term. This Agreement will be effective for a period of one (1) year after the Effective Date unless earlier terminated by a party upon thirty (30) days’\nprior written notice to the other party. The restrictions on use and disclosure of the Discloser’s Confidential Information by the Recipient shall survive\nany expiration or termination of this Agreement and shall continue in full force and effect for a period of five (5) years thereafter. Each party’s\nobligations under this Agreement shall be binding upon such party’s heirs, successors and assigns.\nMCDA Page 2 of 5 CONFIDENTIAL\n8. Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and\nassigns of the parties, provided that the Discloser’s Confidential Information may not be assigned by the Recipient without the prior written consent of\nthe Discloser. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective\nsuccessors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this\nAgreement.\n9. Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such\nprovision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (a) such\nprovision shall be excluded from this Agreement, (b) the balance of the Agreement shall be interpreted as if such provision were so excluded and (c) the\nbalance of the Agreement shall be enforceable in accordance with its terms.\n10. Independent Contractors. Discloser and Recipient are independent contractors, and nothing contained in this Agreement shall be construed to\nconstitute Discloser and Recipient as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking.\n11. Governing L.aw; Jurisdiction. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall\nbe governed, construed and interpreted in accordance with the laws of the State of Washington, without giving effect to principles of conflicts of law.\nEach of the parties hereto consents to the exclusive jurisdiction and venue of the courts of King County, Washington. The prevailing party shall be\nentitled to recover the reasonable attorneys’ fees and costs incurred by the prevailing party in any action brought to enforce any right arising under this\nAgreement.\n12. Remedies. Discloser and Recipient each agree that its obligations set forth in this Agreement are necessary and reasonable in order to protect the\nDiscloser and its business. Discloser and Recipient each expressly agree that due to the unique nature of the Discloser’s Confidential Information,\nmonetary damages would be inadequate to compensate the Discloser for any breach by the Recipient of its covenants and agreements set forth in this\nAgreement. Accordingly, Discloser and Recipient each agree and acknowledge that any such violation or threatened violation shall cause irreparable\ninjury to the Discloser and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the Discloser shall be entitled to\nobtain injunctive relief (subject to all ordinary requirements for granting such injunctive relief under applicable law being met) against the threatened\nbreach of this Agreement or the continuation of any such breach by the Recipient.\n13. Standstill Provision. Commencing on the Effective Date and for three (3) years thereafter, (the “Standstill Period”), neither Company nor any of\nCompany’s affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will, directly or\nindirectly (i) acquire, offer to acquire, agree to acquire or make a proposal to acquire, by purchase or otherwise, “beneficial ownership” (as defined in\nSection 13(d) of the Exchange Act) of any equity securities or assets, or rights or options to acquire any such securities or assets (through purchase,\nexchange, conversion or otherwise), of Discloser, including derivative securities representing the right to vote or economic benefits of any such\nsecurities; (ii) make, effect or commence any tender or exchange offer, merger or other business combination involving Discloser; (iii) consummate or\ncommence any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Discloser; (iv) make, or in any\nway participate in, any “solicitation” of proxies to vote or consent, or seek to advise or influence any person with respect to the voting of, any voting\nsecurities of Discloser or be or become a “participant” in any “election contest” with respect to Discloser (all within the meaning of Section 14 of the\nExchange Act); (v) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to, or\notherwise act in concert with any person in respect of, any voting equity securities of Discloser; (vi) otherwise act, alone or in concert with others, to\nseek representation on or to control or\nMCDA Page 3 of 5 CONFIDENTIAL\ninfluence the management, board of directors or policies of Discloser or any subsidiary; (vii) negotiate with or provide any information to any person\n(other than the Recipient’s Representatives in accordance with this Agreement) with respect to, or make any statement or proposal to any person (other\nthan the Recipient’s Representatives in accordance with this Agreement) with respect to, or make any public announcement or proposal or offer\nwhatsoever with respect to, or act as a financing source for or otherwise invest in any other persons in connection with, or otherwise solicit, seek or offer\nto effect any transactions or actions described in the foregoing clauses (i) through (vi), or make any other proposal or statement inconsistent with the\nterms of this Agreement or that otherwise could reasonably be expected to result in a public announcement regarding any such transactions or actions; or\n(viii) advise, assist, induce, or encourage any other persons in connection with any of the foregoing; unless and until, in the case of each of the foregoing\nclauses (i) through (viii), the Recipient has received the prior written invitation or approval of Discloser’s board of directors to do so. The Recipient also\nagrees that during the Standstill Period it will not request that Discloser or any of its Representatives amend or waive any provision of this Section 14\n(including this sentence). The Recipient hereby confirms that, as of the date hereof and except as disclosed to Discloser in writing prior to the date\nhereof, the Recipient does not have, directly or indirectly, beneficial ownership of equity securities, or rights or options to own or acquire any such\nsecurities (through purchase, exchange, conversion or otherwise), of Discloser. The expiration of the Standstill Period will not terminate or otherwise\naffect any of the other provisions of this Agreement. As used in this Section 14, “Representatives” means (x) subsidiaries and other affiliates,\n(v) Recipient’s directors, officers, employees, agents, representatives, accountants, attorneys and advisors, and (z) the directors, officers, employees,\npartners, agents, representatives, accountants, attorneys and advisors of Recipient’s subsidiaries and other affiliates.\n14. Amendment and Waiver. Any term of this Agreement may be amended with the written consent of Discloser and Recipient. Any amendment or\nwaiver effected in accordance with this Section shall be binding upon the parties and their respective successors and assigns. Failure to enforce any\nprovision of this Agreement by a party shall not constitute a waiver of any term hereof by such party.\n15. Entire Agreement. This Agreement is the product of both of the parties hereto, and constitutes the entire agreement between such parties pertaining\nto the subject matter hereof, and merges all prior negotiations and drafts of the parties with regard to the transactions contemplated herein. All other\nwritten or oral agreements existing between the parties hereto regarding such transactions are expressly canceled.\n16. Personal data. The parties may, as part of their contractual relationship and to perform their respective obligations under the Agreement, share\npersonal data about certain employees engaged by the parties, as applicable, who are working to fulfil the Agreement (hereinafter “Employees”).\nWithout otherwise limiting the parties’ rights and obligations related to personal data set out in this Agreement, each party acknowledges and agrees that\nit will, on behalf of the other party, provide its own Employees with information about the other party’s collection and processing of the employees’\npersonal data. Such information must comply with applicable data protection laws, including — to the extent applicable — Article 13 and 14 of Regulation\n(EU) 2016/679 of 27 April 2016 (the General Data Protection Regulation).\n17. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together\nshall constitute one instrument. Any signature page delivered by facsimile or electronic image transmission shall be binding to the same extent as an\noriginal signature page.\n[Signature page follows]\nMCDA Page 4 of 5 CONFIDENTIAL\nThe parties have executed this Agreement by their respective duly authorized representatives as of the dates set forth below. Alder BioPharmaceuticals, Inc.\nBy: /s/ James B. Bucher, J.D.\nName: James B. Bucher, J.D.\nTitle: Senior Vice President & General Counsel\nAddress: 11804 North Creek Parkway South\nBothell, WA 98011\nU.S.A.\nMCDA Page 5 of 5\nH. Lundbeck A/S By:\nName:\nTitle:\nAddress:\n/s/ Thomas B Riisager\nThomas B Riisager\nVP Corporate Business Development\nOttiliavej 9\n2500 Valby\nDenmark\nCONFIDENTIAL EX-99.(D)(3) 10 d802321dex99d3.htm EX-99.(D)(3)\nExhibit (d)(3)\nPLOGO\nNONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement ("Agreement"), effective as of the last date of signature below (the "Effective Date"), is made by and between Alder\nioPharmaceuticals, Inc., a Delaware corporation (together with its subsidiaries, "Discloser"), and the entity identified below (together with its\nsubsidiaries "Recipient").\n1. Purpose. Discloser and Recipient wish to explore a possible business opportunity of mutual interest regarding commercial partnership for\neptinezumab (the "Compound") outside of the United States (the "Relationship") in connection with which Discloser will disclose its Confidential\nInformation (as defined below) to the Recipient. This Agreement is intended to allow the parties to discuss and evaluate the Relationship while\nprotecting the Discloser's Confidential Information against unauthorized use or disclosure.\n2. Definition of Confidential Information.\n2.1 Confidential Information. "Confidential Information" means all information that is disclosed by the Discloser to the Recipient in whatever\nform it may take, whether computerized, oral, written, graphic, photographic, recorded or other, which (a) is designated in writing to be confidential or\nproprietary, or (b) if given orally, is confirmed in writing as confidential or proprietary within a reasonable time (not to exceed thirty days) after the oral\ndisclosure, or (c) is treated by the Discloser as confidential or proprietary and which a reasonable person would recognize to be confidential or\nproprietary from its nature or the manner of its disclosure. Confidential information may include patents, patent applications, research, product plans,\nproducts, developments, inventions, processes, designs, drawings, engineering, formulae, markets, software (including source and object code),\nhardware configuration, computer programs, algorithms, regulatory information, medical reports, clinical data and analysis, reagents, cell lines,\nbiological materials, chemical formulas, business plans, agreements with third parties, services, customers, marketing or finances of the Discloser and\ndata and information that a third person has disclosed to the Discloser in confidence, which the Discloser is permitted to disclose to the Recipient under\nthis Agreement.\n2.2 Limitation on Confidential Information Disclosed. The parties agree that the Confidential Information initially disclosed by the Discloser\nunder this Agreement will consist substantially of empirical results and data related to the biological, pharmacological and/or clinical activities of the\nCompound and regulatory and/or commercial strategies related to the Compound. The parties further agree that the Confidential Information will\nspecifically not include; (a) any chemical structures, formula, amino acid or nucleic acid sequence for active pharmaceutical ingredients, other than the\nCompound; (b) information about IP strategies and unpublished patents, other than for the Compound; and (c) speculations regarding functionality or\nsuitability for active pharmaceutical ingredients, except for the treatment of migraine and other pain indications with the Compound. Such information\n((a) (c) above) shall only be considered Confidential Information and thereby subject to the terms and conditions of this Agreement if the Recipient\nhas in advance specifically accepted and confirmed in writing to the Discloser its interest in receiving such information.\n2.3 Confidentiality. of Discussions and Agreement. The fact that the parties have discussions regarding the Relationship and this Agreement,\nincluding its terms and conditions, shall be deemed Confidential Information of each party.\n2.4 Exceptions. For the purposes of this Agreement, "Confidential Information" of the Discloser does not include any information that the\nRecipient can prove: (a) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Recipient; (b) was\nknown to the Recipient, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (c) is disclosed to\nthe Recipient by a third person who is to the Recipient's reasonable knowledge not under any obligation of confidentiality to the Discloser; or (d) is\nindependently developed by or for the Recipient without the benefit of the Confidential Information of the Discloser.\nMCDA\nPage 1 of 5\nCONFIDENTIAL\n3. Recipient Obligations. The Recipient agrees that it shall (a) not use any of the Discloser's Confidential Information for the Recipient's own use\nor\nfor any purpose other than to carry out discussions concerning, and the undertaking of, the Relationship; (b) not disclose or permit disclosure of any of\nthe\nDiscloser's\nConfidential\nInformation\nto\nthird\nparties\nor\nto\nemployees\nof\nthe\nRecipient,\nother\nthan\nthose\ndirectors,\nofficers,\nemployees,\nconsultants\nand\nagents who are required to have the information in order to carry out the discussions regarding the Relationship and who are bound by obligations of\nconfidentiality at least as restrictive as those set forth in this Agreement; and (c) take all reasonable measures to protect the secrecy of and avoid\ndisclosure\nor\nuse\nof\nthe\nDiscloser's\nConfidential\nInformation\nin\norder\nto\nprevent\nit\nfrom\nfalling\ninto\nthe\npublic\ndomain\nor\nthe\npossession\nof\npersons\nother\nthan those persons authorized under this Agreement to have any such information. Such measures shall include, but not be limited to, the highest degree\nof care that the Recipient utilizes to protect its own Confidential Information of a similar nature, which shall be no less than an ordinary pharmaceutica\ncompany would use to protect its own confidential information. The Recipient further agrees to notify the Discloser in writing of any actual or suspected\nmisuse, misappropriation or unauthorized disclosure of the Discloser's Confidential Information which may come to the Recipient's attention.\n4. Legally Required Disclosure. The Recipient may disclose the Discloser's Confidential Information pursuant to the order or requirement of a court\nof\ncompetent jurisdiction, administrative agency, or other governmental body; provided, however, that the Recipient without undue delay shall provide\nnotice of such court order or requirement to the Discloser to enable the Discloser to seek a protective order or otherwise prevent or restrict such\ndisclosure. In the event of a limited disclosure of the Discloser's Confidential Information as set forth in this Section, the Recipient shall continue to\ntreat such information as the Discloser's Confidential Information for all other purposes and subject to the other terms and conditions of this Agreement\n5. Destruction of Materials. Any materials or documents that have been furnished by the Discloser to the Recipient in connection with the Relationship\nshall be promptly destroyed by the Recipient, which destruction shall be certified in writing by Recipient, as well as all copies of such documentation,\nwithin ten days after (a) the Relationship has been rejected or concluded or (b) the written request of the Discloser; except the Recipient may keep one\ncopy of any such information for legal record-keeping purposes and shall not be required to erase electronic back-up files made in the ordinary course of\nbusiness provided that such electronic back-up files are not accessed or used for any purpose.\n6.\nNo\nRights Granted. All Confidential Information of the Discloser disclosed under this Agreement shall remain the sole property of the Discloser.\nNothing in this Agreement shall be construed as granting the Recipient any rights under any patent, copyright or other intellectual property right of the\nDiscloser, nor shall this Agreement grant the Recipient any rights in or to the Discloser's Confidential Information other than the limited right to review\nsuch Confidential Information solely for the purpose of determining whether to enter into the Relationship.\n7. Term. This Agreement will be effective for a period of one (1) year after the Effective Date unless earlier terminated by a party upon thirty (30) days'\nprior written notice to the other party. The restrictions on use and disclosure of the Discloser's Confidential Information by the Recipient shall survive\nany expiration or termination of this Agreement and shall continue in full force and effect for a period of five (5) years thereafter. Each party's\nobligations under this Agreement shall be binding upon such party's heirs, successors and assigns.\nMCDA\nPage 2 of 5\nCONFIDENTIAL\n8.\nSuccessors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and\nassigns of the parties, provided that the Discloser's Confidential Information may not be assigned by the Recipient without the prior written consent\nof\nthe\nDiscloser.\nNothing\nin\nthis\nAgreement,\nexpress\nor\nimplied,\nis\nintended\nto\nconfer\nupon\nany\nparty\nother\nthan\nthe\nparties\nhereto\nor\ntheir\nrespective\nsuccessors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this\nAgreement.\n9. Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate\nsuch\nprovision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (a) such\nprovision shall be excluded from this Agreement, (b) the balance of the Agreement shall be interpreted as if such provision were so excluded and (c) the\nbalance of the Agreement shall be enforceable in accordance with its terms.\n10. Independent Contractors. Discloser and Recipient are independent contractors, and nothing contained in this Agreement shall be construed\nto\nconstitute Discloser and Recipient as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking.\n11. Governing Law; Jurisdiction. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall\nbe governed, construed and interpreted in accordance with the laws of the State of Washington, without giving effect to principles of conflicts of law.\nEach of the parties hereto consents to the exclusive jurisdiction and venue of the courts of King County, Washington. The prevailing party shall be\nentitled to recover the reasonable attorneys' fees and costs incurred by the prevailing party in any action brought to enforce any right arising under this\nAgreement.\n12. Remedies. Discloser and Recipient each agree that its obligations set forth in this Agreement are necessary and reasonable in order to protect the\nDiscloser and its business. Discloser and Recipient each expressly agree that due to the unique nature of the Discloser's Confidential Information,\nmonetary\ndamages\nwould\nbe\ninadequate\nto\ncompensate\nthe\nDiscloser\nfor\nany\nbreach\nby\nthe\nRecipient\nof\nits\ncovenants\nand\nagreements\nset\nforth\nin\nthis\nAgreement. Accordingly, Discloser and Recipient each agree and acknowledge that any such violation or threatened violation shall cause irreparable\ninjury to the Discloser and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the Discloser shall be entitled\nto\nobtain injunctive relief (subject to all ordinary requirements for granting such injunctive relief under applicable law being met) against the threatened\nbreach of this Agreement or the continuation of any such breach by the Recipient.\n13. Standstill Provision. Commencing on the Effective Date and for three (3) years thereafter, (the "Standstill Period"), neither Company nor any of\nCompany's affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) will, directly or\nindirectly (i) acquire, offer to acquire, agree to acquire or make a proposal to acquire, by purchase or otherwise, "beneficial ownership" (as defined in\nSection 13(d) of the Exchange Act) of any equity securities or assets, or rights or options to acquire any such securities or assets (through purchase,\nexchange, conversion or otherwise), of Discloser, including derivative securities representing the right to vote or economic benefits of any such\nsecurities; (ii) make, effect or commence any tender or exchange offer, merger or other business combination involving Discloser; (iii) consummate or\ncommence any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Discloser; (iv) make, or in any\nway participate in, any "solicitation" of proxies to vote or consent, or seek to advise or influence any person with respect to the voting of, any voting\nsecurities of Discloser or be or become a "participant" in any "election contest" with respect to Discloser (all within the meaning of Section 14 of\nthe\nExchange Act); (v) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to,\nor\notherwise act in concert with any person in respect of, any voting equity securities of Discloser; (vi) otherwise act, alone or in concert with others, to\nseek representation on or to control or\nMCDA\nPage 3 of 5\nCONFIDENTIAL\ninfluence the management, board of directors or policies of Discloser or any subsidiary; (vii) negotiate with or provide any information to any person\n(other than the Recipient's Representatives in accordance with this Agreement) with respect to, or make any statement or proposal to any person (other\nthan the Recipient's Representatives in accordance with this Agreement) with respect to, or make any public announcement or proposal or offer\nwhatsoever with respect to, or act as a financing source for or otherwise invest in any other persons in connection with, or otherwise solicit, seek or offer\nto effect any transactions or actions described in the foregoing clauses (i) through (vi), or make any other proposal or statement inconsistent with\nthe\nterms of this Agreement or that otherwise could reasonably be expected to result in a public announcement regarding any such transactions or actions;\nor\n(viii) advise, assist, induce, or encourage any other persons in connection with any of the foregoing; unless and until, in the case of each of the foregoing\nclauses (i) through (viii), the Recipient has received the prior written invitation or approval of Discloser's board of directors to do so. The Recipient also\nagrees that during the Standstill Period it will not request that Discloser or any of its Representatives amend or waive any provision of this Section 14\n(including this sentence). The Recipient hereby confirms that, as of the date hereof and except as disclosed to Discloser in writing prior to the date\nhereof, the Recipient does not have, directly or indirectly, beneficial ownership of equity securities, or rights or options to own or acquire any such\nsecurities (through purchase, exchange, conversion or otherwise), of Discloser. The expiration of the Standstill Period will not terminate or otherwise\naffect any of the other provisions of this Agreement. As used in this Section 14, "Representatives" means (x) subsidiaries and other affiliates,\n(y) Recipient's directors, officers, employees, agents, representatives, accountants, attorneys and advisors, and (z) the directors, officers, employees,\npartners, agents, representatives, accountants, attorneys and advisors of Recipient's subsidiaries and other affiliates.\n14. Amendment and Waiver. Any term of this Agreement may be amended with the written consent of Discloser and Recipient. Any amendment or\nwaiver effected in accordance with this Section shall be binding upon the parties and their respective successors and assigns. Failure to enforce any\nprovision of this Agreement by a party shall not constitute a waiver of any term hereof by such party.\n15. Entire Agreement. This Agreement is the product of both of the parties hereto, and constitutes the entire agreement between such parties pertaining\nto the subject matter hereof, and merges all prior negotiations and drafts of the parties with regard to the transactions contemplated herein. All other\nwritten or oral agreements existing between the parties hereto regarding such transactions are expressly canceled.\n16. Personal data. The parties may, as part of their contractual relationship and to perform their respective obligations under the Agreement, share\npersonal data about certain employees engaged by the parties, as applicable, who are working to fulfil the Agreement (hereinafter "Employees").\nWithout otherwise limiting the parties' rights and obligations related to personal data set out in this Agreement, each party acknowledges and agrees that\nit will, on behalf of the other party, provide its own Employees with information about the other party's collection and processing of the employees'\npersonal data. Such information must comply with applicable data protection laws, including - to the extent applicable - Article 13 and 14 of Regulation\n(EU) 2016/679 of 27 April 2016 (the General Data Protection Regulation).\n17. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together\nshall constitute one instrument. Any signature page delivered by facsimile or electronic image transmission shall be binding to the same extent as\nan\noriginal signature page.\n[Signature page follows]\nMCDA\nPage 4 of 5\nCONFIDENTIAL\nThe parties have executed this Agreement by their respective duly authorized representatives as of the dates set forth below.\nAlder BioPharmaceuticals, Inc.\nH. Lundbeck A/S\nBy:\n/s/ James B. Bucher, J.D.\nBy:\n/s/ Thomas B Riisager\nName:\nJames B. Bucher, J.D.\nName:\nThomas B Riisager\nTitle:\nSenior Vice President & General Counsel\nTitle:\nVP Corporate Business Development\nAddress: 11804 North Creek Parkway South\nAddress: Ottiliavej 9\nBothell, WA 98011\n2500 Valby\nU.S.A.\nDenmark\nMCDA\nPage 5 of 5\nCONFIDENTIAL EX-99.(D)(3) 10 d802321dex99d3.htm EX-99.(D)(3)\nExhibit (d)(3)\nLOGO\nNONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (“Agreement”), effective as of the last date of signature below (the “Effective Date”), is made by and between Alder\nBioPharmaceuticals, Inc., a Delaware corporation (together with its subsidiaries, “Discloser”), and the entity identified below (together with its\nsubsidiaries “Recipient”).\n1. Purpose. Discloser and Recipient wish to explore a possible business opportunity of mutual interest regarding commercial partnership for\neptinezumab (the “Compound”) outside of the United States (the “Relationship”) in connection with which Discloser will disclose its Confidential\nInformation (as defined below) to the Recipient. This Agreement is intended to allow the parties to discuss and evaluate the Relationship while\nprotecting the Discloser’s Confidential Information against unauthorized use or disclosure.\n2. Definition of Confidential Information.\n2.1 Confidential Information. “Confidential Information” means all information that is disclosed by the Discloser to the Recipient in whatever\nform it may take, whether computerized, oral, written, graphic, photographic, recorded or other, which (a) is designated in writing to be confidential or\nproprietary, or (b) if given orally, is confirmed in writing as confidential or proprietary within a reasonable time (not to exceed thirty days) after the oral\ndisclosure, or (c) is treated by the Discloser as confidential or proprietary and which a reasonable person would recognize to be confidential or\nproprietary from its nature or the manner of its disclosure. Confidential information may include patents, patent applications, research, product plans,\nproducts, developments, inventions, processes, designs, drawings, engineering, formulae, markets, software (including source and object code),\nhardware configuration, computer programs, algorithms, regulatory information, medical reports, clinical data and analysis, reagents, cell lines,\nbiological materials, chemical formulas, business plans, agreements with third parties, services, customers, marketing or finances of the Discloser and\ndata and information that a third person has disclosed to the Discloser in confidence, which the Discloser is permitted to disclose to the Recipient under\nthis Agreement.\n2.2 Limitation on Confidential Information Disclosed. The parties agree that the Confidential Information initially disclosed by the Discloser\nunder this Agreement will consist substantially of empirical results and data related to the biological, pharmacological and/or clinical activities of the\nCompound and regulatory and/or commercial strategies related to the Compound. The parties further agree that the Confidential Information will\nspecifically not include; (a) any chemical structures, formula, amino acid or nucleic acid sequence for active pharmaceutical ingredients, other than the\nCompound; (b) information about IP strategies and unpublished patents, other than for the Compound; and (c) speculations regarding functionality or\nsuitability for active pharmaceutical ingredients, except for the treatment of migraine and other pain indications with the Compound. Such information\n((a) – (c) above) shall only be considered Confidential Information and thereby subject to the terms and conditions of this Agreement if the Recipient\nhas in advance specifically accepted and confirmed in writing to the Discloser its interest in receiving such information.\n2.3 Confidentiality of Discussions and Agreement. The fact that the parties have discussions regarding the Relationship and this Agreement,\nincluding its terms and conditions, shall be deemed Confidential Information of each party.\n2.4 Exceptions. For the purposes of this Agreement, “Confidential Information” of the Discloser does not include any information that the\nRecipient can prove: (a) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Recipient; (b) was\nknown to the Recipient, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (c) is disclosed to\nthe Recipient by a third person who is – to the Recipient’s reasonable knowledge - not under any obligation of confidentiality to the Discloser; or (d) is\nindependently developed by or for the Recipient without the benefit of the Confidential Information of the Discloser.\nMCDA\nPage1of5\nCONFIDENTIAL\n3. Recipient Obligations. The Recipient agrees that it shall (a) not use any of the Discloser’s Confidential Information for the Recipient’s own use or\nfor any purpose other than to carry out discussions concerning, and the undertaking of, the Relationship; (b) not disclose or permit disclosure of any of\nthe Discloser’s Confidential Information to third parties or to employees of the Recipient, other than those directors, officers, employees, consultants and\nagents who are required to have the information in order to carry out the discussions regarding the Relationship and who are bound by obligations of\nconfidentiality at least as restrictive as those set forth in this Agreement; and (c) take all reasonable measures to protect the secrecy of and avoid\ndisclosure or use of the Discloser’s Confidential Information in order to prevent it from falling into the public domain or the possession of persons other\nthan those persons authorized under this Agreement to have any such information. Such measures shall include, but not be limited to, the highest degree\nof care that the Recipient utilizes to protect its own Confidential Information of a similar nature, which shall be no less than an ordinary pharmaceutical\ncompany would use to protect its own confidential information. The Recipient further agrees to notify the Discloser in writing of any actual or suspected\nmisuse, misappropriation or unauthorized disclosure of the Discloser’s Confidential Information which may come to the Recipient’s attention.\n4. Legally Required Disclosure. The Recipient may disclose the Discloser’s Confidential Information pursuant to the order or requirement of a court of\ncompetent jurisdiction, administrative agency, or other governmental body; provided, however, that the Recipient without undue delay shall provide\nnotice of such court order or requirement to the Discloser to enable the Discloser to seek a protective order or otherwise prevent or restrict such\ndisclosure. In the event of a limited disclosure of the Discloser’s Confidential Information as set forth in this Section, the Recipient shall continue to\ntreat such information as the Discloser’s Confidential Information for all other purposes and subject to the other terms and conditions of this Agreement.\n5. Destruction of Materials. Any materials or documents that have been furnished by the Discloser to the Recipient in connection with the Relationship\nshall be promptly destroyed by the Recipient, which destruction shall be certified in writing by Recipient, as well as all copies of such documentation,\nwithin ten days after (a) the Relationship has been rejected or concluded or (b) the written request of the Discloser; except the Recipient may keep one\ncopy of any such information for legal record-keeping purposes and shall not be required to erase electronic back-up files made in the ordinary course of\nbusiness provided that such electronic back-up files are not accessed or used for any purpose.\n6. No Rights Granted. All Confidential Information of the Discloser disclosed under this Agreement shall remain the sole property of the Discloser.\nNothing in this Agreement shall be construed as granting the Recipient any rights under any patent, copyright or other intellectual property right of the\nDiscloser, nor shall this Agreement grant the Recipient any rights in or to the Discloser’s Confidential Information other than the limited right to review\nsuch Confidential Information solely for the purpose of determining whether to enter into the Relationship.\n7. Term. This Agreement will be effective for a period of one (1) year after the Effective Date unless earlier terminated by a party upon thirty (30) days’\nprior written notice to the other party. The restrictions on use and disclosure of the Discloser’s Confidential Information by the Recipient shall survive\nany expiration or termination of this Agreement and shall continue in full force and effect for a period of five (5) years thereafter. Each party’s\nobligations under this Agreement shall be binding upon such party’s heirs, successors and assigns.\nMCDA\nPage2of5\nCONFIDENTIAL\n8. Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and\nassigns of the parties, provided that the Discloser’s Confidential Information may not be assigned by the Recipient without the prior written consent of\nthe Discloser. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective\nsuccessors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this\nAgreement.\n9. Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such\nprovision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (a) such\nprovision shall be excluded from this Agreement, (b) the balance of the Agreement shall be interpreted as if such provision were so excluded and (c) the\nbalance of the Agreement shall be enforceable in accordance with its terms.\n10. Independent Contractors. Discloser and Recipient are independent contractors, and nothing contained in this Agreement shall be construed to\nconstitute Discloser and Recipient as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking.\n11. Governing Law; Jurisdiction. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall\nbe governed, construed and interpreted in accordance with the laws of the State of Washington, without giving effect to principles of conflicts of law.\nEach of the parties hereto consents to the exclusive jurisdiction and venue of the courts of King County, Washington. The prevailing party shall be\nentitled to recover the reasonable attorneys’ fees and costs incurred by the prevailing party in any action brought to enforce any right arising under this\nAgreement.\n12. Remedies. Discloser and Recipient each agree that its obligations set forth in this Agreement are necessary and reasonable in order to protect the\nDiscloser and its business. Discloser and Recipient each expressly agree that due to the unique nature of the Discloser’s Confidential Information,\nmonetary damages would be inadequate to compensate the Discloser for any breach by the Recipient of its covenants and agreements set forth in this\nAgreement. Accordingly, Discloser and Recipient each agree and acknowledge that any such violation or threatened violation shall cause irreparable\ninjury to the Discloser and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the Discloser shall be entitled to\nobtain injunctive relief (subject to all ordinary requirements for granting such injunctive relief under applicable law being met) against the threatened\nbreach of this Agreement or the continuation of any such breach by the Recipient.\n13. Standstill Provision. Commencing on the Effective Date and for three (3) years thereafter, (the “Standstill Period”), neither Company nor any of\nCompany’s affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will, directly or\nindirectly (i) acquire, offer to acquire, agree to acquire or make a proposal to acquire, by purchase or otherwise, “beneficial ownership” (as defined in\nSection 13(d) of the Exchange Act) of any equity securities or assets, or rights or options to acquire any such securities or assets (through purchase,\nexchange, conversion or otherwise), of Discloser, including derivative securities representing the right to vote or economic benefits of any such\nsecurities; (ii) make, effect or commence any tender or exchange offer, merger or other business combination involving Discloser; (iii) consummate or\ncommence any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Discloser; (iv) make, or in any\nway participate in, any “solicitation” of proxies to vote or consent, or seek to advise or influence any person with respect to the voting of, any voting\nsecurities of Discloser or be or become a “participant” in any “election contest” with respect to Discloser (all within the meaning of Section 14 of the\nExchange Act); (v) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to, or\notherwise act in concert with any person in respect of, any voting equity securities of Discloser; (vi) otherwise act, alone or in concert with others, to\nseek representation on or to control or\nMCDA\nPage3of5\nCONFIDENTIAL\ninfluence the management, board of directors or policies of Discloser or any subsidiary; (vii) negotiate with or provide any information to any person\n(other than the Recipient’s Representatives in accordance with this Agreement) with respect to, or make any statement or proposal to any person (other\nthan the Recipient’s Representatives in accordance with this Agreement) with respect to, or make any public announcement or proposal or offer\nwhatsoever with respect to, or act as a financing source for or otherwise invest in any other persons in connection with, or otherwise solicit, seek or offer\nto effect any transactions or actions described in the foregoing clauses (i) through (vi), or make any other proposal or statement inconsistent with the\nterms of this Agreement or that otherwise could reasonably be expected to result in a public announcement regarding any such transactions or actions; or\n(viii) advise, assist, induce, or encourage any other persons in connection with any of the foregoing; unless and until, in the case of each of the foregoing\nclauses (i) through (viii), the Recipient has received the prior written invitation or approval of Discloser’s board of directors to do so. The Recipient also\nagrees that during the Standstill Period it will not request that Discloser or any of its Representatives amend or waive any provision of this Section 14\n(including this sentence). The Recipient hereby confirms that, as of the date hereof and except as disclosed to Discloser in writing prior to the date\nhereof, the Recipient does not have, directly or indirectly, beneficial ownership of equity securities, or rights or options to own or acquire any such\nsecurities (through purchase, exchange, conversion or otherwise), of Discloser. The expiration of the Standstill Period will not terminate or otherwise\naffect any of the other provisions of this Agreement. As used in this Section 14, “Representatives” means (x) subsidiaries and other affiliates,\n(y) Recipient’s directors, officers, employees, agents, representatives, accountants, attorneys and advisors, and (z) the directors, officers, employees,\npartners, agents, representatives, accountants, attorneys and advisors of Recipient’s subsidiaries and other affiliates.\n14. Amendment and Waiver. Any term of this Agreement may be amended with the written consent of Discloser and Recipient. Any amendment or\nwaiver effected in accordance with this Section shall be binding upon the parties and their respective successors and assigns. Failure to enforce any\nprovision of this Agreement by a party shall not constitute a waiver of any term hereof by such party.\n15. Entire Agreement. This Agreement is the product of both of the parties hereto, and constitutes the entire agreement between such parties pertaining\nto the subject matter hereof, and merges all prior negotiations and drafts of the parties with regard to the transactions contemplated herein. All other\nwritten or oral agreements existing between the parties hereto regarding such transactions are expressly canceled.\n16. Personal data. The parties may, as part of their contractual relationship and to perform their respective obligations under the Agreement, share\npersonal data about certain employees engaged by the parties, as applicable, who are working to fulfil the Agreement (hereinafter “Employees”).\nWithout otherwise limiting the parties’ rights and obligations related to personal data set out in this Agreement, each party acknowledges and agrees that\nit will, on behalf of the other party, provide its own Employees with information about the other party’s collection and processing of the employees’\npersonal data. Such information must comply with applicable data protection laws, including – to the extent applicable – Article 13 and 14 of Regulation\n(EU) 2016/679 of 27 April 2016 (the General Data Protection Regulation).\n17. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together\nshall constitute one instrument. Any signature page delivered by facsimile or electronic image transmission shall be binding to the same extent as an\noriginal signature page.\n[Signature page follows]\nMCDA\nPage4of5\nCONFIDENTIAL\nThe parties have executed this Agreement by their respective duly authorized representatives as of the dates set forth below.\nAlder BioPharmaceuticals, Inc.\nH. Lundbeck A/S\nBy:\n/s/ James B. Bucher, J.D .\nBy:\n/s/ Thomas B Riisager\nName:\nJames B. Bucher, J.D .\nName:\nThomas B Riisager\nTitle:\nSenior Vice President & General Counsel\nTitle:\nVP Corporate Business Development\nAddress: 11804 North Creek Parkway South\nAddress: Ottiliavej 9\nBothell, WA 98011\n2500 Valby\nU.S.A .\nDenmark\nMCDA\nPage5of5\nCONFIDENTIAL f5767a1bcfba57c7f5d07b9404a9ac3a.pdf effective_date jurisdiction party term EX-10.58 4 d13265dex1058.htm EX-10.58\nExhibit 10.58\nNon-Solicitation and Non-Disclosure Agreement\nUS Foods, Inc. (the “Company” as defined below) and Employee, for good and valuable consideration, the receipt and sufficiency of which\nhereby are acknowledged, knowingly and voluntarily agree as follows:\n1. Representations and Acknowledgments.\n(a) Consideration. In consideration for Employee’s agreement to enter into this Non-Solicitation and Non-Disclosure Agreement\n(the “Agreement”) and to be bound by its terms, Employee has received: (i) employment or continued employment; (ii) access to Company\nrelationships and Confidential Information described herein; (iii) the ability to participate in the Company’s Points of Focus program, a Company\nstock incentive plan, and/or other similar Company-sponsored programs or plans; and/or (iv) other good and valuable consideration.\n(b) Confidential Information and Goodwill. The Company agrees that upon the commencement of Employee’s employment (if a\nnew Employee) or continuation of employment coinciding with the Employee’s execution of this Agreement (if a current Employee), the\nCompany will make available, give Employee access to, allow Employee to become familiar with, and allow Employee to acquire knowledge of\nthe Company, its Customers, employees, operations, pricing methods, delivery schedules, sources of supply, vendor information, supplier\narrangements, shipping and routing procedures and schedules, order routing and/or freight management software, specialized routine and/or\nfreight management strategy and procedures, financial information, and other Confidential Information of the Company and its Customers that\nwill assist and enhance Employee’s ability to perform Employee’s duties with the Company. Employee recognizes that Employee, on behalf of\nthe Company, will develop close relationships with, gain special knowledge of, and promote and develop the loyalty of said customers and\nvendors. The Company’s Confidential Information, the goodwill of its customers and vendors, and its relationship with its employees have been\nand will continue to be developed through the Company’s investment of substantial time, effort and money. Employee further recognizes that\nEmployee is in a position to unfairly convert the Company’s business, customer accounts, vendor relationships and goodwill of customers,\nvendors and employees for use by Employee and other Persons in competition with the Company, and that this would cause the Company to\nsuffer immediate and irreparable injury.\n(c) No Other Agreement or Understanding. Employee represents and warrants that Employee is not a party to any agreement or\nunderstanding which would impair Employee’s ability to enter into this Agreement or otherwise preclude or restrict Employee’s employment\nwith the Company, and that Employee’s execution of this Agreement and employment with the Company will not violate any other agreement or\nunderstanding to which Employee is bound.\n(d) Survival. If, after executing this Agreement, Employee: (i) is promoted to, assigned to or otherwise assumes one or more\npositions or functions other than or in addition to Employee’s position or functions at the time Employee signed this Agreement, regardless of\ntitle, or (ii) is transferred or assigned to or otherwise works for any affiliate, subsidiary or other\n1\ndivision or business unit of the Company, the terms of this Agreement shall continue to apply with full force and effect. Employee acknowledges\nand understands that unless and until a subsequent written Agreement is signed by all parties to this Agreement that expressly supersedes this\nAgreement, this Agreement will continue in full force and effect.\n(e) PRESERVATION OF AT-WILL EMPLOYMENT RELATIONSHIP. EMPLOYEE AGREES THAT NO PROVISION IN\nTHIS AGREEMENT SHALL BE CONSTRUED TO CREATE AN EXPRESS OR IMPLIED EMPLOYMENT CONTRACT OR A PROMISE\nOF EMPLOYMENT FOR ANY SPECIFIC PERIOD OF TIME. EMPLOYEE FURTHER ACKNOWLEDGES AND AGREES THAT\nEMPLOYEE’S EMPLOYMENT WITH THE COMPANY IS “AT WILL” (UNLESS EMPLOYEE ENTERED INTO A WRITTEN\nEMPLOYMENT CONTRACT EXPRESSLY PROVIDING THAT HIS/HER EMPLOYMENT IS NOT AT WILL AND SIGNED BY AN\nOFFICER OF US FOODS, INC. WHO IS AUTHORIZED TO DO SO) AND CAN BE TERMINATED AT ANY TIME BY THE COMPANY\nOR EMPLOYEE, WITH OR WITHOUT REASON, WITH OR WITHOUT NOTICE, AND WITH OR WITHOUT CAUSE.\n(f) Termination of Employment. Employee understands and agrees that the obligations and restrictions imposed under this\nAgreement shall apply after the termination of employment, regardless of whether such termination is voluntary or involuntary, or is with or\nwithout cause or notice.\n2. Definitions. For the purposes of this Agreement, the following terms shall have the following meanings:\n(a) “Associate” means an employee of the Company.\n(b) “Company” means US Foods, Inc., its subsidiaries, its parent company USF Holding Corp., any entity owned or controlled by\nUSF Holding Corp. or US Foods, Inc. as well as any other businesses that US Foods, Inc., may acquire or establish after the execution of this\nAgreement and any successors and assigns.\n(c) “Business of the Company” is the food and foodservice distribution business, including the acquisition, procurement, production,\nsale and distribution of food and related products, equipment, goods and services to restaurants, schools, hospitals, and other institutions or\nestablishments that serve food.\n(d) “Person(s)” mean all individuals, partnerships, corporations, limited liability companies, firms, businesses, and other entities,\nother than the Company.\n(e) “Confidential Information” means any information (in whatever form and whether or not recorded in any media) relating to the\nBusiness of the Company (whether constituting a trade secret or not) and including, but not limited to, customer and vendor lists or other\ndocuments containing the names and/or job titles of the principal contact(s) of each customer and/or vendor; customer and vendor documents,\nrouting arrangements, files, purchases and account history; vendor information; route lists of sales employees; pricing, margins, sales allowances,\ndiscounts, incentives and pricing strategies and policies; invoices; procurement strategies and pricing; marketing and product information; order\nguides or histories; sales data\n2\nfor any employee, product, customer or territory; sales and delivery schedules; credit terms, policies and information, including invoicing and\npayment records; information on customer or vendor preferences; promotional programs; financial information of the Company or its customers\nor vendors; the terms, conditions and structures of the Company’s contracts and agreements with customers, vendors and suppliers; information\npertaining to the Company’s methods of operation, processes, strategies and techniques, including strategies for identifying and satisfying the\nneeds of specific customers and types of customers; and lists containing personal and personnel information about other employees of the\nCompany, including but not limited to their home and business telephone, mobile and pager numbers, addresses, compensation terms, customers\nserved by and vendors assigned to such employees, and job performance; which (i) is or has been disclosed to Employee (or of which Employee\nbecame aware) as a consequence of or through his or her relationship to the Company, (ii) has value to the Company or would be of value (actual\nor potential) to a competitor of the Company, and (iii) is not generally known, or readily available by lawful means, to the public (including\ncompiled information that is not publicly available in such a consolidated form). Confidential Information shall not include any information that\nhas been voluntarily disclosed to the public by the Company (except where such public disclosure has been made by Employee without\nauthorization) or that has been independently developed and disclosed by others, or that otherwise has entered the public domain through lawful\nmeans.\n(f) “Pre-Termination Period” means the eighteen (18) month period immediately prior to the termination of Employee’s\nemployment with the Company.\n(g) “Inventions.” For purposes of this Agreement, “Inventions” shall mean all software programs, source or object code,\nimprovements, formulas, developments, ideas, processes, techniques, know-how, data, and discoveries, whether patentable or unpatentable,\neither conceived or reduced to practice by Employee while in the Company’s or an Affiliated Company’s employ, either solely or jointly with\nothers, and whether or not during regular working hours, or conceived or reduced to practice by Employee within one year of the termination of\nEmployee’s employment with the Company using Company Confidential Information.\n(h) “Company Inventions.” For purposes of this Agreement, “Company Inventions” shall mean any Invention that either:\n(1) relates, at least in part, at the time of conception or reduction to practice of the Invention, to:\ni.\nthe Company’s Business, projects or products, or to the manufacture or utilization thereof; or\nii. the Company’s and/or an Affiliated Company’s actual or demonstrably anticipated research or development; or\n(2) results, at least in part, from any work performed directly or indirectly by Employee for the Company; or\n(3) results, at least in part, from the use of the Company’s or an Affiliated Company’s equipment, supplies, facilities or trade\nsecret information.\n3\n3. Non-Disclosure of Confidential Information.\n(a) At no time, either during or after the termination of employment, shall Employee directly or indirectly obtain, disclose or use for\nEmployee or any Person, or aid others in obtaining, disclosing or using any Confidential Information of the Company, other than as may be\nrequired in the performance of duties for and as authorized by the Company. All Confidential Information is and shall remain the sole property of\nthe Company. The Company understands that under the current laws of certain states, restrictions on the use or disclosure of confidential\ninformation must be of a finite duration. Accordingly, the parties agree that should the law of such a state be applied to this Agreement, the\nrestrictions on the use or disclosure of Confidential Information that is not a trade secret (the restriction on the use or disclosure of which shall be\nunlimited by time) shall apply only for a period of two (2) years from the termination of Employee’ s employment with the Company, which\nperiod Employee acknowledges to be reasonable under the circumstances at the time of execution of the Agreement.\n(b) Notwithstanding anything to the contrary, this Agreement shall not prevent Employee from revealing evidence of criminal\nwrongdoing to law enforcement or prohibit Employee from divulging Confidential Information by order of court or agency of competent\njurisdiction. However, Employee shall promptly inform the Company of any such situations and shall take such reasonable steps to prevent\ndisclosure of Confidential Information until the Company has been informed of such requested disclosure and the Company has had an\nopportunity to respond to the court or agency.\n4. Return of Company Property and Confidential Information. All records, files, customer order guides, pricelists, photo/videographic\nmaterials, computers and computer related equipment (e.g . hardware, software, disks, electronic storage devices, etc.), cell phones, smart phones,\nBlackberries, personal data assistants, keys, equipment, access cards, passwords, access codes, badges, credit cards or other tangible material,\nand all other documents, including but not limited to Confidential Information, Employee receives, acquires, produces or has access to as a result\nof his or her employment with the Company (regardless of the medium in which any information is stored) (collectively “Property”), are the\nexclusive property of the Company. Upon the termination of Employee’s employment, Employee shall return to the Company all Property of the\nCompany and all copies thereof in Employee’s possession or control.\n5. Non-Solicitation of Restricted Customers.\n(a) For the one (1) year period following the termination of Employee’s employment with the Company, Employee shall not, directly\nor indirectly, (for Employee or any other Person, whether as an employee, owner, consultant, independent contractor, or in any other capacity) for\nthe purpose of providing products or services competitive with those conducted, authorized, offered or provided by the Company, solicit, market,\nservice, contact, sell to or attempt to sell to any Person(s):\n(1) to whom Employee sold products or services on behalf of the Company at any time during the Pre-Termination Period,\nincluding sales performed while Employee was in training or providing vacation or leave coverage for another Associate; or\n4\n(2) to whom the Company sold products or services and with whom Employee had contact on behalf of the Company in\nconnection with such sale at any time during the Pre-Termination Period; or\n(3) to whom the Company sold products or services at any time during the Pre-Termination Period and which sale was made\nthrough any Associate whom Employee directly or indirectly managed or supervised (at any level of management or supervision); or\n(4) with regard to whom, at any time during the Pre-Termination Period, Employee (or any Associate whom Employee directly\nor indirectly managed or supervised, at any level of management or supervision): (i) participated in the preparation of a written sales\nproposal or bid containing Confidential Information to such Person on behalf of the Company; (ii) participated in the setting of\nprices, margins, or credit terms for such Person(s) on behalf of the Company; or (iii) used or received or created or reviewed any\nConfidential Information relating to such Person(s) on behalf of the Company; or\n(5) who is, or functions as, a food broker or contract management company or group purchasing organization or otherwise\nrepresents one or more customers or negotiates on their behalf, and to whom or through whom Employee or any Associate whom\nEmployee directly or indirectly managed or supervised (at any level of management or supervision) sold products or services on\nbehalf of the Company at any time during the Pre-Termination Period.\n(b) A “Restricted Customer” is that and are those Person(s) identified in Section 5(a) and 5(b) herein.\n(c) Examples of indirect solicitation, marketing, servicing, contacting, selling to or attempting to sell to, include but are not limited to,\nproviding Confidential Information to a Person(s) regarding a Restricted Customer; advising or encouraging a Restricted Customer to reduce or\ncease doing business with the Company or to do business with a Person that provides products or services competitive with the Company;\nswitching or swapping sales, solicitation, or service responsibility for a Restricted Customer with an employee of a Person that is competitive\nwith the Company; participating in the supervision or management of any Person or employee of such Person, regardless of other intervening\nlevels of management or supervision, with regard to a Restricted Customer; participating in the setting of prices, credit terms or margins for a\nRestricted Customer; participating in developing and executing marketing and sales strategies and decisions affecting a Restricted Customer; and\nreceiving any personal benefit (present or future) in the event a Restricted Customer should do any business with a Person.\n5\n6. Non-Solicitation of Company Employees. For a period of one (1) year following Employee’s termination of employment with the\nCompany, Employee will not, directly or indirectly, on behalf Employee or for any other Person, entice, induce, encourage or solicit or attempt to\nentice, induce, encourage or solicit any individual then employed by the Company and with whom the Employee had work-related dealings as a\nco-employee of the Company to leave such employment with the Company (this provision is not intended to restrict communications addressed\nto the general public, such as advertising to fill open positions) nor will the Employee hire any such individual for any other Person during the\nsame one-year period following the Employee’s termination.\n7. Ownership of Inventions.\n(a) Employee shall disclose all Inventions promptly and fully to the Company.\n(b) Except as excluded in Section 7(e) below, Employee hereby assigns, and agrees to assign, to the Company all of Employee’s\nright, title and interest in and to all Company Inventions and agrees that all such Company Inventions shall be the Company’s sole and exclusive\nproperty to the maximum extent permitted by law.\n(c) Employee shall at the request of the Company (but without additional compensation from the Company): (i) execute any and all\npapers and perform all lawful acts that the Company deems necessary for the preparation, filing, prosecution, and maintenance of applications for\nUnited States patents or copyrights and foreign patents or copyrights on any Company Inventions, (ii) execute such instruments as are necessary\nto assign to the Company or to the Company’s nominee, all of Employee’s right, title and interest in any Company Inventions so as to establish or\nperfect in the Company or in the Company’s nominee, the entire right, title and interest in such Company Inventions, and (iii) execute any\ninstruments necessary or that the Company may deem desirable in connection with any continuation, renewal or reissue of any patents in any\nCompany Inventions, renewal of any copyright registrations for any Company Inventions, or in the conduct of any proceedings or litigation\nrelating to any Company Inventions. All expenses incurred by the Employee by reason of the performance of any of the obligations set forth in\nthis Section 7(e) shall be borne by the Company.\n(d) Concurrent with Employee’s execution of this Agreement, Employee attaches a list and brief description of all unpatented\ninventions and discoveries, if any, made or conceived by Employee prior to Employee’s employment with the Company and that are to be\nexcluded from this Agreement. If no such list is attached at the time of execution of this Agreement, it shall be conclusively presumed that\nEmployee has waived any right Employee may have to any such invention or discovery which relates to the Company’s Business.\n(e) Provisions (a) through (d) of this Section 7 regarding assignment of right, title and interest do not apply to Inventions for which no\nequipment, supplies, facility or trade secret information of the Company was used and which was developed entirely on Employee’s own time,\nunless (i) the Inventions relate either to the business of the Company, or to the Company’s actual or demonstrably anticipated research or\ndevelopment, or (ii) the Inventions result from any work directly or indirectly performed by the Employee for the Company.\n6\n8. Non-Impairment of Common Law. Nothing in this Agreement shall relieve Employee of any duties or obligations Employee has to the\nCompany under statutory or common law, which include but are not limited to: fiduciary duties, the duty of loyalty, and the duty not to tortiously\ninterfere with business relationships.\n9. Reasonable and Necessary; Severability; Enforceability; Non-Waiver. The terms and provisions of this Agreement are severable and\nif any term or provision is held to be unenforceable, it shall be enforced to the maximum extent allowable under the law and reformed or severed\nto the minimum extent necessary to render it or the Agreement enforceable. Any such alteration shall not affect the validity and enforceability of\nany other term or provision. Employee acknowledges that the obligations contained in this Agreement are not indivisible to any extent but are\nfully divisible and reformable or severable as legally necessary whether through alteration of a word, clause or sentence. The Company’s failure\nto act upon any breach of this Agreement or waiver of any such breach shall not constitute a waiver of any preceding or succeeding breach, or of\nany other right.\n10. Waiver of Jury Trial. Any action, lawsuit, demand, claim or counterclaim over this Agreement or any of its terms shall be resolved by\na judge alone, and both parties hereby expressly waive and forever disclaim the right to a trial before a civil jury.\n11. Notification. If, within the one (1) year after the termination of Employee’s employment, the Employee provides services as an\nemployee, independent contractor or consultant, owner or in any other capacity, whether or not for compensation, to any Person that offers\nproducts or services competitive with those provided by the Company, then Employee shall promptly provide the Company with the following\ninformation about such Person: the name, address and telephone number of the location to which Employee is assigned, and his or her job title.\nEmployee shall promptly provide any such Person with a copy of this Agreement, and employee consents to the Company’s right, at any time, to\nnotify such Person of this Agreement, as well as the details of any alleged violations thereof.\n12. Non-Disparagement. During and after employment with the Company, Employee shall not divulge, disclose or communicate to others,\nin any manner whatsoever, information or statements that disparage or are intended to disparage the Company or its business reputation.\n13. Remedies for Breach. Employee agrees that any breach of this Agreement by Employee will cause the Company to suffer immediate\nand irreparable injury, for which there is no adequate remedy at law. In the event of a breach or threatened breach of any of the terms of this\nAgreement, Employee agrees the Company shall be entitled to seek and obtain enforcement of this Agreement by means of a decree of specific\nperformance, a temporary restraining order, a preliminary or permanent injunction, and any other remedies at law or equity which may be\navailable, including the right to receive monetary damages. Employee shall reimburse the Company for all reasonable attorneys’ fees and costs\nincurred by the Company in enforcing this Agreement.\n14. Other Agreements. In the event Employee executed other written agreements relating to this subject matter with the Company, and/or\nin the event Employee enters into other\n7\nwritten agreements that contain provisions similar to the provisions contained herein, all such provisions shall be interpreted to provide the\nCompany with cumulative rights and remedies and the benefits and protections provided to the Company under each such agreement shall be\ngiven full force and effect. No amendment, waiver or revocation of this Agreement shall be effective unless set forth in writing expressly stating\nthe amendment, waiver or revocation and signed by an authorized officer of the Company.\n15. Successors and Assigns. Employee expressly agrees that this Agreement, including the rights and obligations hereunder, may be\ntransferred and/or assigned by the Company without the further consent of Employee, and that this Agreement is for the benefit of and may be\nenforced by the Company, its present and future successors, assigns, subsidiaries, affiliates, and purchasers, but is not assignable by Employee.\n16. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without\napplying its conflicts of laws principles. The exclusive venue for any litigation between Employee and Company based upon any fact, matter or\nclaim arising out of or relating to this Agreement shall be the state or federal courts located in Chicago, Illinois, and Employee hereby consents\nto any such court’s exercise of personal jurisdiction over him/her for such purpose.\n17. Section Headings. The headings of sections contained in this Agreement are inserted only as a matter of convenience and for reference\nand in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.\nEmployee, intending to be legally bound, hereby acknowledges that he or she: has read this Agreement in its entirety and understands all of its\nterms and conditions; is entering into this Agreement voluntarily, without coercion from any source; and agrees to abide by all of the terms and\nconditions of this Agreement. Employee further represents that any questions regarding this Agreement have been answered by the Company to\nthe satisfaction of the Employee.\nUS FOODS, INC.\nEMPLOYEE\nBy:\n/s/ Juliette Pryor\n/s/ Pietro Satriano\nOfficer Signature\nEmployee Signature\nPrinted Name: Juliette Pryor\nPrinted Name: Pietro Satriano\nTitle:\nExecutive Vice President, General Counsel and\nChief Compliance Officer\nTitle:\nPresident and CEO\nDate:\n7/21/2015\nDate:\n7/21/2015\n8 EX-10.58 4 d13265dex1058.htm EX-10.58\nExhibit 10.58\nNon-Solicitation and Non-Disclosure Agreement\nUS Foods, Inc. (the “Company” as defined below) and Employee, for good and valuable consideration, the receipt and sufficiency of which\nhereby are acknowledged, knowingly and voluntarily agree as follows:\n1. Representations and Acknowledgments.\n(a) Consideration. In consideration for Employee’s agreement to enter into this Non-Solicitation and Non-Disclosure Agreement\n(the “Agreement”) and to be bound by its terms, Employee has received: (i) employment or continued employment; (ii) access to Company\nrelationships and Confidential Information described herein; (iii) the ability to participate in the Company’s Points of Focus program, a Company\nstock incentive plan, and/or other similar Company-sponsored programs or plans; and/or (iv) other good and valuable consideration.\n(b) Confidential Information and Goodwill. The Company agrees that upon the commencement of Employee’s employment (if a\nnew Employee) or continuation of employment coinciding with the Employee’s execution of this Agreement (if a current Employee), the\nCompany will make available, give Employee access to, allow Employee to become familiar with, and allow Employee to acquire knowledge of\nthe Company, its Customers, employees, operations, pricing methods, delivery schedules, sources of supply, vendor information, supplier\narrangements, shipping and routing procedures and schedules, order routing and/or freight management software, specialized routine and/or\nfreight management strategy and procedures, financial information, and other Confidential Information of the Company and its Customers that\nwill assist and enhance Employee’s ability to perform Employee’s duties with the Company. Employee recognizes that Employee, on behalf of\nthe Company, will develop close relationships with, gain special knowledge of, and promote and develop the loyalty of said customers and\nvendors. The Company’s Confidential Information, the goodwill of its customers and vendors, and its relationship with its employees have been\nand will continue to be developed through the Company’s investment of substantial time, effort and money. Employee further recognizes that\nEmployee is in a position to unfairly convert the Company’s business, customer accounts, vendor relationships and goodwill of customers,\nvendors and employees for use by Employee and other Persons in competition with the Company, and that this would cause the Company to\nsuffer immediate and irreparable injury.\n(c) No Other Agreement or Understanding. Employee represents and warrants that Employee is not a party to any agreement or\nunderstanding which would impair Employee’s ability to enter into this Agreement or otherwise preclude or restrict Employee’s employment\nwith the Company, and that Employee’s execution of this Agreement and employment with the Company will not violate any other agreement or\nunderstanding to which Employee is bound.\n(d) Survival. If, after executing this Agreement, Employee: (i) is promoted to, assigned to or otherwise assumes one or more\npositions or functions other than or in addition to Employee’s position or functions at the time Employee signed this Agreement, regardless of\ntitle, or (ii) is transferred or assigned to or otherwise works for any affiliate, subsidiary or other\n1\ndivision or business unit of the Company, the terms of this Agreement shall continue to apply with full force and effect. Employee acknowledges\nand understands that unless and until a subsequent written Agreement is signed by all parties to this Agreement that expressly supersedes this\nAgreement, this Agreement will continue in full force and effect.\n(e) PRESERVATION OF AT-WILL EMPLOYMENT RELATIONSHIP. EMPLOYEE AGREES THAT NO PROVISION IN\nTHIS AGREEMENT SHALL BE CONSTRUED TO CREATE AN EXPRESS OR IMPLIED EMPLOYMENT CONTRACT OR A PROMISE\nOF EMPLOYMENT FOR ANY SPECIFIC PERIOD OF TIME. EMPLOYEE FURTHER ACKNOWLEDGES AND AGREES THAT\nEMPLOYEE’S EMPLOYMENT WITH THE COMPANY IS “AT WILL” (UNLESS EMPLOYEE ENTERED INTO A WRITTEN\nEMPLOYMENT CONTRACT EXPRESSLY PROVIDING THAT HIS/HER EMPLOYMENT IS NOT AT WILL AND SIGNED BY AN\nOFFICER OF US FOODS, INC. WHO IS AUTHORIZED TO DO SO) AND CAN BE TERMINATED AT ANY TIME BY THE COMPANY\nOR EMPLOYEE, WITH OR WITHOUT REASON, WITH OR WITHOUT NOTICE, AND WITH OR WITHOUT CAUSE.\n(f) Termination of Employment. Employee understands and agrees that the obligations and restrictions imposed under this\nAgreement shall apply after the termination of employment, regardless of whether such termination is voluntary or involuntary, or is with or\nwithout cause or notice.\n2. Definitions. For the purposes of this Agreement, the following terms shall have the following meanings:\n(a) “Associate” means an employee of the Company.\n(b) “Company” means US Foods, Inc., its subsidiaries, its parent company USF Holding Corp., any entity owned or controlled by\nUSF Holding Corp. or US Foods, Inc. as well as any other businesses that US Foods, Inc., may acquire or establish after the execution of this\nAgreement and any successors and assigns.\n(c) “Business of the Company” is the food and foodservice distribution business, including the acquisition, procurement, production,\nsale and distribution of food and related products, equipment, goods and services to restaurants, schools, hospitals, and other institutions or\nestablishments that serve food.\n(d) “Person(s)” mean all individuals, partnerships, corporations, limited liability companies, firms, businesses, and other entities,\nother than the Company.\n(e) “Confidential Information” means any information (in whatever form and whether or not recorded in any media) relating to the\nBusiness of the Company (whether constituting a trade secret or not) and including, but not limited to, customer and vendor lists or other\ndocuments containing the names and/or job titles of the principal contact(s) of each customer and/or vendor; customer and vendor documents,\nrouting arrangements, files, purchases and account history; vendor information; route lists of sales employees; pricing, margins, sales allowances,\ndiscounts, incentives and pricing strategies and policies; invoices; procurement strategies and pricing; marketing and product information; order\nguides or histories; sales data\nfor any employee, product, customer or territory; sales and delivery schedules; credit terms, policies and information, including invoicing and\npayment records; information on customer or vendor preferences; promotional programs; financial information of the Company or its customers\nor vendors; the terms, conditions and structures of the Company’s contracts and agreements with customers, vendors and suppliers; information\npertaining to the Company’s methods of operation, processes, strategies and techniques, including strategies for identifying and satisfying the\nneeds of specific customers and types of customers; and lists containing personal and personnel information about other employees of the\nCompany, including but not limited to their home and business telephone, mobile and pager numbers, addresses, compensation terms, customers\nserved by and vendors assigned to such employees, and job performance; which (i) is or has been disclosed to Employee (or of which Employee\nbecame aware) as a consequence of or through his or her relationship to the Company, (ii) has value to the Company or would be of value (actual\nor potential) to a competitor of the Company, and (iii) is not generally known, or readily available by lawful means, to the public (including\ncompiled information that is not publicly available in such a consolidated form). Confidential Information shall not include any information that\nhas been voluntarily disclosed to the public by the Company (except where such public disclosure has been made by Employee without\nauthorization) or that has been independently developed and disclosed by others, or that otherwise has entered the public domain through lawful\nmeans.\n(f) “Pre-Termination Period” means the eighteen (18) month period immediately prior to the termination of Employee’s\nemployment with the Company.\n(g) “Inventions.” For purposes of this Agreement, “Inventions” shall mean all software programs, source or object code,\nimprovements, formulas, developments, ideas, processes, techniques, know-how, data, and discoveries, whether patentable or unpatentable,\neither conceived or reduced to practice by Employee while in the Company’s or an Affiliated Company’s employ, either solely or jointly with\nothers, and whether or not during regular working hours, or conceived or reduced to practice by Employee within one year of the termination of\nEmployee’s employment with the Company using Company Confidential Information.\n(h) “Company Inventions.” For purposes of this Agreement, “Company Inventions” shall mean any Invention that either:\n(1) relates, at least in part, at the time of conception or reduction to practice of the Invention, to:\nI the Company’s Business, projects or products, or to the manufacture or utilization thereof; or\nii. the Company’s and/or an Affiliated Company’s actual or demonstrably anticipated research or development; or\n(2) results, at least in part, from any work performed directly or indirectly by Employee for the Company; or\n(3) results, at least in part, from the use of the Company’s or an Affiliated Company’s equipment, supplies, facilities or trade\nsecret information.\n3. Non-Disclosure of Confidential Information.\n(a) At no time, either during or after the termination of employment, shall Employee directly or indirectly obtain, disclose or use for\nEmployee or any Person, or aid others in obtaining, disclosing or using any Confidential Information of the Company, other than as may be\nrequired in the performance of duties for and as authorized by the Company. All Confidential Information is and shall remain the sole property of\nthe Company. The Company understands that under the current laws of certain states, restrictions on the use or disclosure of confidential\ninformation must be of a finite duration. Accordingly, the parties agree that should the law of such a state be applied to this Agreement, the\nrestrictions on the use or disclosure of Confidential Information that is not a trade secret (the restriction on the use or disclosure of which shall be\nunlimited by time) shall apply only for a period of two (2) years from the termination of Employee’ s employment with the Company, which\nperiod Employee acknowledges to be reasonable under the circumstances at the time of execution of the Agreement.\n(b) Notwithstanding anything to the contrary, this Agreement shall not prevent Employee from revealing evidence of criminal\nwrongdoing to law enforcement or prohibit Employee from divulging Confidential Information by order of court or agency of competent\njurisdiction. However, Employee shall promptly inform the Company of any such situations and shall take such reasonable steps to prevent\ndisclosure of Confidential Information until the Company has been informed of such requested disclosure and the Company has had an\nopportunity to respond to the court or agency.\n4. Return of Company Property and Confidential Information. All records, files, customer order guides, pricelists, photo/videographic\nmaterials, computers and computer related equipment (e.g. hardware, software, disks, electronic storage devices, etc.), cell phones, smart phones,\nBlackberries, personal data assistants, keys, equipment, access cards, passwords, access codes, badges, credit cards or other tangible material,\nand all other documents, including but not limited to Confidential Information, Employee receives, acquires, produces or has access to as a result\nof his or her employment with the Company (regardless of the medium in which any information is stored) (collectively “Property”), are the\nexclusive property of the Company. Upon the termination of Employee’s employment, Employee shall return to the Company all Property of the\nCompany and all copies thereof in Employee’s possession or control.\n5. Non-Solicitation of Restricted Customers.\n(a) For the one (1) year period following the termination of Employee’s employment with the Company, Employee shall not, directly\nor indirectly, (for Employee or any other Person, whether as an employee, owner, consultant, independent contractor, or in any other capacity) for\nthe purpose of providing products or services competitive with those conducted, authorized, offered or provided by the Company, solicit, market,\nservice, contact, sell to or attempt to sell to any Person(s):\n(1) to whom Employee sold products or services on behalf of the Company at any time during the Pre-Termination Period,\nincluding sales performed while Employee was in training or providing vacation or leave coverage for another Associate; or\n4\n(2) to whom the Company sold products or services and with whom Employee had contact on behalf of the Company in\nconnection with such sale at any time during the Pre-Termination Period; or\n(3) to whom the Company sold products or services at any time during the Pre-Termination Period and which sale was made\nthrough any Associate whom Employee directly or indirectly managed or supervised (at any level of management or supervision); or\n(4) with regard to whom, at any time during the Pre-Termination Period, Employee (or any Associate whom Employee directly\nor indirectly managed or supervised, at any level of management or supervision): (i) participated in the preparation of a written sales\nproposal or bid containing Confidential Information to such Person on behalf of the Company; (ii) participated in the setting of\nprices, margins, or credit terms for such Person(s) on behalf of the Company; or (iii) used or received or created or reviewed any\nConfidential Information relating to such Person(s) on behalf of the Company; or\n(5) who is, or functions as, a food broker or contract management company or group purchasing organization or otherwise\nrepresents one or more customers or negotiates on their behalf, and to whom or through whom Employee or any Associate whom\nEmployee directly or indirectly managed or supervised (at any level of management or supervision) sold products or services on\nbehalf of the Company at any time during the Pre-Termination Period.\n(b) A “Restricted Customer” is that and are those Person(s) identified in Section 5(a) and 5(b) herein.\n(c) Examples of indirect solicitation, marketing, servicing, contacting, selling to or attempting to sell to, include but are not limited to,\nproviding Confidential Information to a Person(s) regarding a Restricted Customer; advising or encouraging a Restricted Customer to reduce or cease doing business with the Company or to do business with a Person that provides products or services competitive with the Company; switching or swapping sales, solicitation, or service responsibility for a Restricted Customer with an employee of a Person that is competitive with the Company; participating in the supervision or management of any Person or employee of such Person, regardless of other intervening levels of management or supervision, with regard to a Restricted Customer; participating in the setting of prices, credit terms or margins for a Restricted Customer; participating in developing and executing marketing and sales strategies and decisions affecting a Restricted Customer; and receiving any personal benefit (present or future) in the event a Restricted Customer should do any business with a Person. 5\nCompany, Employee will not, directly or indirectly, on behalf Employee or for any other Person, entice, induce, encourage or solicit or attempt to\nentice, induce, encourage or solicit any individual then employed by the Company and with whom the Employee had work-related dealings as a\nco-employee of the Company to leave such employment with the Company (this provision is not intended to restrict communications addressed\nto the general public, such as advertising to fill open positions) nor will the Employee hire any such individual for any other Person during the\nsame one-year period following the Employee’s termination.\n7. Ownership of Inventions.\n(a) Employee shall disclose all Inventions promptly and fully to the Company.\n(b) Except as excluded in Section 7(e) below, Employee hereby assigns, and agrees to assign, to the Company all of Employee’s\nright, title and interest in and to all Company Inventions and agrees that all such Company Inventions shall be the Company’s sole and exclusive\nproperty to the maximum extent permitted by law.\n(c) Employee shall at the request of the Company (but without additional compensation from the Company): (i) execute any and all\npapers and perform all lawful acts that the Company deems necessary for the preparation, filing, prosecution, and maintenance of applications for\nUnited States patents or copyrights and foreign patents or copyrights on any Company Inventions, (ii) execute such instruments as are necessary\nto assign to the Company or to the Company’s nominee, all of Employee’s right, title and interest in any Company Inventions so as to establish or\nperfect in the Company or in the Company’s nominee, the entire right, title and interest in such Company Inventions, and (iii) execute any\ninstruments necessary or that the Company may deem desirable in connection with any continuation, renewal or reissue of any patents in any\nCompany Inventions, renewal of any copyright registrations for any Company Inventions, or in the conduct of any proceedings or litigation\nrelating to any Company Inventions. All expenses incurred by the Employee by reason of the performance of any of the obligations set forth in\nthis Section 7(e) shall be borne by the Company.\n(d) Concurrent with Employee’s execution of this Agreement, Employee attaches a list and brief description of all unpatented\ninventions and discoveries, if any, made or conceived by Employee prior to Employee’s employment with the Company and that are to be\nexcluded from this Agreement. If no such list is attached at the time of execution of this Agreement, it shall be conclusively presumed that\nEmployee has waived any right Employee may have to any such invention or discovery which relates to the Company’s Business.\n(e) Provisions (a) through (d) of this Section 7 regarding assignment of right, title and interest do not apply to Inventions for which no\nequipment, supplies, facility or trade secret information of the Company was used and which was developed entirely on Employee’s own time,\nunless (i) the Inventions relate either to the business of the Company, or to the Company’s actual or demonstrably anticipated research or\ndevelopment, or (ii) the Inventions result from any work directly or indirectly performed by the Employee for the Company.\n6\n8. Non-Impairment of Common Law. Nothing in this Agreement shall relieve Employee of any duties or obligations Employee has to the\nCompany under statutory or common law, which include but are not limited to: fiduciary duties, the duty of loyalty, and the duty not to tortiously\ninterfere with business relationships.\nif any term or provision is held to be unenforceable, it shall be enforced to the maximum extent allowable under the law and reformed or severed\nto the minimum extent necessary to render it or the Agreement enforceable. Any such alteration shall not affect the validity and enforceability of\nany other term or provision. Employee acknowledges that the obligations contained in this Agreement are not indivisible to any extent but are\nfully divisible and reformable or severable as legally necessary whether through alteration of a word, clause or sentence. The Company’s failure\nto act upon any breach of this Agreement or waiver of any such breach shall not constitute a waiver of any preceding or succeeding breach, or of\nany other right.\n10. Waiver of Jury Trial. Any action, lawsuit, demand, claim or counterclaim over this Agreement or any of its terms shall be resolved by\na judge alone, and both parties hereby expressly waive and forever disclaim the right to a trial before a civil jury.\n11. Notification. If, within the one (1) year after the termination of Employee’s employment, the Employee provides services as an\nemployee, independent contractor or consultant, owner or in any other capacity, whether or not for compensation, to any Person that offers\nproducts or services competitive with those provided by the Company, then Employee shall promptly provide the Company with the following\ninformation about such Person: the name, address and telephone number of the location to which Employee is assigned, and his or her job title.\nEmployee shall promptly provide any such Person with a copy of this Agreement, and employee consents to the Company’s right, at any time, to\nnotify such Person of this Agreement, as well as the details of any alleged violations thereof.\n12. Non-Disparagement. During and after employment with the Company, Employee shall not divulge, disclose or communicate to others,\nin any manner whatsoever, information or statements that disparage or are intended to disparage the Company or its business reputation.\n13. Remedies for Breach. Employee agrees that any breach of this Agreement by Employee will cause the Company to suffer immediate\nand irreparable injury, for which there is no adequate remedy at law. In the event of a breach or threatened breach of any of the terms of this\nAgreement, Employee agrees the Company shall be entitled to seek and obtain enforcement of this Agreement by means of a decree of specific\nperformance, a temporary restraining order, a preliminary or permanent injunction, and any other remedies at law or equity which may be\navailable, including the right to receive monetary damages. Employee shall reimburse the Company for all reasonable attorneys’ fees and costs\nincurred by the Company in enforcing this Agreement.\n14. Other Agreements. In the event Employee executed other written agreements relating to this subject matter with the Company, and/or\nin the event Employee enters into other\nwritten agreements that contain provisions similar to the provisions contained herein, all such provisions shall be interpreted to provide the\nCompany with cumulative rights and remedies and the benefits and protections provided to the Company under each such agreement shall be\ngiven full force and effect. No amendment, waiver or revocation of this Agreement shall be effective unless set forth in writing expressly stating\nthe amendment, waiver or revocation and signed by an authorized officer of the Company.\n15. Successors and Assigns. Employee expressly agrees that this Agreement, including the rights and obligations hereunder, may be\ntransferred and/or assigned by the Company without the further consent of Employee, and that this Agreement is for the benefit of and may be\nenforced by the Company, its present and future successors, assigns, subsidiaries, affiliates, and purchasers, but is not assignable by Employee.\n16. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without\napplying its conflicts of laws principles. The exclusive venue for any litigation between Employee and Company based upon any fact, matter or\nclaim arising out of or relating to this Agreement shall be the state or federal courts located in Chicago, Illinois, and Employee hereby consents\nto any such court’s exercise of personal jurisdiction over him/her for such purpose.\n17. Section Headings. The headings of sections contained in this Agreement are inserted only as a matter of convenience and for reference\nand in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.\nEmployee, intending to be legally bound, hereby acknowledges that he or she: has read this Agreement in its entirety and understands all of its\nterms and conditions; is entering into this Agreement voluntarily, without coercion from any source; and agrees to abide by all of the terms and\nconditions of this Agreement. Employee further represents that any questions regarding this Agreement have been answered by the Company to\nthe satisfaction of the Employee.\nUS FOODS, INC. EMPLOYEE\nBy: /s/ Juliette Pryor /s/ Pietro Satriano\nOfficer Signature Employee Signature\nPrinted Name: Juliette Pryor Printed Name: Pietro Satriano\nTitle: Executive Vice President, General Counsel and Title: President and CEO\nChief Compliance Officer\nDate: 7/21/2015 Date: 7/21/2015 EX-10.58 4 d13265dex1058.htm EX-10.58\nExhibit 10.58\nNon-Solicitation and Non-Disclosure Agreement\nUS Foods, Inc. (the "Company" as defined below) and Employee, for good and valuable consideration, the receipt and sufficiency of which\nhereby are acknowledged, knowingly and voluntarily agree as follows:\n1. Representations and Acknowledgments.\n(a) Consideration. In consideration for Employee's agreement to enter into this Non-Solicitation and Non-Disclosure Agreement\n(the "Agreement") and to be bound by its terms, Employee has received: (i) employment or continued employment; (ii) access to Company\nrelationships and Confidential Information described herein; (iii) the ability to participate in the Company's Points of Focus program, a Company\nstock incentive plan, and/or other similar Company-sponsored programs or plans; and/or (iv) other good and valuable consideration.\n(b) Confidential Information and Goodwill. The Company agrees that upon the commencement of Employee's employment (if a\nnew Employee) or continuation of employment coinciding with the Employee's execution of this Agreement (if a current Employee), the\nCompany will make available, give Employee access to, allow Employee to become familiar with, and allow Employee to acquire knowledge of\nthe Company, its Customers, employees, operations, pricing methods, delivery schedules, sources of supply, vendor information, supplier\narrangements, shipping and routing procedures and schedules, order routing and/or freight management software, specialized routine and/or\nfreight management strategy and procedures, financial information, and other Confidential Information of the Company and its Customers that\nwill assist and enhance Employee's ability to perform Employee's duties with the Company. Employee recognizes that Employee, on behalf\nof\nthe Company, will develop close relationships with, gain special knowledge of, and promote and develop the loyalty of said customers and\nvendors. The Company's Confidential Information, the goodwill of its customers and vendors, and its relationship with its employees have been\nand will continue to be developed through the Company's investment of substantial time, effort and money. Employee further recognizes that\nEmployee is in a position to unfairly convert the Company's business, customer accounts, vendor relationships and goodwill of customers,\nvendors and employees for use by Employee and other Persons in competition with the Company, and that this would cause the Company\nto\nsuffer immediate and irreparable injury.\n(c) No Other Agreement or Understanding. Employee represents and warrants that Employee is not a party to any agreement or\nunderstanding which would impair Employee's ability to enter into this Agreement or otherwise preclude or restrict Employee's employment\nwith the Company, and that Employee's execution of this Agreement and employment with the Company will not violate any other agreement\nor\nunderstanding to which Employee is bound.\n(d) Survival. If, after executing this Agreement, Employee: (i) is promoted to, assigned to or otherwise assumes one or more\npositions or functions other than or in addition to Employee's position or functions at the time Employee signed this Agreement, regardless of\ntitle, or (ii) is transferred or assigned to or otherwise works for any affiliate, subsidiary or other\n1\ndivision or business unit of the Company, the terms of this Agreement shall continue to apply with full force and effect. Employee acknowledges\nand understands that unless and until a subsequent written Agreement is signed by all parties to this Agreement that expressly supersedes this\nAgreement, this Agreement will continue in ful force and effect.\n(e) PRESERVATION OF AT-WILL EMPLOYMENT RELATIONSHIP. EMPLOYEE AGREES THAT NO PROVISION IN\nTHIS AGREEMENT SHALL BE CONSTRUED TO CREATE AN EXPRESS OR IMPLIED EMPLOYMENT CONTRACT OR A PROMISE\nOF EMPLOYMENT FOR ANY SPECIFIC PERIOD OF TIME. EMPLOYEE FURTHER ACKNOWLEDGES AND AGREES THAT\nEMPLOYEE'S EMPLOYMENT WITH THE COMPANY IS "AT WILL" (UNLESS EMPLOYEE ENTERED INTO A WRITTEN\nEMPLOYMENT CONTRACT EXPRESSLY PROVIDING THAT HIS/HER EMPLOYMENT IS NOT AT WILL AND SIGNED BY AN\nOFFICER OF US FOODS, INC. WHO IS AUTHORIZED TO DO SO) AND CAN BE TERMINATED AT ANY TIME BY THE COMPANY\nOR EMPLOYEE, WITH OR WITHOUT REASON, WITH OR WITHOUT NOTICE, AND WITH OR WITHOUT CAUSE.\n(f) Termination of Employment. Employee understands and agrees that the obligations and restrictions imposed under this\nAgreement shall apply after the termination of employment, regardless of whether such termination is voluntary or involuntary, or is with or\nwithout cause or notice.\n2.\nDefinitions. For the purposes of this Agreement, the following terms shall have the following meanings:\n(a) "Associate" means an employee of the Company.\n(b) "Company" means US Foods, Inc., its subsidiaries, its parent company USF Holding Corp., any entity owned or controlled by\nUSF Holding Corp. or US Foods, Inc. as well as any other businesses that US Foods, Inc., may acquire or establish after the execution of this\nAgreement and any successors and assigns.\n(c) "Business of the Company" is the food and foodservice distribution business, including the acquisition, procurement, production,\nsale and distribution of food and related products, equipment, goods and services to restaurants, schools, hospitals, and other institutions or\nestablishments that serve food.\n(d) "Person(s)" mean all individuals, partnerships, corporations, limited liability companies, firms, businesses, and other entities,\nother than the Company.\n(e) "Confidential Information" means any information (in whatever form and whether or not recorded in any media) relating to the\nBusiness of the Company (whether constituting a trade secret or not) and including, but not limited to, customer and vendor lists or other\ndocuments containing the names and/or job titles of the principal contact(s) of each customer and/or vendor; customer and vendor documents,\nrouting arrangements, files, purchases and account history; vendor information; route lists of sales employees; pricing, margins, sales allowances\ndiscounts, incentives and pricing strategies and policies; invoices; procurement strategies and pricing; marketing and product information; order\nguides or histories; sales data\n2\nfor any employee, product, customer or territory; sales and delivery schedules; credit terms, policies and information, including invoicing and\npayment records; information on customer or vendor preferences; promotional programs; financial information of the Company or its customers\nor vendors; the terms, conditions and structures of the Company's contracts and agreements with customers, vendors and suppliers; information\npertaining to the Company's methods of operation, processes, strategies and techniques, including strategies for identifying and satisfying the\nneeds of specific customers and types of customers; and lists containing personal and personnel information about other employees of the\nCompany, including but not limited to their home and business telephone, mobile and pager numbers, addresses, compensation terms, customers\nserved by and vendors assigned to such employees, and job performance; which (i) is or has been disclosed to Employee (or of which Employee\nbecame aware) as a consequence of or through his or her relationship to the Company, (ii) has value to the Company or would be of value (actual\nor potential) to a competitor of the Company, and (iii) is not generally known, or readily available by lawful means, to the public (including\ncompiled information that is not publicly available in such a consolidated form). Confidential Information shall not include any information that\nhas been voluntarily disclosed to the public by the Company (except where such public disclosure has been made by Employee without\nauthorization) or that has been independently developed and disclosed by others, or that otherwise has entered the public domain through lawful\nmeans.\n(f) "Pre-Termination Period" means the eighteen (18) month period immediately prior to the termination of Employee's\nemployment with the Company.\n(g) "Inventions." For purposes of this Agreement, "Inventions" shall mean all software programs, source or object code,\nimprovements, formulas, developments, ideas, processes, techniques, know-how, data, and discoveries, whether patentable or unpatentable,\neither conceived or reduced to practice by Employee while in the Company's or an Affiliated Company's employ, either solely or jointly with\nothers, and whether or not during regular working hours, or conceived or reduced to practice by Employee within one year of the termination of\nEmployee's employment with the Company using Company Confidential Information.\n(h) "Company Inventions." For purposes of this Agreement, "Company Inventions" shall mean any Invention that either:\n(1) relates, at least in part, at the time of conception or reduction to practice of the Invention,\nto:\ni.\nthe Company's Business, projects or products, or to the manufacture or utilization thereof; or\nii.\nthe Company's and/or an Affiliated Company's actual or demonstrably anticipated research or development; or\n(2) results, at least in part, from any work performed directly or indirectly by Employee for the Company; or\n(3) results, at least in part, from the use of the Company's or an Affiliated Company's equipment, supplies, facilities or trade\nsecret information.\n3\n3. Non-Disclosure of Confidential Information.\n(a) At no time, either during or after the termination of employment, shall Employee directly or indirectly obtain, disclose or use for\nEmployee or any Person, or aid others in obtaining, disclosing or using any Confidential Information of the Company, other than as may be\nrequired in the performance of duties for and as authorized by the Company. All Confidential Information is and shall remain the sole property\nof\nthe Company. The Company understands that under the current laws of certain states, restrictions on the use or disclosure of confidential\ninformation must be of a finite duration. Accordingly, the parties agree that should the law of such a state be applied to this Agreement, the\nrestrictions on the use or disclosure of Confidential Information that is not a trade secret (the restriction on the use or disclosure of which shall\nbe\nunlimited by time) shall apply only for a period of two (2) years from the termination of Employee' S employment with the Company, which\nperiod Employee acknowledges to be reasonable under the circumstances at the time of execution of the Agreement.\n(b) Notwithstanding anything to the contrary, this Agreement shall not prevent Employee from revealing evidence of criminal\nwrongdoing to law enforcement or prohibit Employee from divulging Confidential Information by order of court or agency of competent\njurisdiction. However, Employee shall promptly inform the Company of any such situations and shall take such reasonable steps to prevent\ndisclosure of Confidential Information until the Company has been informed of such requested disclosure and the Company has had an\nopportunity to respond to the court or agency.\n4.\nReturn of Company Property and Confidential Information. All records, files, customer order guides, pricelists, photo/videographic\nmaterials, computers and computer related equipment (e.g. hardware, software, disks, electronic storage devices, etc.), cell phones, smart phones,\nBlackberries, personal data assistants, keys, equipment, access cards, passwords, access codes, badges, credit cards or other tangible material,\nand all other documents, including but not limited to Confidential Information, Employee receives, acquires, produces or has access to as a result\nof his or her employment with the Company (regardless of the medium in which any information is stored) (collectively "Property"), are the\nexclusive property of the Company. Upon the termination of Employee's employment, Employee shall return to the Company all Property of the\nCompany and all copies thereof in Employee's possession or control.\n5. Non-Solicitation of Restricted Customers.\n(a) For the one (1) year period following the termination of Employee's employment with the Company, Employee shall not, directly\nor indirectly, (for Employee or any other Person, whether as an employee, owner, consultant, independent contractor, or in any other capacity) for\nthe purpose of providing products or services competitive with those conducted, authorized, offered or provided by the Company, solicit, market,\nservice, contact, sell to or attempt to sell to any Person(s):\n(1) to whom Employee sold products or services on behalf of the Company at any time during the Pre-Termination Period,\nincluding sales performed while Employee was in training or providing vacation or leave coverage for another Associate; or\n4\n(2) to whom the Company sold products or services and with whom Employee had contact on behalf of the Company\nin\nconnection with such sale at any time during the Pre-Termination Period; or\n(3) to whom the Company sold products or services at any time during the Pre-Termination Period and which sale was made\nthrough any Associate whom Employee directly or indirectly managed or supervised (at any level of management or supervision);\nor\n(4) with regard to whom, at any time during the Pre-Termination Period, Employee (or any Associate whom Employee directly\nor indirectly managed or supervised, at any level of management or supervision): (i) participated in the preparation of a written sales\nproposal or bid containing Confidential Information to such Person on behalf of the Company; (ii) participated in the setting of\nprices, margins, or credit terms for such Person(s) on behalf of the Company; or (iii) used or received or created or reviewed any\nConfidential Information relating to such Person(s) on behalf of the Company; or\n(5) who is, or functions as, a food broker or contract management company or group purchasing organization or otherwise\nrepresents one or more customers or negotiates on their behalf, and to whom or through whom Employee or any Associate whom\nEmployee directly or indirectly managed or supervised (at any level of management or supervision) sold products or services on\nbehalf of the Company at any time during the Pre-Termination Period.\n(b) A "Restricted Customer" is that and are those Person(s) identified in Section 5(a) and 5(b) herein.\n(c) Examples of indirect solicitation, marketing, servicing, contacting, selling to or attempting to sell to, include but are not limited to,\nproviding Confidential Information to a Person(s) regarding a Restricted Customer; advising or encouraging a Restricted Customer to reduce or\ncease doing business with the Company or to do business with a Person that provides products or services competitive with the Company;\nswitching or swapping sales, solicitation, or service responsibility for a Restricted Customer with an employee of a Person that is competitive\nwith the Company; participating in the supervision or management of any Person or employee of such Person, regardless of other intervening\nlevels of management or supervision, with regard to a Restricted Customer; participating in the setting of prices, credit terms or margins for a\nRestricted Customer; participating in developing and executing marketing and sales strategies and decisions affecting a Restricted Customer; and\nreceiving any personal benefit (present or future) in the event a Restricted Customer should do any business with a Person.\n5\n6. Non-Solicitation of Company Employees. For a period of one (1) year following Employee's termination of employment with the\nCompany, Employee will not, directly or indirectly, on behalf Employee or for any other Person, entice, induce, encourage or solicit or attempt to\nentice, induce, encourage or solicit any individual then employed by the Company and with whom the Employee had work-related dealings as\na\nco-employee of the Company to leave such employment with the Company (this provision is not intended to restrict communications addressed\nto the general public, such as advertising to fill open positions) nor will the Employee hire any such individual for any other Person during the\nsame one-year period following the Employee's termination.\n7. Ownership of Inventions.\n(a) Employee shall disclose all Inventions promptly and fully to the Company.\n(b) Except as excluded in Section 7(e) below, Employee hereby assigns, and agrees to assign, to the Company all of Employee's\nright, title and interest in and to all Company Inventions and agrees that all such Company Inventions shall be the Company's sole and exclusive\nproperty to the maximum extent permitted by law.\n(c) Employee shall at the request of the Company (but without additional compensation from the Company): (i) execute any and all\npapers and perform all lawful acts that the Company deems necessary for the preparation, filing, prosecution, and maintenance of applications for\nUnited States patents or copyrights and foreign patents or copyrights on any Company Inventions, (ii) execute such instruments as are necessary\nto assign to the Company or to the Company's nominee, all of Employee's right, title and interest in any Company Inventions so as to establish or\nperfect in the Company or in the Company's nominee, the entire right, title and interest in such Company Inventions, and (iii) execute any\ninstruments necessary or that the Company may deem desirable in connection with any continuation, renewal or reissue of any patents in any\nCompany Inventions, renewal of any copyright registrations for any Company Inventions, or in the conduct of any proceedings or litigation\nrelating to any Company Inventions. All expenses incurred by the Employee by reason of the performance of any of the obligations set forth in\nthis Section 7(e) shall be borne by the Company.\n(d) Concurrent with Employee's execution of this Agreement, Employee attaches a list and brief description of all unpatented\ninventions and discoveries, if any, made or conceived by Employee prior to Employee's employment with the Company and that are to be\nexcluded from this Agreement. If no such list is attached at the time of execution of this Agreement, it shall be conclusively presumed that\nEmployee has waived any right Employee may have to any such invention or discovery which relates to the Company's Business.\n(e) Provisions (a) through (d) of this Section 7 regarding assignment of right, title and interest do not apply to Inventions for which no\nequipment, supplies, facility or trade secret information of the Company was used and which was developed entirely on Employee's own time,\nunless (i) the Inventions relate either to the business of the Company, or to the Company's actual or demonstrably anticipated research or\ndevelopment, or (ii) the Inventions result from any work directly or indirectly performed by the Employee for the Company.\n6\n8. Non-Impairment of Common Law. Nothing in this Agreement shall relieve Employee of any duties or obligations Employee has to the\nCompany under statutory or common law, which include but are not limited to: fiduciary duties, the duty of loyalty, and the duty not to tortiously\ninterfere with business relationships.\n9. Reasonable and Necessary; Severability; Enforceability; Non-Waiver. The terms and provisions of this Agreement are severable and\nif any term or provision is held to be unenforceable, it shall be enforced to the maximum extent allowable under the law and reformed or severed\nto the minimum extent necessary to render it or the Agreement enforceable. Any such alteration shall not affect the validity and enforceability of\nany other term or provision. Employee acknowledges that the obligations contained in this Agreement are not indivisible to any extent but are\nfully divisible and reformable or severable as legally necessary whether through alteration of a word, clause or sentence. The Company's failure\nto act upon any breach of this Agreement or waiver of any such breach shall not constitute a waiver of any preceding or succeeding breach, or\nof\nany other right.\n10. Waiver of Jury Trial. Any action, lawsuit, demand, claim or counterclaim over this Agreement or any of its terms shall be resolved by\na judge alone, and both parties hereby expressly waive and forever disclaim the right to a trial before a civil jury.\n11. Notification. If, within the one (1) year after the termination of Employee's employment, the Employee provides services as an\nemployee, independent contractor or consultant, owner or in any other capacity, whether or not for compensation, to any Person that offers\nproducts or services competitive with those provided by the Company, then Employee shall promptly provide the Company with the following\ninformation about such Person: the name, address and telephone number of the location to which Employee is assigned, and his or her job title.\nEmployee shall promptly provide any such Person with a copy of this Agreement, and employee consents to the Company's right, at any time, to\nnotify such Person of this Agreement, as well as the details of any alleged violations thereof.\n12. Non-Disparagement. During and after employment with the Company, Employee shall not divulge, disclose or communicate to others,\nin any manner whatsoever, information or statements that disparage or are intended to disparage the Company or its business reputation.\n13. Remedies for Breach. Employee agrees that any breach of this Agreement by Employee will cause the Company to suffer immediate\nand irreparable injury, for which there is no adequate remedy at law. In the event of a breach or threatened breach of any of the terms of this\nAgreement, Employee agrees the Company shall be entitled to seek and obtain enforcement of this Agreement by means of a decree of specific\nperformance, a temporary restraining order, a preliminary or permanent injunction, and any other remedies at law or equity which may be\navailable, including the right to receive monetary damages. Employee shall reimburse the Company for all reasonable attorneys' fees and costs\nincurred by the Company in enforcing this Agreement.\n14. Other Agreements. In the event Employee executed other written agreements relating to this subject matter with the Company, and/or\nin the event Employee enters into other\n7\nwritten agreements that contain provisions similar to the provisions contained herein, all such provisions shall be interpreted to provide the\nCompany with cumulative rights and remedies and the benefits and protections provided to the Company under each such agreement shall be\ngiven full force and effect. No amendment, waiver or revocation of this Agreement shall be effective unless set forth in writing expressly stating\nthe amendment, waiver or revocation and signed by an authorized officer of the Company.\n15. Successors and Assigns. Employee expressly agrees that this Agreement, including the rights and obligations hereunder, may be\ntransferred and/or assigned by the Company without the further consent of Employee, and that this Agreement is for the benefit of and may be\nenforced by the Company, its present and future successors, assigns, subsidiaries, affiliates, and purchasers, but is not assignable by Employee.\n16. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without\napplying its conflicts of laws principles. The exclusive venue for any litigation between Employee and Company based upon any fact, matter or\nclaim arising out of or relating to this Agreement shall be the state or federal courts located in Chicago, Illinois, and Employee hereby consents\nto any such court's exercise of personal jurisdiction over him/her for such purpose.\n17.\nSection Headings. The headings of sections contained in this Agreement are inserted only as a matter of convenience and for reference\nand in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.\nEmployee, intending to be legally bound, hereby acknowledges that he or she: has read this Agreement in its entirety and understands all of its\nterms and conditions; is entering into this Agreement voluntarily, without coercion from any source; and agrees to abide by all of the terms and\nconditions of this Agreement. Employee further represents that any questions regarding this Agreement have been answered by the Company to\nthe satisfaction of the Employee.\nUS FOODS, INC.\nEMPLOYEE\nBy:\n/s/ Juliette Pryor\n/s/ Pietro Satriano\nOfficer Signature\nEmployee Signature\nPrinted Name: Juliette Pryor\nPrinted Name: Pietro Satriano\nTitle:\nExecutive Vice President, General Counsel and\nTitle:\nPresident and CEO\nChief Compliance Officer\nDate:\n7/21/2015\nDate:\n7/21/2015\n8 EX-10.58 4 d13265dex1058.htm EX-10.58\nExhibit 10.58\nNon-Solicitation and Non-Disclosure Agreement\nUS Foods, Inc. (the “Company” as defined below) and Employee, for good and valuable consideration, the receipt and sufficiency of which\nhereby are acknowledged, knowingly and voluntarily agree as follows:\n1. Representations and Acknowledgments.\n(a) Consideration. In consideration for Employee’s agreement to enter into this Non-Solicitation and Non-Disclosure Agreement\n(the “Agreement”) and to be bound by its terms, Employee has received: (i) employment or continued employment; (ii) access to Company\nrelationships and Confidential Information described herein; (iii) the ability to participate in the Company’s Points of Focus program, a Company\nstock incentive plan, and/or other similar Company-sponsored programs or plans; and/or (iv) other good and valuable consideration.\n(b) Confidential Information and Goodwill. The Company agrees that upon the commencement of Employee’s employment (if a\nnew Employee) or continuation of employment coinciding with the Employee’s execution of this Agreement (if a current Employee), the\nCompany will make available, give Employee access to, allow Employee to become familiar with, and allow Employee to acquire knowledge of\nthe Company, its Customers, employees, operations, pricing methods, delivery schedules, sources of supply, vendor information, supplier\narrangements, shipping and routing procedures and schedules, order routing and/or freight management software, specialized routine and/or\nfreight management strategy and procedures, financial information, and other Confidential Information of the Company and its Customers that\nwill assist and enhance Employee’s ability to perform Employee’s duties with the Company. Employee recognizes that Employee, on behalf of\nthe Company, will develop close relationships with, gain special knowledge of, and promote and develop the loyalty of said customers and\nvendors. The Company’s Confidential Information, the goodwill of its customers and vendors, and its relationship with its employees have been\nand will continue to be developed through the Company’s investment of substantial time, effort and money. Employee further recognizes that\nEmployee is in a position to unfairly convert the Company’s business, customer accounts, vendor relationships and goodwill of customers,\nvendors and employees for use by Employee and other Persons in competition with the Company, and that this would cause the Company to\nsuffer immediate and irreparable injury.\n(c) No Other Agreement or Understanding. Employee represents and warrants that Employee is not a party to any agreement or\nunderstanding which would impair Employee’s ability to enter into this Agreement or otherwise preclude or restrict Employee’s employment\nwith the Company, and that Employee’s execution of this Agreement and employment with the Company will not violate any other agreement or\nunderstanding to which Employee is bound.\n(d) Survival. If, after executing this Agreement, Employee: (i) is promoted to, assigned to or otherwise assumes one or more\npositions or functions other than or in addition to Employee’s position or functions at the time Employee signed this Agreement, regardless of\ntitle, or (ii) is transferred or assigned to or otherwise works for any affiliate, subsidiary or other\n1\ndivision or business unit of the Company, the terms of this Agreement shall continue to apply with full force and effect. Employee acknowledges\nand understands that unless and until a subsequent written Agreement is signed by all parties to this Agreement that expressly supersedes this\nAgreement, this Agreement will continue in full force and effect.\n(e) PRESERVATION OF AT-WILL EMPLOYMENT RELATIONSHIP. EMPLOYEE AGREES THAT NO PROVISION IN\nTHIS AGREEMENT SHALL BE CONSTRUED TO CREATE AN EXPRESS OR IMPLIED EMPLOYMENT CONTRACT OR A PROMISE\nOF EMPLOYMENT FOR ANY SPECIFIC PERIOD OF TIME. EMPLOYEE FURTHER ACKNOWLEDGES AND AGREES THAT\nEMPLOYEE’S EMPLOYMENT WITH THE COMPANY IS “AT WILL” (UNLESS EMPLOYEE ENTERED INTO A WRITTEN\nEMPLOYMENT CONTRACT EXPRESSLY PROVIDING THAT HIS/HER EMPLOYMENT IS NOT AT WILL AND SIGNED BY AN\nOFFICER OF US FOODS, INC. WHO IS AUTHORIZED TO DO SO) AND CAN BE TERMINATED AT ANY TIME BY THE COMPANY\nOR EMPLOYEE, WITH OR WITHOUT REASON, WITH OR WITHOUT NOTICE, AND WITH OR WITHOUT CAUSE.\n(f) Termination of Employment. Employee understands and agrees that the obligations and restrictions imposed under this\nAgreement shall apply after the termination of employment, regardless of whether such termination is voluntary or involuntary, or is with or\nwithout cause or notice.\n2. Definitions. For the purposes of this Agreement, the following terms shall have the following meanings:\n(a) “Associate” means an employee of the Company.\n(b) “Company” means US Foods, Inc., its subsidiaries, its parent company USF Holding Corp., any entity owned or controlled by\nUSF Holding Corp. or US Foods, Inc. as well as any other businesses that US Foods, Inc., may acquire or establish after the execution of this\nAgreement and any successors and assigns.\n(c) “Business of the Company” is the food and foodservice distribution business, including the acquisition, procurement, production,\nsale and distribution of food and related products, equipment, goods and services to restaurants, schools, hospitals, and other institutions or\nestablishments that serve food.\n(d) “Person(s)” mean all individuals, partnerships, corporations, limited liability companies, firms, businesses, and other entities,\nother than the Company.\n(e) “Confidential Information” means any information (in whatever form and whether or not recorded in any media) relating to the\nBusiness of the Company (whether constituting a trade secret or not) and including, but not limited to, customer and vendor lists or other\ndocuments containing the names and/or job titles of the principal contact(s) of each customer and/or vendor; customer and vendor documents,\nrouting arrangements, files, purchases and account history; vendor information; route lists of sales employees; pricing, margins, sales allowances,\ndiscounts, incentives and pricing strategies and policies; invoices; procurement strategies and pricing; marketing and product information; order\nguides or histories; sales data\n2\nfor any employee, product, customer or territory; sales and delivery schedules; credit terms, policies and information, including invoicing and\npayment records; information on customer or vendor preferences; promotional programs; financial information of the Company or its customers\nor vendors; the terms, conditions and structures of the Company’s contracts and agreements with customers, vendors and suppliers; information\npertaining to the Company’s methods of operation, processes, strategies and techniques, including strategies for identifying and satisfying the\nneeds of specific customers and types of customers; and lists containing personal and personnel information about other employees of the\nCompany, including but not limited to their home and business telephone, mobile and pager numbers, addresses, compensation terms, customers\nserved by and vendors assigned to such employees, and job performance; which (i) is or has been disclosed to Employee (or of which Employee\nbecame aware) as a consequence of or through his or her relationship to the Company, (ii) has value to the Company or would be of value (actual\nor potential) to a competitor of the Company, and (iii) is not generally known, or readily available by lawful means, to the public (including\ncompiled information that is not publicly available in such a consolidated form). Confidential Information shall not include any information that\nhas been voluntarily disclosed to the public by the Company (except where such public disclosure has been made by Employee without\nauthorization) or that has been independently developed and disclosed by others, or that otherwise has entered the public domain through lawful\nmeans.\n(f) “Pre-Termination Period” means the eighteen (18) month period immediately prior to the termination of Employee’s\nemployment with the Company.\n(g) “Inventions.” For purposes of this Agreement, “Inventions” shall mean all software programs, source or object code,\nimprovements, formulas, developments, ideas, processes, techniques, know-how, data, and discoveries, whether patentable or unpatentable,\neither conceived or reduced to practice by Employee while in the Company’s or an Affiliated Company’s employ, either solely or jointly with\nothers, and whether or not during regular working hours, or conceived or reduced to practice by Employee within one year of the termination of\nEmployee’s employment with the Company using Company Confidential Information.\n(h) “Company Inventions.” For purposes of this Agreement, “Company Inventions” shall mean any Invention that either:\n(1) relates, at least in part, at the time of conception or reduction to practice of the Invention, to:\ni.\nthe Company’s Business, projects or products, or to the manufacture or utilization thereof; or\nii. the Company’s and/or an Affiliated Company’s actual or demonstrably anticipated research or development; or\n(2) results, at least in part, from any work performed directly or indirectly by Employee for the Company; or\n(3) results, at least in part, from the use of the Company’s or an Affiliated Company’s equipment, supplies, facilities or trade\nsecret information.\n3\n3. Non-Disclosure of Confidential Information.\n(a) At no time, either during or after the termination of employment, shall Employee directly or indirectly obtain, disclose or use for\nEmployee or any Person, or aid others in obtaining, disclosing or using any Confidential Information of the Company, other than as may be\nrequired in the performance of duties for and as authorized by the Company. All Confidential Information is and shall remain the sole property of\nthe Company. The Company understands that under the current laws of certain states, restrictions on the use or disclosure of confidential\ninformation must be of a finite duration. Accordingly, the parties agree that should the law of such a state be applied to this Agreement, the\nrestrictions on the use or disclosure of Confidential Information that is not a trade secret (the restriction on the use or disclosure of which shall be\nunlimited by time) shall apply only for a period of two (2) years from the termination of Employee’ s employment with the Company, which\nperiod Employee acknowledges to be reasonable under the circumstances at the time of execution of the Agreement.\n(b) Notwithstanding anything to the contrary, this Agreement shall not prevent Employee from revealing evidence of criminal\nwrongdoing to law enforcement or prohibit Employee from divulging Confidential Information by order of court or agency of competent\njurisdiction. However, Employee shall promptly inform the Company of any such situations and shall take such reasonable steps to prevent\ndisclosure of Confidential Information until the Company has been informed of such requested disclosure and the Company has had an\nopportunity to respond to the court or agency.\n4. Return of Company Property and Confidential Information. All records, files, customer order guides, pricelists, photo/videographic\nmaterials, computers and computer related equipment (e.g . hardware, software, disks, electronic storage devices, etc.), cell phones, smart phones,\nBlackberries, personal data assistants, keys, equipment, access cards, passwords, access codes, badges, credit cards or other tangible material,\nand all other documents, including but not limited to Confidential Information, Employee receives, acquires, produces or has access to as a result\nof his or her employment with the Company (regardless of the medium in which any information is stored) (collectively “Property”), are the\nexclusive property of the Company. Upon the termination of Employee’s employment, Employee shall return to the Company all Property of the\nCompany and all copies thereof in Employee’s possession or control.\n5. Non-Solicitation of Restricted Customers.\n(a) For the one (1) year period following the termination of Employee’s employment with the Company, Employee shall not, directly\nor indirectly, (for Employee or any other Person, whether as an employee, owner, consultant, independent contractor, or in any other capacity) for\nthe purpose of providing products or services competitive with those conducted, authorized, offered or provided by the Company, solicit, market,\nservice, contact, sell to or attempt to sell to any Person(s):\n(1) to whom Employee sold products or services on behalf of the Company at any time during the Pre-Termination Period,\nincluding sales performed while Employee was in training or providing vacation or leave coverage for another Associate; or\n4\n(2) to whom the Company sold products or services and with whom Employee had contact on behalf of the Company in\nconnection with such sale at any time during the Pre-Termination Period; or\n(3) to whom the Company sold products or services at any time during the Pre-Termination Period and which sale was made\nthrough any Associate whom Employee directly or indirectly managed or supervised (at any level of management or supervision); or\n(4) with regard to whom, at any time during the Pre-Termination Period, Employee (or any Associate whom Employee directly\nor indirectly managed or supervised, at any level of management or supervision): (i) participated in the preparation of a written sales\nproposal or bid containing Confidential Information to such Person on behalf of the Company; (ii) participated in the setting of\nprices, margins, or credit terms for such Person(s) on behalf of the Company; or (iii) used or received or created or reviewed any\nConfidential Information relating to such Person(s) on behalf of the Company; or\n(5) who is, or functions as, a food broker or contract management company or group purchasing organization or otherwise\nrepresents one or more customers or negotiates on their behalf, and to whom or through whom Employee or any Associate whom\nEmployee directly or indirectly managed or supervised (at any level of management or supervision) sold products or services on\nbehalf of the Company at any time during the Pre-Termination Period.\n(b) A “Restricted Customer” is that and are those Person(s) identified in Section 5(a) and 5(b) herein.\n(c) Examples of indirect solicitation, marketing, servicing, contacting, selling to or attempting to sell to, include but are not limited to,\nproviding Confidential Information to a Person(s) regarding a Restricted Customer; advising or encouraging a Restricted Customer to reduce or\ncease doing business with the Company or to do business with a Person that provides products or services competitive with the Company;\nswitching or swapping sales, solicitation, or service responsibility for a Restricted Customer with an employee of a Person that is competitive\nwith the Company; participating in the supervision or management of any Person or employee of such Person, regardless of other intervening\nlevels of management or supervision, with regard to a Restricted Customer; participating in the setting of prices, credit terms or margins for a\nRestricted Customer; participating in developing and executing marketing and sales strategies and decisions affecting a Restricted Customer; and\nreceiving any personal benefit (present or future) in the event a Restricted Customer should do any business with a Person.\n5\n6. Non-Solicitation of Company Employees. For a period of one (1) year following Employee’s termination of employment with the\nCompany, Employee will not, directly or indirectly, on behalf Employee or for any other Person, entice, induce, encourage or solicit or attempt to\nentice, induce, encourage or solicit any individual then employed by the Company and with whom the Employee had work-related dealings as a\nco-employee of the Company to leave such employment with the Company (this provision is not intended to restrict communications addressed\nto the general public, such as advertising to fill open positions) nor will the Employee hire any such individual for any other Person during the\nsame one-year period following the Employee’s termination.\n7. Ownership of Inventions.\n(a) Employee shall disclose all Inventions promptly and fully to the Company.\n(b) Except as excluded in Section 7(e) below, Employee hereby assigns, and agrees to assign, to the Company all of Employee’s\nright, title and interest in and to all Company Inventions and agrees that all such Company Inventions shall be the Company’s sole and exclusive\nproperty to the maximum extent permitted by law.\n(c) Employee shall at the request of the Company (but without additional compensation from the Company): (i) execute any and all\npapers and perform all lawful acts that the Company deems necessary for the preparation, filing, prosecution, and maintenance of applications for\nUnited States patents or copyrights and foreign patents or copyrights on any Company Inventions, (ii) execute such instruments as are necessary\nto assign to the Company or to the Company’s nominee, all of Employee’s right, title and interest in any Company Inventions so as to establish or\nperfect in the Company or in the Company’s nominee, the entire right, title and interest in such Company Inventions, and (iii) execute any\ninstruments necessary or that the Company may deem desirable in connection with any continuation, renewal or reissue of any patents in any\nCompany Inventions, renewal of any copyright registrations for any Company Inventions, or in the conduct of any proceedings or litigation\nrelating to any Company Inventions. All expenses incurred by the Employee by reason of the performance of any of the obligations set forth in\nthis Section 7(e) shall be borne by the Company.\n(d) Concurrent with Employee’s execution of this Agreement, Employee attaches a list and brief description of all unpatented\ninventions and discoveries, if any, made or conceived by Employee prior to Employee’s employment with the Company and that are to be\nexcluded from this Agreement. If no such list is attached at the time of execution of this Agreement, it shall be conclusively presumed that\nEmployee has waived any right Employee may have to any such invention or discovery which relates to the Company’s Business.\n(e) Provisions (a) through (d) of this Section 7 regarding assignment of right, title and interest do not apply to Inventions for which no\nequipment, supplies, facility or trade secret information of the Company was used and which was developed entirely on Employee’s own time,\nunless (i) the Inventions relate either to the business of the Company, or to the Company’s actual or demonstrably anticipated research or\ndevelopment, or (ii) the Inventions result from any work directly or indirectly performed by the Employee for the Company.\n6\n8. Non-Impairment of Common Law. Nothing in this Agreement shall relieve Employee of any duties or obligations Employee has to the\nCompany under statutory or common law, which include but are not limited to: fiduciary duties, the duty of loyalty, and the duty not to tortiously\ninterfere with business relationships.\n9. Reasonable and Necessary; Severability; Enforceability; Non-Waiver. The terms and provisions of this Agreement are severable and\nif any term or provision is held to be unenforceable, it shall be enforced to the maximum extent allowable under the law and reformed or severed\nto the minimum extent necessary to render it or the Agreement enforceable. Any such alteration shall not affect the validity and enforceability of\nany other term or provision. Employee acknowledges that the obligations contained in this Agreement are not indivisible to any extent but are\nfully divisible and reformable or severable as legally necessary whether through alteration of a word, clause or sentence. The Company’s failure\nto act upon any breach of this Agreement or waiver of any such breach shall not constitute a waiver of any preceding or succeeding breach, or of\nany other right.\n10. Waiver of Jury Trial. Any action, lawsuit, demand, claim or counterclaim over this Agreement or any of its terms shall be resolved by\na judge alone, and both parties hereby expressly waive and forever disclaim the right to a trial before a civil jury.\n11. Notification. If, within the one (1) year after the termination of Employee’s employment, the Employee provides services as an\nemployee, independent contractor or consultant, owner or in any other capacity, whether or not for compensation, to any Person that offers\nproducts or services competitive with those provided by the Company, then Employee shall promptly provide the Company with the following\ninformation about such Person: the name, address and telephone number of the location to which Employee is assigned, and his or her job title.\nEmployee shall promptly provide any such Person with a copy of this Agreement, and employee consents to the Company’s right, at any time, to\nnotify such Person of this Agreement, as well as the details of any alleged violations thereof.\n12. Non-Disparagement. During and after employment with the Company, Employee shall not divulge, disclose or communicate to others,\nin any manner whatsoever, information or statements that disparage or are intended to disparage the Company or its business reputation.\n13. Remedies for Breach. Employee agrees that any breach of this Agreement by Employee will cause the Company to suffer immediate\nand irreparable injury, for which there is no adequate remedy at law. In the event of a breach or threatened breach of any of the terms of this\nAgreement, Employee agrees the Company shall be entitled to seek and obtain enforcement of this Agreement by means of a decree of specific\nperformance, a temporary restraining order, a preliminary or permanent injunction, and any other remedies at law or equity which may be\navailable, including the right to receive monetary damages. Employee shall reimburse the Company for all reasonable attorneys’ fees and costs\nincurred by the Company in enforcing this Agreement.\n14. Other Agreements. In the event Employee executed other written agreements relating to this subject matter with the Company, and/or\nin the event Employee enters into other\n7\nwritten agreements that contain provisions similar to the provisions contained herein, all such provisions shall be interpreted to provide the\nCompany with cumulative rights and remedies and the benefits and protections provided to the Company under each such agreement shall be\ngiven full force and effect. No amendment, waiver or revocation of this Agreement shall be effective unless set forth in writing expressly stating\nthe amendment, waiver or revocation and signed by an authorized officer of the Company.\n15. Successors and Assigns. Employee expressly agrees that this Agreement, including the rights and obligations hereunder, may be\ntransferred and/or assigned by the Company without the further consent of Employee, and that this Agreement is for the benefit of and may be\nenforced by the Company, its present and future successors, assigns, subsidiaries, affiliates, and purchasers, but is not assignable by Employee.\n16. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without\napplying its conflicts of laws principles. The exclusive venue for any litigation between Employee and Company based upon any fact, matter or\nclaim arising out of or relating to this Agreement shall be the state or federal courts located in Chicago, Illinois, and Employee hereby consents\nto any such court’s exercise of personal jurisdiction over him/her for such purpose.\n17. Section Headings. The headings of sections contained in this Agreement are inserted only as a matter of convenience and for reference\nand in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.\nEmployee, intending to be legally bound, hereby acknowledges that he or she: has read this Agreement in its entirety and understands all of its\nterms and conditions; is entering into this Agreement voluntarily, without coercion from any source; and agrees to abide by all of the terms and\nconditions of this Agreement. Employee further represents that any questions regarding this Agreement have been answered by the Company to\nthe satisfaction of the Employee.\nUS FOODS, INC.\nEMPLOYEE\nBy:\n/s/ Juliette Pryor\n/s/ Pietro Satriano\nOfficer Signature\nEmployee Signature\nPrinted Name: Juliette Pryor\nPrinted Name: Pietro Satriano\nTitle:\nExecutive Vice President, General Counsel and\nChief Compliance Officer\nTitle:\nPresident and CEO\nDate:\n7/21/2015\nDate:\n7/21/2015\n8